W.C. No. 4-412-975Industrial Claim Appeals Office.
December 4, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which denied the claim for medical benefits. The claimant argues the ALJ abused her discretion by ignoring a stipulation concerning the effect of medical testimony and improperly considered an affirmative defense which was not raised. The claimant also argues the ALJ’s findings concerning the cause of the need for medical treatment are not supported by the evidence. We affirm.
The issue in this case is whether the claimant’s need for back surgery, which was recommended in November 2000, is causally related to the industrial back injury in January 1999. The ALJ, relying principally on the opinions of Dr. Steinmetz, found that after the industrial injury, the claimant engaged “in activities which exceeded his restrictions, and that it is likely that the strenuous activities caused his current condition.” Consequently, the ALJ concluded the claimant “failed to prove by a preponderance of the evidence that his current need for the back surgery” was caused by the 1999 industrial injury, rather than the strenuous activities in which he is engaged after the injury. Although the ALJ recognized there was conflicting evidence, particularly the opinions expressed by Dr. Hughes, the ALJ was not persuaded by this evidence.
I.
On review, the claimant first contends the ALJ abused her discretion by ignoring the parties’ “stipulation” that the opinion of Dr. Hughes was to be dispositive concerning the cause of the claimant’s need for surgery. In support of this contention, the claimant relies on a letter which respondents’ counsel wrote to Dr. Hughes prior to his independent medical examination (IME). In the letter, respondents’ counsel stated the following:
Thank you for conducting an IME on Frank Velarde on such short notice. Both parties are requesting this IME and are splitting the cost of the IME to try and ensure that we both get an honest and unbiased opinion regarding questions relating to the causation of Mr. Velarde’s back condition.
Initially, we conclude that the claimant failed to raise the issue of the alleged “stipulation” before the ALJ and may not now do so on appeal. We have reviewed the claimant’s position statement submitted to the ALJ. Although the claimant’s position statement asserts that “Dr. Hughes’ opinions are entitled to a high degree of credibility,” nowhere did the claimant argue that respondents’ counsel’s letter amounted to a stipulation to treat Dr. Hughes’ opinions as binding on the issue of causation. Consequently, that argument may not be raised for the first time on appeal. See Kuziel v. Pet Fair, Inc., 948 P.2d 103 (Colo.App. 1997).
In any event, we disagree with the claimant’s assertion that the letter constitutes a binding stipulation. A stipulation is a form of judicial admission, and a party may stipulate away valuable rights provided the stipulation is not in violation of public policy. Further, a representation, not disputed, concerning an understanding between counsel for the parties ought to be regarded as of equal force to a written stipulation. See Durbin v. Bonanza Corp., 716 P.2d 1124 (Colo.App. 1986).
Here, the claimant’s assertion notwithstanding, the letter authored by respondents’ counsel does not contain any “admission” or agreement by the respondents that Dr. Hughes’ opinion would be treated as binding concerning the issue of causation. Although the letter expresses the parties’ desire to obtain an unbiased opinion, counsel certainly did not signify his understanding that the opinions of Dr. Hughes would be considered unassailable. To the contrary, respondents’ counsel denies there was any stipulation. Further, the letter which claimant’s counsel sent to Dr. Hughes does not contain any indication that his opinions would be considered binding by the parties.
II.
The claimant next contends the ALJ abused her discretion in considering the “affirmative defense” that the claimant’s need for surgery was caused by his post-injury activities rather than the industrial injury. We perceive no error.
The claimant had the burden of proof, in the first instance, to prove that the need for medical treatment was caused by the industrial injury. Section 8-41-301(1) (c), C.R.S. 2001; § 8-43-201, C.R.S. 2001; Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844
(Colo.App. 2000). Because the claimant had the burden of proof, the sufficiency of the evidence to establish causation was necessarily an issue presented to the ALJ. Inherent in this issue was the question of whether factors other than the industrial injury could have been the cause of the claimant’s need for surgery. Hence, the respondents did not waive the issue of causation by failing to raise it as an affirmative defense. See Joslins Dry Goods v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001).
In any event, the issue of causation was listed in the claimant’s application for hearing as well as the respondents’ response to the application. Insofar as the claimant was uncertain concerning the precise factual basis of the respondents’ position, he was free to conduct discovery.
Finally, even if the issue of causation was not properly raised prior to the hearing, the issue was certainly tried by consent. The vast majority of the medical evidence was directed to the question of whether or not the claimant’s need for surgery was caused by the industrial injury or his intervening activities. Indeed, the letter which claimant’s counsel wrote to Dr. Hughes demonstrates that counsel was fully aware of the conflict in the medical evidence, and counsel specifically recognized that Dr. Steinmetz was of the opinion that the claimant’s “behavior since the time of the original injury has resulted in the necessity for surgery intervention.” Consequently, claimant’s counsel specifically requested Dr. Hughes to evaluate whether there was “any indication in the videotape that [the claimant] injured his back while undertaking the activity shown in the tape.” Further, claimant’s counsel addressed questions to this issue during the deposition of Dr. Hughes. Cf. Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987).
III.
The claimant next contends the ALJ incorrectly placed the burden of proof upon him because the respondents filed an admission of liability, and “once the claim is admitted, the respondents must prove an affirmative defense by the preponderance of evidence standard.” (Claimant’s Brief at 6). However, as we have pointed out, the claimant had the burden of proof to establish his right to medical benefits. The fact that the respondents filed an admission of liability for medical benefits did not amount to an admission that any subsequent medical treatment requested by the claimant was causally related to the industrial injury. To the contrary, the respondents remained free to dispute the cause of the need for particular medical treatment, and the respondents’ election to do so did not shift the burden of proof away from the claimant. See Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997).
IV.
The claimant’s final argument is that the ALJ misapplied the law by disregarding the opinion of Dr. Hughes that the claimant’s need for surgery was the result of a “weakened condition” stemming from the industrial injury. According to the claimant, Dr. Steinmetz did not refute this opinion.
However, the issue of causation was one of fact for determination by the ALJ. Wal- Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999). Consequently, we must uphold the ALJ’s determination of the issue if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record. Wal-Mart Stores, Inc., v. Industrial Commission, supra. Further, the ALJ is not obliged to discuss every piece of evidence which she determines is not dispositive. Rather, such evidence is considered to have been implicitly discredited. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000).
Admittedly, the testimony of Dr. Hughes would permit the inference that the claimant’s need for surgery was the natural and proximate result of the 1999 industrial injury. However, the ALJ chose to credit the opinion of Dr. Steinmetz that the need for surgery was caused by the claimant’s intervening activity. In making this credibility determination, the ALJ necessarily discredited Dr. Hughes’ contrary opinion, and we may not substitute our judgment for that of the ALJ concerning the weight to be accorded the expert medical opinions. Consequently, we perceive no error of law in the ALJ’s decision to credit the opinion of Dr. Steinmetz.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 19, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Dona Halsey
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. 2001. 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 December 4, 2001 to the following parties:
Frank Velarde, 1505 E. Main St., Trinidad, CO 81082
Sunland Construction, Inc., P. O. Box 1087, Eunice, LA 70535-1087
National Union Fire Insurance Company, Tina Gustafson, AIG Claim Services, Inc., P. O. Box 32130, Phoenix, AZ 85064-2130
Douglas R. Phillips, Esq., 155 S. Madison St., #330, Denver, CO 80209 (For Claimant)
Derek Regensburger, Esq., and Craig Henderson, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy