W.C. No. 4-487-752.Industrial Claim Appeals Office.
October 20, 2003.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which determined the claimant failed to prove a compensable injury, and therefore denied and dismissed the claim for workers’ compensation benefits. We affirm.
The claimant alleged she was injured on August 28, 2000, when she “scurried” away from a lunch table on the employer’s premises to avoid being stung by a bee. The claimant alleged the strain of the event aggravated a pre-existing, asymptomatic degenerative disc disease, and caused the onset of shooting pain in her back an hour later. On November 1, 2000, the employer referred the claimant to CCOM where the claimant was examined by a registered nurse, Jay Balestrieri. At the subsequent hearing, Balestrieri opined it was medically improbable the claimant suffered a compensable injury from the bee incident.
Crediting the opinions of Dr. O’Brien, Dr. Sparr, and Balestrieri, the ALJ found the claimant failed to prove a causal connection between the bee incident and her back problems. Therefore, the ALJ denied and dismissed the claim.
I.
On review, the claimant contends the ALJ erroneously refused to sequester Balestrieri. Therefore, the claimant requests the matter be remanded for a new hearing. We perceive no basis to grant a new hearing.
The Colorado Rules of Evidence apply to workers’ compensation proceedings. Section 8-43-210, C.R.S. 2002. C.R.E. 615 provides that “[A]t the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses.” The purpose of a sequestration order is to “prevent a witness from conforming his [or her] testimony to that of other witnesses and to discourage fabrication and collusion.” People v. Scarlett, 985 P.2d 36 (Colo.App. 1998). However, an error in denying a sequestration request is not reversible error unless the claimant proves the error was sufficiently prejudicial to constitute an abuse of discretion. See Williamson v. School District No. 2, 695 P.2d 1173 (Colo.App. 1984); Martin v. Porak, 638 P.2d 853 (Colo.App. 1981). Furthermore, it is not error to permit an “advisory” witness to remain in the courtroom. People v. Gomez, 632 P.2d 586 (Colo. 1981).
Here, the claimant does not allege any specific prejudice from the ALJ’s failure to grant her request for the sequestration of all witnesses, and such prejudice is not apparent from the record. We conclude there was no abuse of discretion by the ALJ that would warrant setting aside the ALJ’s order.
Balestrieri and Dr. Sparr were the respondents’ only witnesses. The respondents designated Balestrieri as their “advisory” witness, and the ALJ allowed Dr. Sparr to remain in the courtroom because Dr. Sparr was going to be offered as a medical expert. Balestrieri testified before Dr. Sparr. Thus, Balestrieri was not in a position to conform his testimony to that of Dr. Sparr, and the claimant does not complain Balestrieri attempted to conform his testimony to the claimant’s testimony. Under these circumstances, the claimant has failed to establish reversible error in the ALJ’s refusal to grant her request for sequestration.
II.
The claimant also contends Balestrieri failed to express his opinions within a reasonable degree of medical probability as required where the witness is offered as a medical expert. See Ringsby Truck Lines, Inc. v. Industrial Commission, 30 Colo. App. 224, 491 P.2d 106 (1971). Therefore, the claimant argues the ALJ erroneously failed to sustain her motion to strike Balestrieri’s testimony. Again, we disagree.
At the hearing, Balestrieri testified that it was not probable the claimant’s back condition was the result of a compensable aggravation on August 28. The claimant moved to strike Balestrieri’s testimony on grounds Balestrieri failed to render his opinion within a reasonable degree of medical probability. (See Tr. p. 69). The ALJ withheld ruling on the motion. (See Tr. p. 71).
We note that Balestrieri was not offered as a medical expert under C.R.E. 702. (See Tr. pp. 46, 52). In any case, the ALJ implicitly granted the claimant’s motion to strike before issuing the written order. The ALJ’s written order makes no reference to Balestrieri’s testimony. Rather, the ALJ only cites Balestrieri’s written reports dated November 1 and December 6, 2000. Consequently, the claimant’s argument is moot.
III.
Finally, we reject the claimant’s contention that the ALJ misapplied the law to the facts of this claim. We do not dispute that a compensable injury may be the result of a pre-existing condition which is aggravated by an industrial accident. See H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). Nevertheless, the determination of whether a claimant’s condition is due to the natural progression of the pre-existing condition or an industrial accident is a question of fact to be resolved by the ALJ. Industrial Commission v. Riley, 165 Colo. 586, 441 P.2d 3 (1968); Owens v. Industrial Claim Appeals Office, 49 P.3d 1187
(Colo.App. 2002); F.R. Orr Construction v. Rinta, 717 P.2d 965
(Colo.App. 1985). We are bound by the ALJ’s factual determinations if they are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002; Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999).
The claimant’s arguments notwithstanding, there is substantial evidence in the record, including the testimony of Dr. Sparr and the medical reports of Dr. O’Brien, to support the ALJ’s finding that the causal connection between the August 28 incident and the claimant’s back condition is speculative. Therefore, we must uphold the ALJ’s determination that the claimant failed to sustain her burden to prove a compensable injury. It is immaterial that the record contains some evidence which, if credited, might support a contrary determination. See F.R. Orr Construction v. Rinta, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 26, 2003, 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 October 20, 2003 to the following parties:
Cynthia Whalen, 5 Trent Ct., Pueblo, CO 81005
McDonnell Douglas Corporation, c/o Ron Martinez, Boeing, 1 McDonnell Douglas St., Pueblo, CO 81001
Insurance Company of the State of Pennsylvania, c/o Rusty Pinckney, AIG Claim Services, P.O. Box 32130, Phoenix, AZ 85064
Stephen M. Johnston, Esq., 125 W. “B” St., Pueblo, CO 81003 (For Claimant)
James B. Buck, Esq., 1777 S. Harrison St., #1110, Denver, CO 80210 (For Respondents)
BY: A. Hurtado