W.C. No. 4-508-462Industrial Claim Appeals Office.
May 23, 2003
FINAL ORDER
The claimant pro se seeks review of an order of Administrative Law Judge Martinez (ALJ) which denied his claims for temporary and permanent disability benefits. We affirm.
The claimant was injured in a motor vehicle accident on July 5, 2001. The respondents admitted liability and paid temporary disability benefits from July 5, 2001 through August 15, 2002.
The claimant underwent a Division-sponsored independent medical examination (DIME) on May 13, 2002. The DIME physician determined the claimant to be at maximum medical improvement (MMI) as of September 2, 2001, and assigned a zero medical impairment rating based on findings that the claimant’s impairment was the result of preexisting conditions or symptom magnification.
The claimant applied for a hearing to contest the DIME physician’s opinions. Based on the evidence presented at a hearing on December 3, 2002, the ALJ found the claimant failed to sustain his burden to overcome the findings of the DIME physician. Therefore, the ALJ denied the claimant’s requests for medical impairment benefits and additional temporary total disability benefits. Further, the ALJ entered an order allowing the respondents recover overpaid temporary disability benefits. The claimant appealed.
In support of his petition to review, the claimant contends he was denied a fair hearing because the ALJ precluded his cross-examination of Dr. McLaughlin and refused to allow him to present testimony from his wife. The record does not support the claimant’s contentions.
We acknowledge that due process requires the parties be afforded an opportunity to confront adverse witnesses and present evidence in support of their positions. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). However, the ALJ is vested with broad discretion to determine the course of an evidentiary hearing. Denver Symphony Association v. Industrial Commission, 34 Colo. App. 343, 526 P.2d 685 (1974). We may not interfere with the ALJ’s ruling in the absence of an abuse of discretion. Hall v. Home Furniture Co., 724 P.2d 94
(Colo.App. 1986). The standard on review of an alleged abuse of discretion is whether the ALJ’s ruling 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).
The party who alleges an abuse of discretion has the burden to provide a record sufficient to show the error. If the appealing party fails to provide an adequate record, the correctness of the ALJ’s rulings must be presumed. See People v. Lawrence, 55 P.3d 155 (Colo.App. 2001).
Here, the claimant requested the free preparation of the hearing transcript on grounds he is indigent. However in an order dated January 30, 2003, the Director of the Division of Labor denied the claimant’s indigency application, and no transcript has been provided for review. Under these circumstances, the record is legally insufficient to support the claimant’s allegation that he was denied a fair hearing. See People v. Lawrence, supra.
Next, the claimant contests the ALJ’s finding that he failed to overcome the opinions of the DIME physician. We perceive no basis to disturb the ALJ’s determination.
Section 8-42-107(8), C.R.S. 2002, provides that the DIME physician’s findings on the issues of MMI and medical impairment, including a “finding that there is no permanent medical impairment,” may be overcome only by clear and convincing evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Because the rating of impairment necessarily requires the physician to determine losses caused by the industrial injury, the DIME physician’s determination that an impairment is or is not caused by the industrial injury must be overcome by clear and convincing evidence. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
Whether the claimant has presented sufficient evidence to overcome the DIME physician’s findings is a question of fact for resolution by the ALJ. Metro Moving Storage Co. v. Gussert, supra. We must uphold the ALJ’s factual determinations if supported by substantial evidence in the record and the applicable law. Section 8-43-301(8), C.R.S. 2002; Metro Moving Storage Co. v. Gussert, supra. The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ’s assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review is exceedingly narrow. Metro Moving Storage Co. v. Gussert, 914 P.2d at 415.
In the absence of a hearing transcript we are required to presume that 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’s findings are also supported by the medical reports of Dr. McLaughlin and the DIME report. Under these circumstances, the ALJ’s findings must be upheld on review. It is immaterial that the record contains some evidence which, if credited, might support a contrary determination. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985) (substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences). Therefore, we cannot alter the ALJ’s findings based on the claimant’s contention that medical records from the Veterans’ Administration Hospital and Dr. Davis indicate his permanent impairment is not the result of ap preexisting condition.
Moreover, we are unable to locate any authority, and the claimant cites none, in support of his contention that the DIME physician’s failure to file his report within 20 days of the date of the DIME appointment, as required by the Rules of Procedure, Part XIV(L)(2)(b), 7 Code Colo. Reg. 1103 at 51, renders the report invalid. Consequently, evidence that the DIME physician filed his report 9 days late did not preclude the ALJ from crediting the DIME physician’s opinions.
The claimant also contends the ALJ’s order which allows the respondents to recover overpaid temporary disability benefits violates § 8-42-101(4), C.R.S. 2002. Again we disagree.
Section 8-42-101(4) provides that once there has been an admission of liability or the entry of a final order finding that the employer or insurer is liable for the claimant’s medical expenses, “a medical provider shall under no circumstances seek to recover such costs or fees from the employee.” However, the statute does not preclude the insurer
from recovering overpaid indemnity benefits from the claimant. Indeed, § 8-43-207.5 C.R.S. 2002, expressly authorizes the ALJ to enter an order for the recovery of overpayments.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 18, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
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 May 23, 2003 to the following parties:
Joe Samora, 476 Melody Ln., Grand Junction, CO 81501
Mesability, Inc., 201 South Ave., Grand Junction, CO 81501-7807
Legal Department, Pinnacol Assurance — Interagency Mail
Merrily S. Archer, Esq. and Brad Miller, Esq., 1625 Broadway, #2300, Denver, CO 80202 (For Respondents)
BY: A. Hurtado