W.C. No. 4-481-275Industrial Claim Appeals Office.
May 7, 2003
FINAL ORDER
The claimant seeks review of orders of Administrative Law Judge Harr (ALJ) dated May 28, 2002, and October 3, 2002, which denied and dismissed the claim for workers’ compensation benefits. We affirm the order dated October 3 and dismiss the remainder of the appeal as moot.
The claimant alleged he suffered an industrial injury in November 2000 from the inhalation of dust and airborne particles. The respondents filed a Notice of Contest but referred the claimant to Dr. Noel for treatment. Dr. Noel placed the claimant at maximum medical improvement (MMI) on November 27, 2000, with no permanent impairment.
The claimant filed an Application for Hearing on the issues of compensability, medical benefits, MMI, and temporary disability benefits. The claimant also applied for a Division-sponsored independent medical examination (DIME) to be paid by the respondents because the claimant alleged he was indigent.
Under § 8-42-107.2(2)(a)(I)(A), C.R.S. 2002, the claimant’s time to request a DIME commences when the respondents file a final admission of liability that includes an impairment rating. The respondents’ time for selection of a DIME commences with the date the disputed finding of MMI or medical impairment is mailed or physically delivered to the insurer. Section 8-42-107.2(2)(a)(I)(B), C.R.S. 2002.
Because the respondents had not yet filed any admission of liability in the claim, the ALJ determined the claimant’s request for a DIME was premature. Further, the ALJ determined a DIME physician’s evaluation was not entitled to any special weight on the question of whether the claimant suffered a compensable injury. Therefore, in the order dated May 28, 2002, the ALJ denied the claimant’s request for a DIME. The claimant appealed that order, but we dismissed the appeal without prejudice on November 1, 2002.
A hearing on the issue of compensability began April 17, 2002. Without objection the respondents submitted 2 pages of compressed air gas (CGV) studies from the Exempla Pulmonary Laboratory dated January 7, 2002. (See Respondent’s Exhibit List-C). The hearing was continued to July 26, 2002. At the conclusion of the hearing the ALJ allowed the presentation of additional evidence by deposition. The respondents deposed their medical expert, Dr. Repsher, who opined the claimant’s respiratory problems were not the result of any work-related inhalation. In so doing, Dr. Repsher relied on 10 extra pages of CGV studies which were not submitted as part of Respondents’ Exhibit C. The claimant offered the additional pages as Deposition Exhibit 10 without objection.
However, based upon his contention that Deposition Exhibit 10 and the testimony of Dr. Repsher based on that exhibit constituted “surprise testimony,” the claimant later moved to strike Deposition Exhibit 10 and Dr. Repsher’s testimony. See Motion to Strike Surprise Testimony dated August 26, 2002. In the alternative, the claimant requested a continuance to present a medical expert to rebut Dr. Repsher’s opinions. On September 10, 2002, the ALJ granted the claimant’s motion to strike the disputed evidence.
On conflicting medical evidence the ALJ subsequently determined the claimant failed to sustain his burden to prove he suffered occupational asthma or an acute lung disease arising out of and in the course of his employment. In support, the ALJ relied on the remaining testimony of Dr. Repsher. Therefore, the ALJ’s order dated October 3, 2002, denied and dismissed the claim for workers’ compensation benefits.
I.
On appeal the claimant contends Deposition Exhibit 10 and Dr. Repsher’s testimony based on that exhibit was a surprise because the respondents failed to comply with permitted discovery. The claimant also contends that in light of the surprise, the ALJ erroneously failed to grant a continuance. We perceive no reversible error.
Initially we note there is an order dated July 11, 2002, in which a pre-hearing ALJ determined the respondents produced all discovery that was compelled by an prior order dated February 19, 2002. There can be no legitimate dispute that the July 11 order was interlocutory and not immediately subject to review. See Provo v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA1239, September 12, 2002). Accordingly, the July 11 order was only reviewable when incident to a final order that granted or denied a benefit or penalty. See BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533
(Colo.App. 1997).
The Rules of Procedure VIII(I)(4), 7 Code Colo. Reg. 1101-3 at 30 (2002), provides that “copies of interlocutory orders previously issued in the case that a party intends to raise on appeal shall be filed and identified at the formal hearing.” The claimant did not file the July 11 order at the July 26 hearing. Nor did the claimant make any assertion he sought to raise the issue on appeal. Therefore, we conclude the claimant waived the argument that the respondents failed to comply with permitted discovery.
Next, evidentiary determinations are within the ALJ’s discretion Denver Symphony Association v. Industrial Commission, 34 Colo. App. 343, 526 P.2d 685 (1974). Consequently, we may not interfere with the ALJ’s ruling in the absence of an abuse of discretion. Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986). The standard for an abuse of discretion is whether the ruling is beyond the bounds of reason, as where it is unsupported by the law or the evidence. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
The claimant’s Motion to Strike requested the ALJ either strike Deposition Exhibit 10 and any testimony by Dr. Repsher based on that exhibit or grant the claimant a continuance. The ALJ’s September 10 order excluded Deposition Exhibit 10 and Dr. Repsher’s testimony which was based on that exhibit. However, the ALJ declined to strike Dr. Repsher’s testimony which was based on the CGV studies admitted as Respondents’ Exhibit C.
Because the claimant’s Motion to Strike requested alternative relief, the claimant’s contention that the ALJ should have granted a continuance does not establish an abuse of discretion. Further, the ALJ is entitled to a presumption of integrity and honesty. See Ski Depot Rentals, Inc. v. Lynch, 714 P.2d 516 (Colo.App. 1985). Consequently, the claimant’s bald allegation the ALJ relied on Deposition Exhibit 10 and Dr. Repsher’s testimony concerning that exhibit after explicitly ruling that such evidence would not be considered is insufficient to afford grounds to interfere with the ALJ’s October 3, 2002 order.
II.
Because we uphold the ALJ’s determination that the claimant failed to prove a compensable injury, the claimant’s contention that the ALJ erroneously denied his request for a DIME is moot. This is true because a DIME conducted under the provisions of § 8-42-107(8), C.R.S. 2002, applies only to the issues of MMI and permanent medical impairment for a compensable injury.
Here, the ALJ determined there was no compensable injury. The ALJ’s determination inherently precluded the claimant from receiving temporary disability, medical, and permanent impairment benefits regardless of a DIME physician opinion. Therefore, even if we found the ALJ erroneously foreclosed the claimant from challenging the MMI findings of Dr. Noel prior to adjudicating the issue of compensability, the error is harmless.
Moreover, we lack jurisdiction to resolve the claimant’s constitutional challenges to the statute. See Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539 (Colo.App. 1995). Under these circumstances, we do not consider the claimant’s contention that §8-42-107.2(2)(a)(I) is unconstitutional as applied because it gives the respondents a superior right to request a DIME and precludes the claimant from requesting a DIME unless the respondents do not request a DIME.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 3, 2002, is affirmed.
IT IS FURTHER ORDERED that the claimant’s petition to review the ALJ’s order dated May 28, 2002, is dismissed as moot.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
NOTICE
An action to modify or vacate the Order may be commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202, and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 2001.
Copies of this decision were mailed May 7, 2003 to the following parties:
William Wills, 4734 Raleigh St., Denver, CO 80212-2563
Kathy Daniel, Colorado Sash Door, Inc., 525 W. 66th St., Loveland, CO 80538-4670
Legal Department, Pinnacol Assurance — Interagency Mail
Chris L. Ingold, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For Claimant)
Ronda K. Comings, Esq., 2629 Redwing Rd., #330, Ft. Collins, CO 80526-6316 (For Respondents)
BY: A. Hurtado