Opinion
W.C. No. 4-658-419.
March 3, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) dated August 6, 2007, that denied her petition to reopen her claim. We affirm.
The ALJ's findings are summarized as follows. The claimant sustained a work-related injury to her left shoulder that she promptly reported on April 5, 2004. The claimant underwent surgery for a right rotator cuff repair on August 10, 2004. The claimant subsequently was off work, but returned to her position "full duty" on October 28, 2004. She was fired on January 5, 2005. On August 23, 2005, the respondents filed a final admission of liability regarding the claimant's injury reported in April 2004, to which the claimant did not object.
The claimant petitioned to reopen her claim on the basis of an alleged worsening of her left arm. However, a physician opined persuasively that a tear of the claimant's left rotator cuff was not related to her April 2004 injury. The ALJ was not persuaded that the claimant's condition as a result of her April 2004 had worsened and denied the petition to reopen the claim.
The claimant first argues that the ALJ erred by admitting Dr. Nelson's report into evidence. The record reflects that the respondents' counsel wrote to Dr. Nelson on or about June 15, 2007, memorializing what he believed to be Dr. Nelson's opinions concerning the claimant's medical condition. The attorney asked Dr. Nelson to confirm that the averments were accurate and, also, asked her to indicate whether the claimant "suffered a worsening of condition of her left shoulder strain as a natural progression of the admitted April 5, 2004 injury," to which Dr. Nelson responded in the negative. Exhibit 2 at 3 (unpaginated). Dr. Nelson signaled her approval of the factual averments by signing the letter and indicating June 18, 2007 as the corresponding date of her informal attestation. The ALJ credited what she described as Dr. Nelson's letter or report in finding that the claimant's condition had not worsened as a result of her industrial injury.
In support of her argument, the claimant refers to the statutory requirement that parties exchange medical records and expert witness reports at least 20 days prior to the hearing. Section 8-43-210, C.R.S. 2007. We are not persuaded that the ALJ erred in accepting the report under the circumstances.
Section 8-43-210 is the most recent version of a longstanding provision governing the admission of various documents, including medical records and reports, without foundation. See Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524, 526-27 (Colo.App. 1996) (reviewing legislative history of provision). In 2007 the General Assembly added the following provision to § 8-43-210 regarding the exchange of such documents: "All relevant medical records, vocational reports, expert witness reports, and employer records shall be exchanged with all other parties at least twenty days prior to the hearing date." Colo. Sess. Laws 2007, ch. 341 at 1473-74 (emphasis added). This amendment was included with several revisions to the Workers' Compensation Act, §§ 8-40-101 to 8-47-209, C.R.S. 2007, which also added a new provision to the part of the Act addressing the scheduling of hearings. Subsection (3) was added to § 8-43-209, and includes the following language: Once the hearing is commenced, the administrative law judge may, for good cause shown, continue the hearing to a date certain to take additional testimony, to file an additional medical report, to file the transcript of a deposition, or to file a position statement. . . ." Colo. Sess. Laws 2007, ch. 341 at 1473 (emphasis added).
In this case, the claimant's counsel indicated his objection to the introduction of the letter regarding Dr. Nelson's opinions. Tr. at 9. The respondents' counsel acknowledged that the disputed document was signed by Dr. Nelson the day before the hearing and suggested that the case be either continued or that there be a post-hearing deposition of Dr. Nelson. Tr. at 11-13. The ALJ made available to the claimant the opportunity to take a deposition in order to respond to the document in question. Tr. at 15. However, the claimant's counsel indicated having concerns about his client's medical condition, elected to proceed to hearing instead of continuing the matter, and advised the ALJ that he was not seeking an opportunity to take a deposition. Tr. at 14-15.
We conclude that the ALJ did not err in accepting Dr. Nelson's report into evidence. The ALJ made available to the claimant the opportunity to take a deposition "in order to respond to Dr. Nelson's report." Tr. at 15. See Esser v. Industrial Claim Appeals Office, 8 P.3d 1218, 1222 (Colo.App. 2000) (recognizing entitlement of opposing party to cross-examine author of admitted report), affd on other grounds sub nom. Colorado Dep't of Labor and Employment, 30 P.3d 189 (Colo. 2001). It further appears that there was an opportunity to continue the matter, as well.
The ALJ exercises "wide discretion" in conducting evidentiary proceedings. See § 8-43-207(1), C.R.S. 2007 (detailing ALJ's authority to conduct evidentiary hearings); see also, IPMC Transp. V. Industrial Claim Appeals Office, 753 P.2d 803, 804 (Colo.App. 1988) (construing predecessor statute to § 8-43-207 to provide hearing officer with wide discretion in conduct of evidentiary proceedings). We defer to the ALJ's evidentiary determinations unless her ruling constitutes an abuse of her discretion by "exceeding the bounds of reason." See, e.g., Rosenberg v. Board of Educ, 710 P.2d 1095, 1098-99 (Colo. 1985) (upholding administrative hearing officer's refusal to allow depositions based on abuse of discretion standard). The ALJ's determination to accept Dr. Nelson's report was a proper exercise of her discretion under the facts of this case.
The claimant next contends that the ALJ erred by rejecting the opinion of a treating nurse, but finding persuasive the opinions of Dr. Nelson reflected in a document prepared by the respondents' counsel. The ALJ's findings concerning the question of whether the claimant sustained a worsening of her condition due to her industrial injury must be upheld if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2007. We may not substitute our judgment for that of the ALJ concerning the credibility of witnesses and we may not reweigh the evidence or overturn the ALJ's corresponding findings based on conflicting evidence. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155, 1157 (Colo.App. 1993). Nurse Barnes issued a letter dated December 5, 2006, in which she indicated that an MRI of the claimant showed a "full thickness tear of the supraspinatus and infraspinatus tendon with severe osteoarthrosis and chondromalasia of glenohumeral and aeromioclavicular joints," and opined that the claimant's condition was "most likely is the result of her fall at work in 2004." Exhibit 8 at 2 (unpaginated). However, Dr. Nelson opined, and the ALJ found, that the claimant did not have symptoms consistent with a tear of her left rotator cuff on January 18, 2005, when Dr. Nelson examined the claimant. Dr. Nelson further indicated that there was no objective evidence that the claimant suffered a worsening of her left shoulder condition due to her work-related injury. Exhibit 2 at 2-3 (unpaginated); Findings of Fact, Conclusions of Law, and Order (Order) at 4, ¶ 23. The existence of evidence which, if credited, might permit a contrary result also affords no basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). We conclude that the ALJ did not err by crediting the opinions of Dr. Nelson as to the claimant's condition.
Finally, the claimant asserts that the ALJ's order makes it apparent that the ALJ placed a higher burden upon her to reopen her claim than what is required. In order to reopen a claim pursuant to § 8-43-303(1), C.R.S. 2007, the claimant must prove a worsening of her condition that is causally related to the industrial injury. Moreover, the worsened condition must warrant further benefits. Cordova v. Industrial Claim Appeals Office, supra; Richards v. Industrial Claim Appeals Office, 996 P.2d 756 (Colo.App. 2000). The claimant argues that the ALJ effectively required the claimant to establish that her admittedly worsened condition was not the result of an intervening injury. The claimant further asserts that the respondents, rather than the claimant, bore the burden to show that her worsening resulted from an intervening injury. See, e.g., Bencomo v. Chernoff W.C. No. 4-663-598 (July 13, 2007) (recognizing existence of "intervening event" to be affirmative defense by employer).
The claimant argues that a fair reading of the ALJ's order shows that the ALJ determined, contrary to the parties' respective positions, that the claimant did not suffer a worsening of her condition. It is true that the respondents' counsel advised the ALJ that the respondents' position was that the claimant's worsened condition was not attributable to her work-related injury. Rather, he suggested that the evidence indicated the claimant's condition, including a torn rotator cuff, occurred after the claimant stopped working for the respondent employer. Tr. at 13-14. It is also accurate that the Conclusions of Law portion of the ALJ's order states that "[s]ince it is found that the claimant's condition has not worsened, it is concluded that the Petition to Reopen is denied." Order at 6, ¶ 6. However, the ALJ is not held to a "crystalline standard in articulating [her] findings of fact," and her order is sufficient for review if we can discern the underlying reasons for her decision. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385, 388 (Colo.App. 2000), (citing Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992)). Our review of the ALJ's decision persuades us that the ALJ effectively determined that the claimant did not establish that her worsened condition was related to her industrial injury.
The ALJ's decision also states that "the claimant's condition as a result of the April 5, 2004, work injury did not worsen and therefore should not be reopened." Order at 6, ¶ 5. Furthermore, in her Findings of Fact, the ALJ states the following: "It is found and concluded that the claimant's left shoulder condition arising from the April 5, 2004, work injury did not worsen justifying the reopening of her claim. It is found and concluded that the claimant's current left shoulder condition is not related to the April 2004 work injury. . . ." Order at 5, ¶ 24. It is apparent that the ALJ was not persuaded by the claimant's evidence that the claimant's shoulder condition constituted a worsening related to her industrial injury. See Owens v. Industrial Claim Appeals Office, 49 P.3d 1187 (Colo.App. 2002) (issue of whether claimant's condition related to industrial injury or to intervening injury presents question of fact). We are not persuaded to disturb the ALJ's decision. IT IS THEREFORE ORDERED that the ALJ's order issued August 6, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
ARMANDA ARAGON, 6505 W 44TH AVE, WHEAT RIDGE, CO, 80033 (Claimant) ISLE OF CAPRI CASINO, Attn: JAMES BERARDINO, BLACK HAWK, CO, (Employer).
CAMERON W TYLER ASSOCIATES, PC, Attn: CAMERON W TYLER, ESQ., BASELINE RD, SECOND FLOOR, BOULDER, CO, (For Claimant).
CAIRNS NEMECHEK MAGRUDER LLC, Attn: GREGORY B CAIRNS, ESQ., DENVER, CO, (For Respondents) CAMBRIDGE INTEGRATED SYSTEMS, INC., Attn: TERI ESS-JACOBS, PHOENIX, AZ, (Other Party) ARMANDA ARAGON, KNOX CT, DENVER, CO, (Other Party 2).