W.C. No. 4-707-046.Industrial Claim Appeals Office.
August 15, 2008.
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FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Jones (ALJ) dated March 10, 2008, that held the respondent responsible for medical treatment, including a surgery on March 7, 2007, and ordered the respondent to pay temporary total disability benefits from that date forward. We affirm.
In support of her award of benefits the ALJ made the following findings of fact. The claimant sustained an injury on April 28, 2005, when she slipped and fell outside. She felt pain in her right hand and in the area of her coccyx. In May 2005, Dr. LeBlanc diagnosed low back strain. In July 2005, Dr. LeBlanc referred the claimant for an MRI. At the time the claimant complained of radiculopathy and mid-back pain. The MRI revealed a protruding disc at the L5-S1 level, lateralized to the left. The claimant did not have radicular pain into her left leg prior to her injury.
The claimant had scoliosis in the thoracic and upper lumbar regions of her spine, as well as migraines, protein C deficiency, and osteoporosis. These conditions predated her injury and she took Vicodin and Tylenol for back pain and migraines. However, her previous back problems did not prevent the claimant from participating in physical activities such as dancing. Dr. Reichhardt, a physiatrist, opined that the claimant’s injury aggravated her lumbar condition and caused her radicular symptoms. Dr. Viola, a neurosurgeon, believed that the claimant’s symptoms of back discomfort “related to her fall superimposed on her significant scoliotic deformity.” The claimant experienced improvement in her condition after physical therapy, but according to Dr. LeBlanc, still suffered from occasional weakness in her lower extremities and numbness. On May 12,
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2006, the claimant advised Dr. Viola that she experienced increased difficulty with her low back. Dr. Viola recommended a surgical consultation.
Dr. Kumar, an orthopedic surgeon, examined the claimant on November 8, 2006. He agreed with Dr. Viola that the claimant had “symptoms related to her fall superimposed on her significant scoliotic deformity.” He further opined that the claimant’s fall could have aggravated her spondylolisthesis. Dr. Kumar performed surgery and fused portions of the claimant’s spine; however, he was unable to perform a decompression from L3 to L5. Dr. Romagosa testified at the hearing and admitted that a lower spinal fusion cannot be done without addressing scoliosis above that level.
The ALJ credited the opinions of Drs. Reichhardt and Viola as to the claimant’s need for surgery. She found that the claimant’s preexisting scoliosis was aggravated by her industrial injury caused by a fall at work. The ALJ therefore ordered the respondent to pay for reasonably necessary medical treatment related to the claimant’s injury, including her surgery. The ALJ further awarded ongoing temporary total disability benefits from the date of her surgery forward.
I.
The respondent contends that the ALJ erred by finding that the claimant’s need for surgery was related to her work injury. According to the respondent the claimant’s preexisting spinal condition required surgery. In support of its contention the respondent refers to various medical evidence in the record indicating that the claimant’s scoliosis continued to trouble the claimant while her lower back symptoms from her work-related fall improved with pool therapy. Even so, the ALJ credited evidence in the record that supports her determination that the claimant’s need for back surgery
Here, the claimant satisfied the ALJ that a preponderance of the evidence established that her need for back surgery was proximately caused by her work injury. See Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337, 1339 (Colo.App. 1997) (right to medical benefits arises only when claimant establishes by preponderance of evidence that need for treatment proximately caused by work injury). Questions of causation are generally factual in nature, to be resolved by the ALJ after weighing the competing evidence. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Because the question of the need for medical treatment is one of fact, we must defer to the ALJ’s resolution of conflicts and inconsistencies in the record, and must uphold her findings if supported by substantial evidence. § 8-43-301(8), C.R.S. 2007; Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). The substantial evidence standard also requires that we view evidence in the light most favorable to the prevailing party. Thus, the overall scope of our review under the substantial evidence standard is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert,
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914 P.2d 411 (Colo.App. 2003). Although causation need not be proved by medical evidence, to the extent such evidence is offered, it is for the ALJ to assess its weight, credibility, and probative effect. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Furthermore, to the extent the testimony of a medical expert contained inconsistencies, or was subject to multiple interpretations, it was for the ALJ to resolve such conflicts, and we are bound by her resolution of conflicts in the medical evidence. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
We also note that the respondents are liable if employment-related activities aggravate, accelerate, or combine with a pre-existing condition to cause a need for medical treatment. Section 8-41-301(1)(c), C.R.S. 2007; Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337
(Colo.App. 1997). The issue of whether medical treatment is necessitated by a compensable aggravation or a worsening of the claimant’s pre-existing condition is also one of fact for resolution by the ALJ based upon the evidentiary record. See Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970); F.R. Orr Construction v. Rinta, 717
P.2d 965 (Colo.App. 1985). Accordingly, we review that determination under the substantial evidence standard as well.
Notwithstanding the respondent’s contentions, substantial evidence supports the ALJ’s determination that the claimant’s work injury was sufficiently related to her subsequent medical condition to require medical treatment in the form of surgical fusions of her spine. In this regard the ALJ expressly credited the claimant’s testimony, together with the medical reports of Drs. Reichhardt and Viola as to the cause of the claimant’s need for surgery. Order at 5, ¶¶ 4-5.
The claimant testified about her health before and after the work-related injury. She described having scoliosis, or a curvature of the spine, in the midsection of her back prior to her industrial injury. The claimant testified that her scoliosis had no effect on her daily activities and that she “danced . . . scrubbed, waxed, cleaned, worked, vacuumed, went wherever [she] wanted, did whatever [she] wanted.” She also denied that her scoliosis worsened with age. Schulte Depo. at 11. The claimant went on to describe her physical condition following her fall at work. She described the actual diminishment of her physical stature. Schulte Depo. at 7-8, 11-12. She also stated that pain would radiate down her left leg and that she had difficulty eating and digesting food. Schulte Depo. at 8, 10, 13.
Dr. Viola provided a “neurological followup” of the claimant. He reported that the claimant’s pain that was “mainly referable to the scoliotic deformity . . . improved dramatically with pool therapy.” He reported that the claimant’s symptoms started with her fall at work, described the claimant’s “increasing difficulties with her deformities” and recommended a consultation for corrective surgery. Exhibit 2 at 1. Dr. Reichhardt
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examined the claimant and described her as having “a significant pre-existing lumbar condition.” However, he opined that the preexisting condition “was aggravated by her work-related injury” and that the claimant’s “radicular symptomatology was caused by her work-related injury.” Furthermore, he agreed with the recommendation of a neurosurgical consultation. Exhibit 1 at 2.
Medical evidence in the record that would support the respondent’s contention that the claimant’s need for surgery was due to her preexisting scoliosis did not compel the ALJ to make corresponding findings. See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090, 1092 (Colo.App. 1999) (findings supported by substantial evidence binding on review notwithstanding existence of conflicting evidence). The ALJ’s determination that the claimant’s need for back surgery is causally related to her industrial injury is supported by substantial evidence and, therefore, is binding on review.
II.
The respondent further contends that the ALJ committed reversible error by allowing the claimant to depose a doctor after the close of the hearing. Following the hearing the claimant filed a written motion to depose Dr. Kumar. In support of her motion, the claimant asserted that her counsel was unable to “obtain any clear guidance” from her prior to hearing because she was medicated and suffering from infections after surgery. She further stated that she had not understood that the respondent’s expert witness would testify that her surgery was necessitated by her scoliosis, and needed to provide corresponding rebuttal testimony. Claimant’s Motion to Allow Deposition of Dr. Kumar at ¶¶ 2, 4-5. The ALJ subsequently conducted a telephone conference and issued a procedural order allowing the deposition of Dr. Kumar to proceed. The ALJ also provided the respondent with the opportunity to advise opposing counsel and the ALJ whether it would call additional witnesses to respond to Dr. Kumar’s testimony. If the respondent did not call additional witnesses the matter would proceed to the filing of position statements. Order Following October 3, 2007 Telephone Conference at 1. The respondent notified the ALJ and the claimant that it would re-call its medical witness and later submitted for the ALJ’s consideration the deposition of Dr. Romagosa. The ALJ referred to Dr. Romagosa’s deposition testimony in her order. Order at 4, ¶ 15.
The respondent asserts that the claimant violated an administrative procedure by not listing Dr. Kumar on her Case Information Sheet. See
Office of Administrative Courts’ Rule of Procedure 20(C), 1 Code Colo. Reg. 104-3 at 9 (requiring parties to identify in their case information sheets the names of expert witnesses). In the event that a party fails to file a Case Information Sheet, the rule further provides that the ALJ may impose sanctions including striking an application for hearing, continuing the hearing, or proceeding to hearing. Rule of Procedure 20(D), 1 Code Colo. Reg. 104-3 at 9. The
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claimant’s Case Information Sheet does not identify Dr. Kumar as a witness; however, Dr. Kumar is identified as a witness in the claimant’s response to the application for hearing.
Nonetheless, the respondent asserts that the ALJ committed reversible error by allowing the claimant to depose Dr. Kumar when she failed to identify Dr. Kumar in her Case Information Sheet, contrary to Rule 20. In support of this contention the respondent notes that noncompliance with an essential statutory provision is reversible error. However, § 8-43-207(1)(j), C.R.S. 2007 authorizes ALJs to adjourn a hearing to a later date for the taking of additional evidence for good cause shown. More directly relevant to this matter is the ALJ’s wide discretion as to the conduct of evidentiary proceedings, including the decision of whether to permit the taking of post-hearing evidence. IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988).
Consequently, we may not interfere with the ALJ’s determination in the absence of a clear 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 determination “exceeds the bounds of reason, as where it is contrary to law or unsupported by the evidence.”Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001). In determining whether to permit the taking of post-hearing evidence, the ALJ may consider various factors including whether a party has exercised due diligence to obtain the evidence prior to the hearing, whether the evidence might be outcome determinative, and the potential inconvenience and expense to the opposing party if additional proceedings are permitted. See Aspen Skiing Co. v. Peer, 804 P.2d 166 (Colo. 1991) IPMC Transportation Co. v. Industrial Claim Appeals Office, supra; Potomac Insurance Co. v. Industrial Commission, 744 P.2d 765 (Colo.App. 1987). Of course, the ALJ’s decision must also consider the parties’ due process rights, including the right to present evidence and confront adverse evidence. See Delaney v. Industrial Claim Appeals Office, 30 P.3d 691 (Colo.App. 2000); Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990).
The ALJ is not held to a crystalline standard in articulating the basis for her order. Boice v. Industrial Claim Appeals Office, 800 P.2d 1339
(Colo.App. 1990). The ALJ implicitly found the claimant established good cause to adduce the post-deposition testimony of Dr. Kumar. Moreover, the ALJ allowed the respondent the opportunity to provide additional testimony from its witnesses and, in fact, the respondent submitted additional testimony from Dr. Romagosa. We conclude that the ALJ’s decision to permit the post-hearing deposition of Dr. Kumar does not exceed the bounds of reason and that she therefore did not abuse her considerable discretion in this matter.
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IT IS THEREFORE ORDERED that the ALJ’s order dated March 10, 2008, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_____ John D. Baird
_____ Curt Kriksciun
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JUDY SCHULTE, ORCHARD, CO, (Claimant).
MORGAN COUNTY, Attn: MICHELLE PAPE, MORGAN, CO, (Employer).
THE LAW OFFICES OF REGINA M WALSH ADAMS, Attn: REGINA WALSH ADAMS, ESQ., GREELEY, CO, (For Claimant).
DWORKIN, CHAMBERS, WILLIAMS, YORK, BENSON EVANS, Attn: DAVID J DWORKIN, ESQ., DENVER, CO, (For Respondents).
CTSI, Attn: LESLIE CAVANAUGH, DENVER, CO, (Other Party).
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