W.C. No. 4-524-716Industrial Claim Appeals Office.
February 12, 2003
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) which found the claimant sustained a compensable injury and awarded temporary disability and medical benefits. The respondents contend the ALJ improperly limited the scope of cross-examination and improperly discredited one of the respondents’ witnesses. We affirm.
The central issue in the case was whether the claimant, a truck driver, sustained a compensable injury when uncoupling a trailer on June 29, 2001. The claimant testified the injury occurred in Colorado Springs after the truck’s transmission failed, and it was necessary for the truck leasing company (Ryder) to deliver a new tractor.
The employer sought to discredit the claimant by establishing the claimant reported several dates of injury. During cross-examination of the claimant, the ALJ disallowed one question concerning the conflicting dates because he considered it argumentative. (Tr. Pp. 19-20). Relying on the attorney-client privilege, the ALJ also prevented the respondents from asking who directed the claimant to correct the date of injury as stated in an interrogatory. (Tr. P. 21).
The respondents presented the testimony of witness Whisker. Whisker stated he reviewed 30 to 50 pages of employer records and did not find evidence that Ryder performed a service call in Colorado Springs on June 29. He also produced a record showing the claimant did not work in Colorado Springs on June 28, one of the dates of injury previously reported by the claimant.
The ALJ found the claimant was honestly confused about the date of injury before the hearing, but the ALJ credited the claimant’s testimony that the injury occurred on June 29. The ALJ further found that Whisker’s testimony was “neither precise nor specific,” and therefore the ALJ did not find it persuasive. Thus, the ALJ found the claimant sustained a compensable injury on June 29 and awarded benefits.
I.
On review, the respondents contend the ALJ unreasonably restricted cross-examination of the claimant concerning the inconsistent dates of injury. We find no reversible error.
First, we agree with the respondents that parties must be afforded a reasonable opportunity to confront adverse evidence. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). However, the ALJ has wide discretion to control the course of evidentiary proceedings, and may set reasonable limits on the scope of cross-examination. IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988); Denver Symphony Association v. Industrial Commission, 34 Colo. App. 343, 526 P.2d 685 (1974). An ALJ does not abuse discretion unless the order is beyond the bounds of reason, as where it is unsupported by the law or contrary to the evidence. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867
(Colo.App. 2001).
As shown by Findings of Fact 19 and 23, the ALJ was fully aware from the evidence that the claimant gave conflicting dates of injury in various documents submitted before the hearing. Thus, the limitations placed on the respondents’ cross-examination did not prevent them from presenting one of the essential points of their defense. Moreover, we perceive no abuse of discretion in the ALJ’s determination that the question concerning the claimant’s alleged attempt to “explain away” the discrepancies was unnecessarily argumentative. Consistent with that ruling, the ALJ advised respondents’ counsel that he would be permitted to rephrase the question in a less objectionable way. (Tr. P. 20). Further, there was a reasonable basis for the ALJ to infer that the question concerning who advised the claimant to reconsider the date of injury risked a violation of the attorney-client privilege. Because the respondents were not precluded from presenting the essential points of the defense, and because the ALJ’s evidentiary rulings were reasonable, we conclude there was no abuse of discretion in the limitations placed on cross-examination. Denver Symphony Association v. Industrial Commission, supra.
II.
The respondents next contend the ALJ erred in discrediting the testimony of witness Whisker. The respondents assert that Whisker’s testimony was unequivocal, and that there was no basis for the ALJ’s finding the testimony was neither precise nor specific. We disagree.
We must uphold the ALJ’s factual findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. The weight and credibility of testimony is a matter for the ALJ as fact-finder Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
The respondents’ assertion notwithstanding, the record contains evidence from which the ALJ could find that Whisker’s testimony was too indefinite to warrant acceptance. Whisker was indefinite concerning the number of documents he reviewed, stating the number was between 30 and 50. Despite reviewing the records, the witness could not recall if they revealed any service calls in Colorado Springs in June 2001. Finally, the witness said he could not say whether or not the claimant was in Colorado Springs on June 29. In light of this testimony, the ALJ was certainly not obliged to credit the more definite aspects of Whisker’s testimony, and the failure to do so affords no basis for appellate relief.
Insofar as the respondents make other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 2, 2002, 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 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 must serve a copy of thepetition upon all other parties, including the Industrial Claim AppealsOffice, which may be served by mail at 1515 Arapahoe Street, Tower 3,Suite 350, Denver, CO 80202.
Copies of this decision were mailed _______February 12, 2003 to the following parties:
Kirk Allen Rex, 3381 W. 92nd Pl., Westminster, CO 80031
Victoria Young, Alliant Food Service, 11955 E. Peakview Ave., Englewood, CO 80111
Jennifer Page, Sentry Insurance, P.O. Box 8032, Stevens Point, WI 54481
Jack Kintzele, Esq., 1317 Delaware St., Denver, CO 80204 (For Claimant)
Ted A. Krumreich, Esq., 950 17th St., 21st floor, Denver, CO 80202 (For Respondents)
By: ________A. Hurtado_________________