W.C. No. 4-564-352Industrial Claim Appeals Office.
April 23, 2004
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Klein (ALJ) which denied and dismissed the claim for an occupational disease. The claimant argues the ALJ failed to consider pertinent evidence, failed to consider one of the claimant’s theories of the case, and abused his discretion by refusing to permit the endorsement of a “rebuttal witness.” We affirm.
The claimant worked in three different jobs for the respondent-employer (Grand Oaks) between 1980 and December 2001. The claimant was a cook until 1996, a dietary supervisor until the fall of 1999, and a social services assistant until the end of her employment. In December 2002, the claimant filed a claim for benefits alleging that she sustained an occupational disease due to lifting, twisting, and bending which affects both upper extremities, both knees, and her back and neck.
However, the ALJ found the claimant failed to prove an occupational disease caused by her duties of employment. Instead, the ALJ credited the opinions of the respondents’ independent medical examination physician, Dr. Lesnak, who opined the claimant’s joint symptoms are caused by her morbid obesity of longstanding. The ALJ also found that none of the voluminous medical records indicate the claimant’s joint pain is related to her employment, and the claimant presented no “medical evidence definitively stating that her current complaints of `joint pain’ are related to her long employment with Grand Oaks.” Finally the ALJ credited the testimony of the claimant’s supervisor that the claimant’s duties as a dietary supervisor and social services assistant were not as strenuous as the claimant testified, and the claimant did not complain that her duties caused her joint pain. Consequently, the ALJ denied and dismissed the claim for benefits.
I.
The claimant contends the evidence does not support the ALJ’s finding that she failed to prove a compensable occupational disease caused by her employment. Specifically, the claimant argues the ALJ failed to consider that she prepared approximately 1.5 million meals over the course of her employment and did not evaluate the impact of this activity on her condition. The claimant further argues that it is “beyond reason” for the ALJ to have found that no medical records support the claimant’s position. We perceive no error.
The claimant was required to prove that she sustained an occupational disease proximately caused by the conditions of her employment. Section 8-40-201(14), C.R.S. 2003, § 8-41-301(1)(c), C.R.S. 2003; Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). Whether the claimant has met the burden of proof is a question of fact for determination by the ALJ. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). Although causation need not be proven with medical evidence, where expert opinion is presented it is for the ALJ to assess its weight and credibility. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Because causation is a factual issue, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. This standard of review requires us to view the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). Further, when expressing findings of fact and conclusions of law the ALJ is not held to a standard of absolute clarity. The findings are sufficient if they reveal the legal and factual bases of the order, and evidence and inferences not discussed are considered to have been rejected. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Here, the testimony of Dr. Lesnak and that of the claimant’s coworkers constitutes ample evidence in support of the ALJ’s finding that the claimant failed to prove a compensable occupational disease. While the ALJ might have inferred from the claimant’s testimony that her activities at Grand Oaks caused or aggravated arthritis, the ALJ implicitly rejected this construction of the evidence by crediting Dr. Lesnak and the coworkers’ testimony. The failure to discuss the alleged number of meals prepared does not constitute error based on this record and the ALJ’s explicit findings.
Neither do we perceive any error in the ALJ’s finding that no medical records indicate the claimant’s joint symptoms are related to her work at Grand Oaks. (Finding of Fact 13). The only medical record specifically identified by the claimant as contradicting this finding is an August 1, 2002, report from Kaiser Permanente stating the claimant has a long history of joint pain, including 20 years of knee pain, and the knee pain is “exacerbated by activity.” However, this document does not describe the claimant’s work as a causative factor in the joint pain, and specifically notes the claimant “believes the [knee] pain is secondary to weight gain.” Moreover, Dr. Lesnak testified that he reviewed the medical records and they do not associate the claimant’s symptoms with her employment. (Tr., July 9, 2003, Pp. 82-83).
II.
The claimant also argues the ALJ failed to consider whether the obesity itself constitutes an occupational disease. The claimant asserts that “constant exposure to food on the job” caused her to become morbidly obese, and “no explanation has been tendered as to how such massive ballooning could occur.” (Claimant’s Brief at p. 6). However, we agree with the respondents that the claimant did not present this issue to the ALJ and, consequently, she may not raise it on appeal.
As noted, the claim for compensation states the claimant is seeking compensation for an occupational disease affecting her joints, and this disease was caused by lifting, twisting and bending. This theory of the case was repeated in the claimant’s answers to interrogatories. Nothing in the application suggests the claimant was contending that obesity was a separate occupational disease caused by “exposure to food.” Indeed, we find no part of the claimant’s testimony indicating that she was excessively consuming the employer’s food, or that the presence of food at the work site was particularly tempting. At no time prior to or during the hearing did claimant’s counsel argue to the ALJ that the claimant’s obesity constituted a compensable occupational disease, nor was that theory advanced in the claimant’s post-hearing position statement.
Thus, the claimant’s appeal is the first time she has argued that obesity is a separately compensable condition, and such issues may not be raised for the first time on appeal. See Kuziel v. Pet Fair, Inc., 948 P.2d 103 (Colo.App. 1997). To the extent the claimant may be contending the issue was tried by consent, we disagree. Parties are entitled to reasonable notice of the issues and evidence to be considered so that they may confront adverse evidence, present evidence in support of their positions, and make argument concerning the issues to be decided. Major Medical Insurance Fund v. Industrial Claim Appeals Office, 77 P.3d 867 (Colo.App. 2003). Nothing in this record may plausibly be construed as demonstrating the respondents were notified the claimant would seek benefits on the theory that obesity is a compensable occupational disease. Cf. Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987) (issue of average weekly wage tried by consent where claimant raised average weekly wage at commencement of the hearing, the respondents did not object, and the respondents presented evidence on the issue).
III.
The claimant next contends the ALJ erred in denying his “notice” to endorse Dr. Glassman as a “rebuttal witness.” This motion was filed after the initial hearing on July 9, 2003, and after the claimant rested her case in chief and the respondents had presented substantial portions of Dr. Lesnak’s testimony. The claimant argued that Dr. Glassman would rebut the opinions of Dr. Lesnak, and that many of Dr. Lesnak’s testimonial opinions went beyond his written report tendered as evidence on July 9.
Initially, we agree with the respondents that the claimant failed to make a sufficient offer of proof on which to predicate error. The claimant did not submit a written report or any other offer of proof which would show that Dr. Glassman’s opinions could affect the outcome of the case, or that he actually disagreed with any opinion offered by Dr. Lesnak. Indeed, the motion to endorse Dr. Glassman was filed so quickly after the first hearing that it is doubtful that Dr. Glassman ever examined the claimant or any pertinent medical records. Thus, the “substance” of Dr. Glassman’s opinions was never made known, and the failure to permit his endorsement and consequent testimony does not form the basis of any error. C.R.E. 103(a)(2).
Further, as argued by the respondents in their response to the notice to endorse Dr. Glassman, it is not likely the claimant was actually attempting to endorse a “rebuttal witness.” Indeed, a true rebuttal witness may testify without regard to endorsement. Rule of Procedure VIII (A)(6), 7 Code Colo. Reg. 1101-3 at 22. Of course, had Dr. Glassman been called as an unendorsed rebuttal witness, the ALJ could have exercised his discretion and determined whether to permit the testimony at the time it was offered. In re Marriage of Antuna, 8 P.3d 589 (Colo.App. 2000) (admission of rebuttal testimony is within discretion of trial judge) IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803
(Colo.App. 1988) (ALJ has wide discretion to control evidentiary proceedings).
It is more likely, as the respondents argued to the ALJ in their objection to the notice to endorse, that the claimant was attempting to endorse Dr. Glassman in an attempt to circumvent the rules governing the endorsement of witnesses. Rule VIII (A)(5), 7 Code Colo. Reg. 1101-3 at 21, requires that witnesses be endorsed on the application for hearing and response thereto, and prohibits the addition of witnesses unless the parties agree or the ALJ finds good cause. Rule VIII (A)(6) prohibits parties from calling unendorsed witnesses at the hearing except for good cause shown. The question of whether good cause has been shown is a discretionary determination for the ALJ. Dee Enterprises v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA2040, July 31, 2003); One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 501
(Colo.App. 1995).
Here, the claimant stated in her response to the objection to endorsement of Dr. Glassman that the “respondents could have put on much less of a case and they are the cause of the fact that the claimant has to rebut the all encompassing, very broad, very extensive opinions” of Dr. Lesnak. The claimant’s assertions notwithstanding, a comparison of Dr. Lesnak’s prehearing report and his hearing and deposition testimony reveals nothing which indicates unfair surprise or testimony which could not have been anticipated through reasonable use of discovery. Indeed, the essence of Dr. Lesnak’s opinion, that the claimant’s symptoms were caused by obesity and not the conditions of her employment, was fully disclosed in the report filed before the hearing. (Respondents’ Exhibit A, pp. 10 and 11).
Moreover, the claimant made a deliberate tactical decision not to obtain and submit an expert medical opinion. In answer to the respondents’ pre-hearing interrogatory, the claimant stated that she intended to rely on medical reports and her own testimony. The ALJ could reasonably conclude that to permit the claimant to obtain and submit expert medical opinion after hearing a substantial portion of Dr. Lesnak’s testimony would create an unfair advantage and add a level of expense to the proceedings which the claimant could have avoided by the exercise of due diligence. Consequently, we perceive no abuse of discretion in the ALJ’s denial of the “notice” to endorse Dr. Glassman as a rebuttal witness. IPMC Transportation Co. v. Industrial Claim Appeals Office, supra.
Insofar as the claimant raises other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 7, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Robert M. Socolofsky
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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2003. 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 order were mailed to the parties at the addresses shown below on April 23, 2004 by A. Hurtado.
Delia Perez, 422 Sunshine Way, Brighton, CO 80601
Grand Oaks Care Center, 1150 Oak St., Lakewood, CO 80215
Zach Nicol, American Compensation Insurance Company, P. O. Box 390327, Minneapolis, MN 55439
Jack Kintzele, Esq., 1317 Delaware St., Denver, CO 80204 (For Claimant)
Brad J. Miller, Esq., 5660 S. Quebec St., #130-D, Greenwood Village, CO 80111 (For Respondents)