W.C. No. 4-439-741Industrial Claim Appeals Office.
February 15, 2002
FINAL ORDER
The claimant seeks review of the orders of Administrative Law Judge Friend (ALJ) dated October 12, 2001, and October 16, 2001, which denied her requests for additional workers’ compensation benefits. We affirm.
Based upon the evidence presented at a hearing on September 18, 2001, the ALJ found the claimant suffered a compensable right leg contusion on October 18, 1999. The claimant suffered a previous right ankle injury in 1997 which was diagnosed as a lateral malleolus fracture.
On December 1, 1999, Dr. Sanidas placed the claimant at maximum medical improvement (MMI) from the 1999 injury with zero permanent impairment. When Dr. Sanidas reexamined the claimant on August 30, 2000, he noted the claimant had stasis dermatitis on the right leg which was not present on December 1. Nevertheless, Dr. Sanidas opined the claimant remained at MMI for the industrial injury.
On August 30, 2000, Dr. Brunworth conducted a Division-sponsored independent medical examination (DIME). Although Dr. Brunworth observed significant swelling of the right ankle and bilateral lower extremity edema, she agreed with Dr. Sanidas’ opinions on MMI and permanent impairment. Dr. Watson issued a similar opinion on July 25, 2001.
Relying on the opinions of Dr. Sanidas, Dr. Brunworth and Dr. Watson, the ALJ determined the claimant failed to prove the stasis ulcers were causally related to the 1999 industrial injury. Therefore, in an order dated October 12, 2001, the ALJ denied the claimant’s requests for further medical treatment, permanent disability benefits, and disfigurement benefits.
The claimant timely appealed the October 12 order and moved to reopen the record to present “newly discovered” evidence consisting of treatment records from Dr. Annest and Dr. Waintrub. The claimant’s attorney contended the claimant was so emotionally distraught over a wrongful death action related to the death of her son that she was unable to assist her attorney in the litigation of her workers’ compensation claim, and neglected to report she had treated with Dr. Waintrub. Consequently, Dr. Waintrub’s treatment records had not “surfaced” prior to October 10, 2001, asserted claimant’s counsel.
In an order dated November 16, 2001, the ALJ found the claimant failed to establish due diligence in securing Dr. Waintrub’s records. Therefore, the ALJ denied the claimant’s post-hearing request to present Dr. Waintrub’s reports.
The claimant timely appealed the November 16 order and requested a transcript of the hearing on September 18, 2001. On December 17, 2001, the ALJ denied the transcript request on grounds it was untimely.
First, the claimant contends the ALJ erred in failing to reopen the record to consider “newly discovered” medical evidence. We perceive no reversible error.
An ALJ was wide discretion to determine whether, after the apparent conclusion of the proceedings, it is appropriate to reopen the matter for the taking of additional evidence. Section 8-43-207(1)(j), C.R.S. 200 ;
§ 8-43-301(5), C.R.S. 2001; IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). Where a motion to reopen the record is based upon a desire to present “newly discovered evidence,” it is proper for the ALJ to consider whether the evidence could have been discovered prior to the hearing through the exercise of reasonable diligence. Kennedy v. Bailey, 169 Col. 43, 453 P.2d 808
(1969). Reasonable diligence is established where the proponent of the motion for a new trial demonstrates that the new evidence was not only unknown prior to the first hearing, but could not have been timely discovered through reasonable efforts. Buchanan v. Burgess, 99 Colo. 307, 62 P.2d 465 (1936). The ALJ may also consider whether the proffered evidence is likely to be outcome determinative. Potomac Insurance Co. v. Industrial Commission, 744 P.2d 765 (Colo.App. 1987). The legal standard on review of an alleged abuse of discretion is whether, under the totality of circumstances, the ALJ’s determination exceeds the bounds of reason as where it is unsupported by the law or the evidence. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
Here, the claimant sought to reopen the record to introduce a letter from Dr. Waintrub dated October 16, 2001, and a letter dated January 22, 2002, from Dr. Annest who treated the claimant for venous stasis insufficiency. However, it is clear these reports were generated after the claimant’s receipt of the ALJ’s October 12 denying benefits, and thus, these letters are not evidence which existed prior to the hearing on September 18.
In any case, Dr. Waintrub’s letter of October 16 states there is “no evidence of vascular, neural or bone damage that can be attributed to the old injury.” However, it does not contain any opinion concerning whether the claimant’s need for additional treatment is causally related to the 1999 industrial injury. Dr. Annest’s letter of January 22 contains Dr. Annest’s opinion that the claimant’s injuries on January 10, 1997, October 18, 1999 and September 6, 2000 “could each have been contributory” to the claimant’s venous insufficiency. However, Dr. Annest did not render an opinion concerning whether the 1999 injury probably contributed to the condition he treated.
The claimant also sought to submit the April 2000 through August 2001 hand written clinic notes of Dr. Waintrub. Although, not totally legible, these records do not appear to contain any direct statement which links the claimant’s right lower extremity problems to the 1999 industrial injury, and the claimant does not point to any particular evidence in the reports which supports her claim that the stasis ulcers were caused by the 1999 industrial injury. Rather, the claimant argues Dr. Waintrub’s records may “have relevant and outcome determinative information.” Under these circumstances, we cannot say the proffered evidence was of such persuasive force that it should be considered as potentially outcome determinative.
Moreover, the ALJ determined the claimant’s emotional state and inability to assist counsel may have been good cause for a continuance of the September 18 hearing. However, the ALJ found the claimant did not request a continuance, nor did she request relief of any kind until receipt of the adverse ruling on the merits. In the absence of a transcript of the hearing we must assume the ALJ’s findings are supported by substantial evidence in the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).
The ALJ was free to consider that claimant’s counsel must have been aware of the deficiencies in preparation before the hearing, but elected to proceed. The ALJ was not obligated to subject the respondents to the time and expense of a second hearing simply because counsel’s tactical decisions lead to an unsatisfactory result. IPMC Transportation Co. v. Industrial Claim Appeals Office, supra. Under these circumstances, we perceive no abuse of discretion in the ALJ’s refusal to grant an additional hearing to present the medical reports of Dr. Annest and Dr. Waintrub. Compare, Curry v. Industrial Commission, 672 P.2d 513 (Colo. 1983) (failure to consider late submitted evidence of critical importance and dispositive of ultimate question was abuse of discretion); Raffaelo v. Industrial Commission, 670 P.2d 805 (Colo.App. 1983).
The claimant also contends the ALJ erroneously determined she failed to prove a causal connection between her need for further treatment and the 1999 industrial injury. In support the claimant relies on her testimony concerning the severity of the 1999 industrial injury and the reports of Dr. Waintrub. She also contends all three attending physicians agreed the claimant’s symptoms represented a new injury or an aggravation of a pre-existing condition and the DIME physician did not rule out the existence of a new injury or compensable aggravation.
It is the claimant’s burden to prove a causal relationship between the industrial injury and the medical condition for which she seeks benefits. Section 8-43-301, C.R.S. 200 ; Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). The question of whether the claimant has sustained her burden of proof is a factual determination for resolution by the ALJ. City of Durango v. Dunagan, 939 P.2d 496
(Colo.App. 1997). Because the question is factual in nature we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. This standard requires us to review the evidence in the light most favorable to the prevailing party, and accept the ALJ’s resolution of conflicts in the evidence, and the plausible inferences which he drew from the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951) cf. Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941) (ALJ considered to possess specialized knowledge which renders him competent to evaluate medical evidence and draw plausible inferences from it).
Contrary to the claimant’s contention the ALJ did resolve conflicts in the medical evidence. The ALJ explicitly resolved the conflicts by crediting the opinions of Dr. Salidas, Dr. Watson and Dr. Brunworth. (Finding of Fact 6). See Regional Transportation District v. Jackson, 805 P.2d 1190 (Colo.App. 1991) (ALJ’s credibility determinations adequately informs reviewing court how ALJ resolved conflicts in the evidence).
Furthermore, the medical evidence the ALJ found persuasive contains substantial evidence to support the ALJ’s finding that the claimant failed to sustain her burden of proof on the issue of causation. Specifically, in a report dated August 11, 2000, Dr. Salidas opined that the 1999 industrial injury caused a contusion to the right leg which resolved and that the claimant’s symptoms of right ankle swelling were due to the 1997 ankle fracture. The DIME physician opined it was “highly unlikely” the claimant’s right ankle swelling was “secondary to the 10/18/99 incident.” Similarly, Dr. Watson opined the “stasis ulcers are not due to the contusion to her ankle from 1999.” Because the ALJ’s pertinent determinations are supported by substantial, albeit conflicting evidence they are binding on review. See Prestige Homes, Inc. v. Legouffe, 658 P.2d 850, 856 (Colo. 1983). Accordingly, it is immaterial the record contains evidence which, if credited, might support a contrary result. Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993).
IT IS THEREFORE ORDERED that the ALJ’s order dated October 12, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced 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. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed February 15, 2002 to the following parties:
Alice Marie Mitchell, 4532 Abilene St., Denver, CO 80239
Denver Public Schools, 900 Grant St., Denver, CO 80203
Curt Kriksciun, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
D. Dale Sadler, Esq., 400 S. Colorado Blvd., #600, Denver, CO 80246 (For Claimant)
Kathryn Kaeble Todd, Esq., 999 18th St., #3100, Denver, CO 80202
BY: Ann Pendroy