W.C. No. 4-512-314Industrial Claim Appeals Office.
April 21, 2003
ORDER OF REMAND
The pro se claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which determined the claimant failed to prove a compensable low back injury and, therefore, denied and dismissed the claim for workers’ compensation benefits. The claimant contends, inter alia, that the ALJ improperly precluded her presentation of rebuttal testimony. We set aside the order and remand for further proceedings
The claimant alleged she suffered a low back injury in late April or early May 2000 while lifting two five-gallon buckets of paint at work. (Tr. p. 25). The claimant reported to several physicians that the injury was caused by moving a sleeper couch during the weekend of May 10, 2000.
The respondents offered the testimony of the claimant’s co-worker, Wayne Reed, (Reed) who stated that in late April or early May the claimant told him she injured her back lifting two paint buckets, but added that she didn’t want to see a doctor or file a workers’ compensation report. (Tr. p. 84). Reed also stated that two to four weeks later he observed the claimant having trouble walking on a Monday morning so he asked her what the problem was. The claimant told him she had helped move a couch with her brother. (Tr. pp. 85, 89).
The claimant admitted she was involved in moving her household belongings to a new residence on May 10. However, she denied she moved a couch. (Tr. p. 36).
At the close of the respondents’ case in chief, the claimant called a relative to testify that the claimant did not move a couch during the weekend of May 10. The claimant’s attorney stated the testimony was offered to rebut the respondents’ theory that the claimant injured her back while moving a couch on May 10, 2000.
The respondents objected to the presentation of the proffered rebuttal testimony on grounds it did not directly refute their case-in-chief because they presented no testimony the claimant moved a couch on May 10. Rather, the respondents argued they only presented evidence the claimant told her co-worker she moved a couch. The ALJ agreed and therefore, excluded the disputed rebuttal testimony. (Tr. p. 99).
The ALJ ultimately determined the claimant gave inconsistent statements to the employer and the treating physicians concerning the cause of her back pain even when she had no incentive to lie. Consequently, the ALJ determined the claimant’s testimony about the alleged industrial accident was not credible and that the claimant failed to prove by a preponderance of evidence that her low back pain was the result of an injury arising out of and in the course of employment.
Fundamental due process of law requires that parties be afforded a reasonable opportunity to confront opposing witnesses and present evidence which supports their position. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076, (Colo.App. 1990). “Rebuttal” testimony refers to evidence presented by the proponent of a claim to refute evidence presented in the opponent’s case-in-chief. See People v. Lewis, 180 Colo. 423, 506 P.2d 125 (1973); Wigmore on Evidence, § 1873 (1976).
The ALJ has wide discretion to control the timing and conduct of administrative hearings, and we may not interfere with the ALJ’s exclusion of evidence in the absence of an abuse of discretion. IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803
(Colo.App. 1988); Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986). The appellate test for an alleged abuse of discretion is whether, under the totality of circumstances, the ALJ’s ruling exceeds the bounds of reasons as where it is not supported by the record or the applicable law. 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).
The Rules of Evidence applicable in the district courts of Colorado are to be applied in workers’ compensation hearings. Section 8-43-210, C.R.S. 2002. In Colorado, the rule is that a party may introduce in rebuttal competent evidence which explains, refutes, counteracts or disproves the opposing party’s proof. People v. Lewis, supra. This is true regardless of whether the evidence might have been offered as part of the proponent’s case in chief. People v. Lewis, supra; Taylor v. Mazzola, 150 Colo. 553, 375 P.2d 96 (1962); People v. Enriquez, 42 Colo. App. 309, 597 P.2d 1048 (1979).
Here, the claimant anticipated the respondents would argue her back condition was caused by an injury while moving a couch. Consequently, the claimant sought to prove that her reports of moving a couch were untrue by providing eye witness testimony that the claimant did not move any couch during the weekend of May 10.
Under these circumstances, we conclude the ALJ unduly restricted the claimant’s right to present evidence in support of her position when he precluded the claimant from presenting the disputed rebuttal testimony. Further, we are unable to say that this was harmless error because of the ALJ’s statement that the claimant’s statement to Reed that “she injured her back lifting a couch with her brother is credible.” Evidence the claimant did not move any couch during the weekend of May 10 might have caused the ALJ to assess the evidence differently.
Accordingly, the ALJ’s order must be set aside and remanded for further proceedings. On remand, the ALJ shall receive the proffered rebuttal testimony and such additional evidence as the ALJ, in the exercise of his discretion, chooses to accept.
In view of our remand it is premature to consider the claimant’s further arguments in support of her contention that the ALJ erroneously denied the claim for workers’ compensation benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 10, 2002, is set aside and the matter is remanded to the ALJ for further proceedings consistent with the views expressed herein.
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. 2002. 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 April 21, 2003 to the following parties:
Angelia Rudolph, 1412 Connecticut Pl., Ft. Collins, CO 80538
All American Kan Build, c/o Heartland Homes 7 Willow Wood, P. O. Box 104, Lees Summit, MO 64063-0104
Transportation Insurance, c/o CAN Insurance Co., 10333 E. Dry Creek Rd., Englewood, CO 80112
Employers Mutual Casualty Co., P. O. Box 441098, Aurora, CO 80044-1098
CNA Insurance Co., P. O. Box 17369 T. A., Denver, CO 80217
John M. Lebsack, Esq., 950 17th St., 21st floor, Denver, CO 80202 (For Respondents All American Kan Build and Transportation Insurance)
Lynda S. Newbold, Esq., 999 18th St., #1755, Denver, CO 80202 (For Respondents All American Kan Build and Employers Mutual Casualty Co.)
BY: A. Hurtado