W.C. Nos. 3-968-054, 4-149-157, 4-149-161Industrial Claim Appeals Office.
December 11, 1995
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Gandy (ALJ), which awarded permanent partial disability benefits based upon impairment of seventeen percent as a whole person. We affirm.
The claimant sustained a compensable back injury in 1989. Relying principally on the report of Dr. Harder, which rated the claimant as suffering from a medical impairment of nineteen percent as a whole person, the ALJ determined that the claimant was entitled to permanent partial disability benefits based upon disability of seventeen percent as a whole person.
On review, the respondents’ contention is that they were denied due process of law because the ALJ refused to permit live testimony by their vocational rehabilitation expert. The respondents point out that the claimant was allowed to present testimony by her vocational expert. We reject this argument.
We do not dispute that, as a general matter, due process of law requires that parties be afforded the opportunity to confront adverse witnesses and present evidence and argument in support of their position Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). However, a party may either expressly or impliedly waive due process rights. Robbolino v. Fischer-White Contractors, 738 P.2d 70
(Colo.App. 1987). Moreover, due process of law does not usually require the ALJ to hear live testimony so long as the ALJ reviews a transcript and the pertinent documentary evidence. Ski Depot Rentals, Inc. v. Lynch, 714 P.2d 516 (Colo.App. 1985).
Here, the record does not support the respondents’ assertion that the ALJ denied them an opportunity to present live testimony by their vocational expert. To the contrary, the ALJ concluded, at the close of the claimant’s case, that the claimant failed to make a prima facie showing of permanent total disability. The ALJ then inquired concerning the parties’ positions on permanent partial disability. Counsel for the claimant stated that the claimant intended to rely on the opinion of Dr. Harder. At that point, the ALJ inquired whether counsel for respondents wished to present “rebuttal” evidence on the issue of permanent partial disability, but counsel for the respondents declined this opportunity. (Tr. p. 49). Thus, the respondents waived their due process right to present testimony.
In any event, we agree with the claimant that any error was harmless. The respondents submitted an extensive report authored by their vocational expert, and the report contained the expert’s opinion concerning the claimant’s permanent partial disability. At no point during the hearing did the respondents make an offer of proof that the expert would testify to facts or opinions not contained in the report. Consequently, there was no error. C.R.E. 103(a)(2) (where evidence is excluded, the party must make an offer of proof in order to raise issue on appeal); C.R.E. 403 (ALJ need not allow needless presentation of cumulative evidence).
IT IS THEREFORE ORDERED that the ALJ’s order, dated March 1, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed December 11, 1995 to the following parties:
Marion Perea, 3617 11th Ave., Evans, CO 80620
The Villa at Greeley, Inc., 1750 Sixth Ave., Greeley, CO 80631-5814
D. Thomas, Esq., Colorado Compensation Insurance Authority — Interagency Mail
John Hoyman, Esq. and Timothy Ukockis, Esq., 1115 11th Ave., Greeley, CO 80631
(For Claimant)
Bruce B. McCrea, Esq. 1873 S. Bellaire St., #1400, Denver, CO 80222
(For Respondents)
By: ______________________________