W.C. No. 4-508-221Industrial Claim Appeals Office.
March 11, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Henk (ALJ) which awarded permanent partial disability benefits under the schedule of disabilities. The claimant argues the ALJ improperly admitted videotape evidence which was not authenticated, nor properly disclosed before the hearing. The claimant further contends the shoulder injury warrants whole person medical impairment benefits. We affirm.
On June 11, 2001, the claimant sustained a compensable injury to her left shoulder while employed by respondent Cables End. On August 14, 2001, the claimant underwent shoulder arthroscopy which included a subacromial decompression and bursectomy.
The claimant reached maximum medical improvement in January 2002. The treating physician assigned a 5 percent upper extremity impairment based on reduced range of motion in the shoulder, which converted to a 3 percent whole person impairment. The claimant underwent a Division-sponsored medical examination (DIME). The DIME physician diagnosed parascapular myofascial dysfunction and assigned a 13 percent upper extremity impairment rating based on reduced range of motion and joint crepitus. This rating converted to an 8 percent whole person impairment.
The claimant applied for a hearing seeking an award of benefits for whole person impairment rather than the scheduled rating. The claimant testified that she continues to experience pain in the left upper extremity, the shoulder blade, and the neck. On cross-examination the claimant testified she is employed as a desk clerk at a motel, and the pain prevents her from listening to the phone on her “left side.” The claimant further testified she never lifts her arm above the shoulder.
The respondents then sought to introduce a videotape which showed the claimant using her left side to listen to a telephone while working at the motel, and showing her raising her arm above her head to close an automobile hatchback. The claimant objected that the videotape could not be authenticated because no investigator was endorsed as a witness. Claimant’s counsel also objected because he was unaware a videotape would be presented, and because the videotape was not provided to claimant’s counsel 20 days before the hearing. The ALJ overruled the notice objection because claimant’s counsel did not request discovery. The ALJ then permitted respondents’ counsel to attempt authentication of the videotape by questioning the claimant. The claimant admitted that she was the person depicted on the videotape and that the videotape was taken after she reached maximum medical improvement for the injury. (Tr. Pp. 44, 46-47, 50-52). The ALJ ruled the videotape was properly authenticated and admitted it as evidence in the case.
Following the hearing, the ALJ entered an order finding the claimant’s “functional impairment” did not extend beyond the left arm and is found on the schedule. The ALJ discredited the claimant’s testimony that she is unable to perform certain tasks because of the pain in her neck and shoulder. The ALJ also cited evidence that the claimant’s neck complaints did not begin until 3 months after the injury, and the DIME physician’s statement that there was no “obvious cervicogenic origin” to the pain complaints. Consequently, the ALJ awarded permanent partial disability benefits based on 13 percent of the left upper extremity.
I.
On review, the claimant first contends the ALJ erred in admitting the videotape evidence. The claimant argues the videotape could only be authenticated by an investigator. Further, the claimant argues the respondents failed to disclose the videotape as required by C.R.C.P. 26(a)(1)(B) and C.R.C.P. 16. Finally, the claimant argues the respondents failed to disclose the videotape as a form of a “vocational report” pursuant to Rule of Procedure VIII (I)(1), 7 Code Colo. Reg. 1101-3 at 30. We find no error.
The ALJ correctly ruled the claimant’s testimony was sufficient to authenticate the videotape. The purpose of authentication is to establish that “the matter in question is what its proponent claims.” C.R.E. 901. Further, authentication may be established through testimony by a witness with knowledge. C.R.E. 901(b)(1). In light of these principles, we have previously held that a claimant may authenticate a videotape depicting the claimant’s own activities. Copeland v. City of Aurora, W.C. No. 3-907-084 (April 15, 1991).
Here, the claimant identified herself as the person shown in the videotapes and gave sufficient testimony to establish the videotapes were taken after maximum medical improvement. Thus, the testimony is sufficient to establish the videotape is what the respondents claimed it was, a depiction of claimant’s physical ability after she reached stability for the work-related injury. Questions concerning editing and timing of the videotape went to its weight, not its admissibility.
The claimant argues the videotape should have been excluded because the respondents failed to disclose its existence as required by C.R.C.P. 26 and C.R.C.P. 16. The record does not reflect that the claimant objected based on the these rules of civil procedure. Therefore, the argument was waived. C.R.E. 103 (a)(1) (requiring party to state specific ground of objection).
In any event, we conclude the civil rules cited by the claimant are inapplicable in workers’ compensation cases. Rules of Civil Procedure apply in workers’ compensation cases only to the extent they are consistent with the Workers’ Compensation Act. Renaissance Salon v. Industrial Claim Appeals Office, 994 P.2d 447 (Colo.App. 1999). The rules cited by the claimant concern duties of pretrial disclosure in civil cases, and the management of civil lawsuits. In contrast, the Director of the Division of Workers’ Compensation has adopted comprehensive Rules of Procedure, including Rule VIII (E) and Rule VIII (I), governing discovery and prehearing disclosure in workers’ compensation cases. In our opinion, importation to the workers’ compensation system of the Rules of Civil Procedure cited by the claimant would be inconsistent with the Director’s regulations, and unreasonably complicate the process of adjudicating workers’ compensation cases. Indeed, we note that C.R.C.P. 26(a) itself provides the rule does not apply to various types of “expedited proceedings” in the district courts. Thus, even if the claimant raised this argument, we reject it.
The claimant next contends the videotape was a “vocational report” which was not timely disclosed to the claimant pursuant to Rule VIII (I)(1). That rule requires the disclosure of “vocational reports” be provided to the opposing parties at least 20 days before a hearing or the report will be excluded from evidence, absent a showing of good cause.
We reject the claimant’s assertion that the videotape is a “vocational report” because, in part, it depicts the claimant performing work at the motel. A “report” is a formal statement of the results of an investigation. See Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524
(Colo.App. 1996). The videotape was not a “formal statement” made by a professional for the purpose of describing the results of an investigation of the claimant’s vocational capacity, nor was the videotape introduced for the purpose of denying vocational rehabilitation. Rather, the videotape was first-hand evidence which exhibited the claimant’s physical ability to move parts of her body and perform various activities. Thus, Rule VIII (I)(1) did not apply to the videotape. Cf. Underhill v. Ready Mix Concrete Co., W.C. No. 4-217-697 (videotaped “reenactment” of injury was not a medical or vocational report under the rule).
We hasten to add the videotape might well have been discoverable had the claimant requested disclosure of this type of evidence under Rule VIII (E)(1). However, no such request was made in this case.
II.
The claimant next contends the evidence compelled the ALJ to find the claimant sustained functional impairment beyond the arm at the shoulder. The claimant notes her complaints of pain in the neck and shoulder blade, as well as medical evidence documenting a diagnosis of parascapular pain and limitations on activities. We find no error.
It is now well established that the question of whether the claimant sustained a “loss of an arm at the shoulder” within the meaning of §8-42-107(2)(a), C.R.S. 2002, or a whole person impairment compensable under § 8-42-107(8)(c), C.R.S. 2002, is one of fact for determination by the ALJ. In resolving this question, the ALJ must determine the situs of the claimant’s “functional impairment,” and the site of the functional impairment is not necessarily the site of the injury itself. Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996); Strauch v. Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996). Because the issue is factual, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002.
Here, the ALJ discredited the claimant’s testimony that whatever pain she felt caused functional impairment beyond the schedule. Although the medical evidence was relevant, it did not require the ALJ to find functional impairment beyond the arm at the shoulder. Indeed, the DIME physician noted there was no “cervicogenic” origin for the claimant’s pain. Because there is no basis to interfere with the ALJ’s resolution of the conflicts in the evidence, the order must be upheld.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 18, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
NOTICE This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,CO 80203, by filing a petition for review with the Court, within twenty(20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party mustserve a copy of the petition upon all other parties, including theIndustrial Claim Appeals Office, which may be served by mail at 1515Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed March 11, 2003 to the following parties:
Dawn Longhenry, c/o William F. Garcia, Esq., 912 8th Ave., Greeley, CO 80631
Management, Cables End, Inc., 3780 W. 10th St., Greeley, CO 80634
American Compensation Insurance Company, c/o Patty Enloe, RTW, Inc., P. O. Box 6541, Englewood, CO 80155-6541
William F. Garcia, Esq., 912 8th Ave., Greeley, CO 80631 (For Claimant)
Merrily S. Archer, Esq. and Douglas A. Thomas, Esq., 600 17th St., #1600N, Denver, CO 80202 (For Respondents)
By: A. Hurtado