W.C. No. 3-115-384Industrial Claim Appeals Office.
January 29, 1999
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Martinez (ALJ), which denied his claim for permanent total disability benefits and temporary total disability benefits. The claimant contends that the ALJ improperly considered the testimony of the respondents’ vocational expert, and that the denial of permanent total disability benefits is not supported by substantial evidence. The claimant also contends he is entitled to temporary total disability benefits for the period of time between the date of his last employment and the date he commenced vocational rehabilitation. We affirm.
This case has a complex procedural history. A review of that history is necessary to understand the issues on appeal.
The claimant sustained a compensable back injury in September 1994. The treating physician, Dr. Walker, placed the claimant at maximum medical improvement (MMI) on January 24, 1995, with a five percent medical impairment rating. Dr. Walker released the claimant to return to work but limited him to working no more than four hours per day, five days per week. The claimant returned to modified employment, but he was terminated for lack of work in July 1995. Subsequently, the claimant applied for a hearing on permanent total disability benefits.
Prior to the hearing the respondents offered vocational rehabilitation, and the offer was accepted by the claimant. The respondents began to pay temporary total disability benefits commencing February 3, 1997, the date vocational rehabilitation commenced. However, vocational rehabilitation and temporary disability benefits were terminated by the respondents due to the claimant’s alleged noncompliance with the program. On October 15, 1997, the matter proceeded to hearing on a claim for permanent total disability benefits, temporary total disability benefits from the date of MMI through February 3, 1997, and medical benefits for treatment of depression.
On December 4, 1997, the ALJ entered an order finding that the respondents improperly terminated vocational rehabilitation and ordering them to pay temporary total disability benefits “commencing the date in February 1997 that vocational rehabilitation was offered to the claimant and continuing until terminated in accordance with the Colorado Worker’s Compensation Act.” However, the ALJ denied the claim for temporary total disability benefits “for any date prior to February 1997,” and stated that the request for permanent total disability benefits was premature in light of the ruling reinstating vocational rehabilitation. The ALJ also awarded benefits for treatment of depression.
Following the October 1997 hearing, the respondents terminated further efforts at vocational rehabilitation. The claimant again applied for a hearing on permanent total disability benefits, and a hearing was held on June 17, 1998. The ALJ entered the order under review on July 27, 1998.
The ALJ concluded that the claimant failed to prove his entitlement to permanent total disability benefits under §8-40-201(16.5)(a), C.R.S. 1998. In support, the ALJ credited the testimony of the respondents’ vocational expert, Robert Ore, who opined that the claimant is capable of obtaining employment as a housekeeper despite the restrictions imposed by Dr. Walker. The ALJ also noted that the January 1996 functional capacities evaluation showed the claimant was capable of performing light duty eight hours per day, five days per week. The ALJ discredited the claimant’s testimony that he is unable to work.
I.
On review, the claimant contends the ALJ erred in considering the testimony of the respondents’ vocational expert. The claimant argues that the testimony should have been excluded because the respondents failed to provide copies of the expert’s reports 20 days prior to the hearing as required by Rule of Procedure (VIII) (I) (1), 7 Code Colo. Reg., 1101-3 at 26. The claimant further contends that the expert’s testimony was irrelevant because it was based on an incorrect understanding of the claimant’s physical limitations as determined in the December 1997 order, and because the expert did not consider the claimant’s depression. We disagree with these arguments.
Rule of Procedure (VIII) (I) (1) provides that “vocational reports, . . . shall be provided to the opposing party or counsel if represented at least 20 days prior to the formal hearing, absent a showing of good cause.” We have previously held that this rule governs the admission of medical and vocational reports without the need for formal identification, as provided in §8-43-210, C.R.S. 1998. Leasure v. Jet Supply Co.,
W.C. No. 4-145-182 (August 8, 1994). Moreover, we have held that the rule establishes no requirement that an expert submit a report prior to testifying at a hearing. Consequently, the rule provides no basis for excluding the testimony of a vocational expert simply because the expert did not submit a report prior to the hearing. Simmonds v. Action RV, Inc., W.C. No. 4-142-922 (April 16, 1996).
It follows that the ALJ did not err in admitting the testimony of the respondents’ vocational expert. The ALJ correctly held that the respondents’ failure to submit the expert’s reports within 20 days of the hearing justified exclusion of the reports. However, the ALJ also correctly held that the failure to submit the reports did not prohibit the testimony of the expert.
The claimant next contends the ALJ erred in admitting the expert’s testimony because it was based on the incorrect assumption that the claimant could perform light duty for eight hours per day. The claimant points out that in the December 1997 order the ALJ found that Dr. Walker restricted the claimant to working four hours per day, five days per week. There was no error.
In Weld County School District RE-12 v. Bymer, 955 P.2d 550
(Colo. 1998), the court held that it is proper to consider, when adjudicating a claim for permanent total disability, whether the claimant retains access to employment which he can reasonably perform in light of his permanent restrictions. In view of this legal standard, it is proper for the ALJ to consider expert vocational testimony concerning the degree to which the claimant’s physical injury impairs his access to the labor market. See Chambers v. CFI Steel Corp., 757 P.2d 1171 (Colo.App. 1988).
Further, the ALJ has wide discretion in determining the admissibility of expert testimony. Consequently, we will not interfere with his decision to consider expert testimony unless an abuse of discretion is shown. One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 501 (Colo.App. 1995).
Here, the testimony of the respondents’ vocational expert was relevant to determining whether the claimant is capable of earning any wages considering his physical impairment. The expert testified that the claimant is able to earn wages under the restrictions imposed by Dr. Walker, as well as those established by the functional capacities evaluation. Thus, the ALJ did not abuse his discretion in considering the disputed testimony.
The claimant also asserts that because the December 1997 order contains a finding of fact mentioning the restrictions imposed by Dr. Walker, the ALJ was prohibited from considering the functional capacities evaluation in the 1998 order. We reject this argument.
The doctrine of collateral estoppel precludes relitigation of any issue decided in a prior proceeding if the issue in the later proceeding is identical to an issue actually litigated and necessarily adjudicated in the prior proceeding; the party against whom estoppel is asserted has been a party to or was in privity with a party to the prior proceeding; there was a final judgment on the merits in the prior proceeding; and the party against whom estoppel is asserted has had a full and fair opportunity to litigate the issue in the prior proceeding. M M Management Co. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA0370, December 10, 1998).
Here, the issue of the claimant’s permanent restrictions was not fully and finally adjudicated in the December 4, 1997 order, nor was there a final judgment on the issue. To the contrary, in the 1997 order the ALJ explicitly declined to reach the issue of permanent total disability and confined his ruling to the issues of temporary disability benefits, reinstatement of vocational rehabilitation, and medical benefits. The issue of permanent total disability was reserved for future determination, and therefore, the ALJ did not reach any final decision concerning the extent of the claimant’s permanent restrictions. Thus, the ALJ remained free to consider all evidence about the claimant’s restrictions in the July 27, 1998 order, and he was not bound by the findings in the 1997 order.
In any event, the ALJ determined that the claimant is capable of employment under the restrictions imposed by Dr. Walker. This finding is supported by the testimony of the respondents’ vocational expert, who testified that a tight labor market renders employers willing to accommodate persons with part-time restrictions. (Tr. June 17, 1998, p. 49). Thus, the ALJ’s 1998 reference to the eight hour restriction found in the functional capacities evaluation is, at most, harmless error.
Further, the ALJ did not err in considering the vocational expert’s testimony concerning the claimant’s depression. The expert testified that depression rarely affects employability unless it is severe, and that he found no evidence of severe depression in this case. The weight to be accorded this testimony was a matter for the ALJ. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
II.
The claimant next contends that the ALJ’s denial of permanent total disability benefits is not supported by substantial evidence in the record. We disagree.
The question of whether the claimant proved that he is unable to earn any wages is one of fact for determination by the ALJ Weld County School District RE-12 v. Bymer, supra. Because the issue is factual in nature we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. Thus, we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194
(Colo.App. 1995).
The claimant’s assertion that the testimony of the respondents’ expert is not based on any evidence in the record is without merit. The expert considered the restrictions imposed by Dr. Walker as well as the results of the functional capacities evaluation. In either case, the expert opined the claimant was capable of employment. Further, as we have already held, the ALJ’s findings in the order of December 4, 1997, did not preclude him from taking additional evidence in 1998. We have also rejected the assertion that the expert did not consider the claimant’s depression.
Insofar as the claimant argues that the testimony of the respondents’ expert is inconsistent with the testimony of Mr. Van Iderstein at the prior hearing, we find no error. It was the ALJ’s province to resolve the inconsistencies between the experts, and we may not substitute our judgment for his concerning the credibility of the witnesses. Rockwell International v. Turnbull, supra. Here, the ALJ plausibly reconciled the testimony of Ore and Van Iderstein.
III.
The claimant’s final argument is that the ALJ erred in failing to award temporary total disability benefits from July 1, 1995 through February 3, 1997. Relying on Larimer County v. Sinclair, 939 P.2d 515 (Colo.App. 1997), the claimant argues that he is entitled to temporary disability benefits from the date he was last employed until the date vocational rehabilitation commenced. We find no error.
Section 8-43-301(1), C.R.S. 1998, provides that an ALJ’s order is final unless a petition to review is filed. When a party fails to exhaust the statutory avenues of administrative review, the ALJ’s order becomes nonreviewable absent a petition to reopen State Compensation Insurance Fund v. Luna, 156 Colo. 106, 397 P.2d 231 (1964); Koch Industries, Inc. v. Pena, 910 P.2d 77
(Colo.App. 1995).
Here, the claimant did not petition to review the ALJ’s order of December 4, 1997. That order explicitly denied the claim for temporary total disability benefits for the period including July 1995 through February 1997. Consequently, the ALJ had no authority to reconsider the issue of temporary disability at the time of the 1998 hearing, and properly refused to consider the matter absent a petition to reopen.
IT IS THEREFORE ORDERED that the ALJ’ order dated July 27, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
NOTICE This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C. R. S. 1998.
Copies of this decision were mailed January 29, 1999
to the following parties:
Jose Vasquez, 135 Soccerfield Road, #H5, Glenwood Springs, CO 81601
Harold Leonard, Hal Construction, 26 + South 3rd Street, Carbondale, CO 81623-2004
Hawkeye Security Insurance Company, Lana J. Hessenius, 5950 South Willow Drive, Suite 306, P.O. Box 5150, Denver, CO 80217-5150
James R. True, Esq., 215 South Monarch, Suite 102, Aspen, CO 81611 (For Claimant)
Catalina Cruz, Esq., P.O. Box 2661, Aspen, CO 81612 (For Claimant)
Stacy J. Tarler, Esq., Michael J. Decker, Esq., 3464 South Willow Street, Denver, CO 80231 (For Respondents)
By: ___________