W.C. No. 4-467-097.Industrial Claim Appeals Office.
May 4, 2009.
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FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Jones (ALJ) dated October 10, 2008, that found the respondents liable for the claimant’s ulnar nerve transposition surgery. We affirm.
The claimant suffered an admitted work injury on April 25, 2000. The issue for hearing was whether an ulnar nerve transposition recommended by Dr. Machanic was reasonably necessary and related medical treatment. The ALJ determined that Dr. Machanic’s opinion was more credible and persuasive than the opinion rendered by Dr. Macaulay and found the respondents liable for the ulnar nerve transposition. The respondents bring this appeal.
I.
The respondents contend that the ALJ erred in finding them liable for the ulnar nerve transposition procedure recommended by Dr. Machanic because there is no theory of recovery which would support a finding by substantive proof of the compensability of the claimant’s need for treatment of his left ulnar nerve impingement. Therefore, the respondents request reversal of the ALJ’s decision.
We initially note that the respondents are obligated to provide medical benefits to cure or relieve the effects of the industrial injury. Section 8-42-101(1), C.R.S. 2008; Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). The claimant bears the burden of proof to establish the right to specific medical benefits HLJ Management Group, Inc. v. Kim, 804 P.2d 250 (Colo.App. 1990).
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Because the issue of whether the ulnar nerve transposition surgery was reasonably necessary to cure or relieve the effects of the industrial injury is factual in nature, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008. This standard of review requires us to view the evidence in the light most favorable to the prevailing party, and to defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). The court of appeals has noted that in this context the scope of our review is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo.App. 1995).
The respondents argue that sole credible evidentiary support of the ALJ’s order is Dr. Machanic’s testimony and that the opinions of Dr. Machanic are so incredible that they cannot be considered substantial evidence. We first note that we do not read the ALJ’s order as indicating that she relied solely on the opinion of Dr. Machanic. The ALJ also credited the testimony of the claimant. The claimant testified that he suffers from pain, numbness and tingling in his left upper extremity. Tr. at 39-40. The claimant testified that he did not have any problems with his left upper extremity prior to the work injury and he could not relate these problems to anything but the work injury. Tr. at 40.
We recognize that Dr. Macaulay opined that to postulate that the ulnar neuropathy was a result of the automobile accident was medically improbable. However, medical evidence is not dispositive of causation Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d 28 (1963); Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). Therefore, even if the only medical opinion offered in the case was that of Dr. Macaulay’s, that would not require us on appeal to determine that the ALJ’s finding to the contrary was wrong.
The claimant next argues that Dr. Machanic had admitted at the time of his deposition in 2006 that he did not believe that the claimant’s left elbow problems were related to the compensable motor vehicle accident. Certainly, this raises questions about the reliability of the opinion. However, we note that the weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). To the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). We are not persuaded by the respondents’ argument that the current opinions of Dr. Machanic are so incredible that they cannot be considered substantial evidence.
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The respondents next argue that the testimony of Dr. Machanic is inconsistent with the elements of proof for compensability necessary under the Workers’ Compensation Act. The respondents cite § 8-40-201(2) C.R.S. 2008, which provides that an injury includes disability resulting from an accident as defined in § 8-40-201(1) or an occupational disease as defined in § 8-40-201(14). The respondents argue that Dr. Machanic changed his opinion from the time of his first deposition when he stated that the claimant’s left elbow problems were not related to the compensable motor vehicle accident because there had been an “indirect” development of the claimant’s current elbow problems. The respondents assert that Dr. Machanic’s opinion was only that looking at the “whole context” of the claimant’s nerve deterioration his current elbow problems were the “indirect” result of the automobile accident. The respondents thus argue that the law does not support compensability of such an “indirect” causation.
It is true that different portions of Dr. Machanic’s written reports and testimony can be interpreted in different ways. However, as we read the ALJ’s order she found that Dr. Machanic opined that the proposed ulnar nerve transposition is medically necessary and that the work injury caused the problems with the ulnar nerve. The ALJ made, with record support, the following findings of fact regarding Dr. Machanic. Dr. Machanic is one of the claimant’s treating physicians. Tr. 39, 41. Dr. Machanic opined that the claimant had significant enough left ulnar neuropathy to need the ulnar nerve transposition. Machanic Depo. at 10. Dr. Machanic further opined that the need for surgical transposition was related to his job work injury. Machanic Depo. at 15. In a report cited directly by the ALJ, Dr. Machanic wrote the following:
It is reasonable to consider that his long-standing cubital tunnel syndrome, which has been documented now on two EMG’s is in fact associated with his on the job injury of April, 2000. One could wonder about some contribution of cumulative trauma, but one could wonder about direct effects from the on the job injury contributing to this. At this point in time, as of 11/07/07, this man has a significant enough left ulnar neuropathy to suggest consideration for surgical transposition. Again, all of this is related to his on the job work injury. Exhibit 6 at 1.
In our view, the ALJ’s determination of what Dr. Machanic’s opinions were is supported by substantial evidence in the record. Given the ALJ’s determination of what Dr. Machanic’s opinions are we do not perceive that the ALJ’s reliance on those opinions is inconsistent with the elements of proof necessary under the Workers’ Compensation Act. We perceive no reversible error in the ALJ’s determination of the respondents’ obligation to provide the proposed surgery as a necessary medical benefit to cure or relieve the effects of the admitted industrial injury.
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In our view, the testimony of the claimant and the opinions of Dr. Machanic constitute substantial evidence supporting the ALJ’s resolution of the respondents’ liability for the disputed medical care. Therefore, we perceive no reason to interfere with the ALJ’s determination.
II.
The respondents argue that the ALJ erred in refusing to receive into evidence a copy of a transcript of the testimony of Dr. Machanic’s testimony in a prior deposition. The respondents contend that in that deposition Dr. Machanic expressed a directly contrary opinion concerning the causation of the claimant’s left upper extremity problem by denying that it was a result of his industrial auto accident. We are not persuaded the ALJ committed reversible error by not allowing into evidence the transcript of the testimony of Dr. Machanic taken in an earlier deposition.
The ALJ has wide discretion to control the course of a hearing and make evidentiary rulings. Section 8-43-207(1)(c), C.R.S. 2008; IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803
(Colo.App. 1988). The appellate standard on review of an alleged abuse of discretion is whether the ALJ’s order exceeds the bounds of reason, as where it is contrary to the applicable law or unsupported by 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). In our view the ALJ’s exclusion of the transcript of the 2006 deposition did not constitute an abuse of discretion.
The transcript of a deposition taken of Dr. Machanic taken in 2008 was accepted into evidence. In his deposition of 2008, Dr. Machanic was questioned by the respondents regarding statements he had made at an earlier 2006 deposition. The transcript of the 2006 deposition was offered by the respondents, but not accepted into evidence by the ALJ.
It is provided in Colorado Rules of Evidence 613 that where the witness denies or does not remember making the prior statement, extrinsic evidence, such as a deposition, proving the utterance of the prior evidence is admissible. However, if a witness admits making the prior statement, additional extrinsic evidence that the prior statement was made is inadmissible. See also, Walker v. People, 175 Colo. 173, 489 P.2d 584 (Colo. 1971) (where an attempt is made to impeach a witness through a prior statement and the witness admits having made the contradictory statement in question, there is no necessity of proving it, and the statement itself is inadmissible).
The testimony of Dr. Machanic in 2008 may be read, as contended by the respondents, as denying the “substance of his earlier statement.” However, in our
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opinion, Dr. Machanic’s testimony cannot be read as denying that he in fact made the prior statements. To the contrary, the respondents have not alleged, nor does our review of the 2008 deposition reveal, that Dr. Machanic, when asked about a prior statement, specifically denied making any of the statements in his 2006 deposition. Therefore, in our view the ALJ made no error under CRE 613 in refusing to receive into evidence a copy of the transcript of the 2006 deposition.
The respondents also contend the ALJ erred in refusing to receive into evidence the transcript of the 2006 deposition because it was a “medical record” and therefore admissible as evidence under 8-43-210 C.R.S. 2008. We are not persuaded the ALJ committed reversible error.
The use of the transcript of the 2006 deposition was to examine Dr. Machanic regarding prior inconsistent statements for impeachment purposes. The respondents had an opportunity and used that opportunity to attempt to impeach the opinions of Dr. Machanic. In our view this issue was properly resolved by the ALJ under CRE 613.
Further, the respondents have not argued that there were any portions of the 2006 transcript that Dr. Machanic was not questioned about in his 2008 deposition that would have been otherwise persuasive on defense. Under these circumstances, any error regarding admission of the 2006 deposition transcript was harmless and will be disregarded. See § 8-43-310 C.R.S. 2008 ; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988).
IT IS THEREFORE ORDERED that the ALJ’s order dated October 10, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
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RICHARD SIMPSON, AURORA, CO, (Claimant).
BENCHMARK/ELITE INC, AURORA, CO, (Employer).
COLORADO INSURANCE GUARANTY ASSOCIATION, Attn: MICHAEL KRAMISH, C/O: WESTERN GUARANTY FUND SERVICES, DENVER, CO, (Insurer).
CHRIS FORSYTH LAW OFFICE LLC, Attn: CHRIS FORSYTH, ESQ., DENVER, CO, (For Claimant).
MCELROY, DEUTSCH, MULVANEY CARPENTER. LLP, Attn: THOMAS L. KANAN, ESQ., DENVER, CO, (For Respondents).
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