Opinion
W.C. No. 4-371-320
August 13, 1999.
ORDER OF REMAND
The claimant seeks review of orders of Administrative Law Judge Felter (ALJ) which denied his claim for benefits, denied a request for an additional hearing to present "newly discovered evidence," and denied a petition to reopen. We remand the matter to the ALJ for a determination of whether the claimant should receive an additional hearing to admit evidence.
The substantive issue in this case is whether or not the claimant's right knee injury arose out of his employment on February 23, 1998, or was the result of preexisting weakness stemming from prior injuries. The claimant testified that he injured his knee on February 23 while carrying a trash bag at work.
The claimant was initially examined by Dr. Waller on March 4, 1998. In a report dated April 9, 1998, Dr. Waller stated the claimant reported a "new injury" and there was no indication of "any cause-and-effect relationship to [the claimant's] previous injury in 1994." Dr. Waller diagnosed anterior cruciate ligament and medial meniscus tears, but ordered an MRI to make a final diagnosis. The claimant underwent the MRI on May 13, 1998.
On May 27, 1998, six days before the hearing scheduled for June 2, 1998, the parties deposed Dr. Waller. Dr. Waller testified that he did not know whether the claimant had undergone the recommended MRI. Moreover, Dr. Waller stated that he was unable to render an opinion to a reasonable degree of medical probability whether the claimant's knee symptoms were attributable to his prior injuries or the alleged injury of February 1998 without reviewing the results of the MRI. Dr. Waller stated that if the MRI revealed an ACL or medial meniscus tear, the claimants symptoms are attributable to a new injury. (Waller Depo. pp. 24-27).
The matter proceeded to hearing on June 2. During the course of the hearing the claimant testified that he underwent the MRI. Counsel for the claimant advised the ALJ the claimant had attempted to obtain the MRI results but was unsuccessful. (Tr. p. 30). At no time did the claimant request a continuance for purposes of obtaining the MRI results and submitting them to Dr. Waller for an opinion.
On June 9, 1998, the ALJ entered specific findings of fact and conclusions of law denying the claim for benefits because the claimant failed to prove an injury arising out of employment. The ALJ relied heavily on Dr. Waller's testimony that he was unable to render an opinion concerning causation without reviewing the MRI. The claimant filed a timely petition to review alleging, inter alia, that there was "new evidence" on the issue of causation.
On July 8, 1998, the claimant filed a "Motion for Further Hearing" and a "Petition to Reopen Claim." These documents alleged that on June 11, 1998, counsel for the respondents forwarded a copy of the MRI report to claimant's counsel, and claimant's counsel then forwarded the report to Dr. Waller. On June 23, 1998, Dr. Waller issued a report stating that, based on review of the MRI, "his personal feeling" was the claimant had reinjured the ACL ligament on February 23, 1998.
On August 26, 1998, the ALJ entered an order denying the claimant's request for further hearing and the petition to reopen. In support the ALJ found there "are no allegations" that the MRI report could not have been discovered by the exercise of due diligence prior to Dr. Waller's deposition or the June 2 hearing. Further, the ALJ stated the claimant's "clear remedy for not having obtained this MRI report" was to request either a continuance or a resetting of the June 2 hearing. Finally, the ALJ stated that the MRI report was not "new evidence", but was simply evidence that "had not been obtained."
The claimant petitioned to review the August 26 order. However, on October 6, 1998, the ALJ dismissed the petition to review on grounds the order was not final and reviewable under § 8-43-301(2), C.R.S. 1998. The claimant requested the ALJ to reconsider the October 6 order, but the ALJ denied the request on October 27, 1998.
On review, the claimant contends the ALJ abused his discretion in denying the request for an additional hearing and the petition to reopen. The claimant argues the ALJ incorrectly found there were "no allegations" that the claimant exercised due diligence to obtain the MRI report prior to the hearing. The claimant points out that in paragraphs 3 and 7 of the petition to reopen he alleged due diligence in an attempt to obtain the MRI results for Dr. Waller after learning Dr. Waller's deposition testimony. The claimant also points out that in paragraph 4 of the request for further hearing he alleged that Dr. Waller's June 23 report was "unavailable to the parties of the time the hearing." The respondents argue the ALJ properly denied the motion for an additional hearing and the petition to reopen, and that the ALJ correctly determined the denial of these motions is not currently subject to review. We conclude that the ALJ's August 26 order is reviewable, and that the matter must be remanded to reconsider the denial of an additional hearing because the ALJ misstated the evidence. Section 8-43-301(8), C.R.S. 1998.
Initially, we hold the claimant's request for a hearing to present additional evidence is properly considered a request for relief under § 8-43-301(5), C.R.S. 1998, rather than a petition to reopen under § 8-43-303(1), C.R.S. 1998. Section 8-43-301(5) provides that when an ALJ rules on a petition to review he may "amend or alter the original order or set the matter for further hearing." Because the claimant's request for an additional hearing was filed prior to the time the ALJ ruled on the claimant's petition to review the June 9 order, the ALJ retained jurisdiction to grant an additional hearing without the necessity of a petition to reopen. Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780, 783 (Colo.App. 1991) (order awarding or denying benefits does not become subject to the petition to reopen provisions until it becomes final by the exhaustion of or the failure to exhaust review proceedings).
We also disagree with the respondents insofar as they argue the ALJ's August 26 denial of the request for an additional hearing is not final and subject to review. Under § 8-43-301(2) an interlocutory order becomes reviewable when appealed incident to or in conjunction with an otherwise final order. BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997). Here, the ALJ's June 9 order is final and reviewable because it denies the claim for benefits. The August 26 order denying the request for an additional hearing was entered incident to or in conjunction with the ALJ's review of the claimant's petition to review the June 9 order. Section 8-43-301(5). In fact, our courts have consistently reviewed an ALJ's actions when they are incident to a petition to review a final order. See Broadmoor Hotel v. Industrial Claim Appeals Office, 939 P.2d 460 (Colo.App. 1996) (reviewing ALJ's refusal to enter supplemental order); Raffaelo v. Industrial Commission, 670 P.2d 805 (Colo.App. 1983) (reviewing ALJ's refusal to grant an additional hearing after an initial hearing).
We next consider the ALJ's August 26 order denying the claimant's request for an additional hearing to present the results of the MRI and Dr. Waller's June 23 opinion. Under § 8-43-301(5) the ALJ had wide discretion to determine whether the matter should be set for further hearing to present additional evidence. See IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). An abuse of discretion is not shown unless the ALJ's order is beyond the bounds of reason, as where it is unsupported by the evidence and contrary to law. Rosenberg v. Board of Education of School District No. 1, 710 P.2d 1095 (Colo. 1985). The fact that the ALJ's power to order a new hearing was discretionary means that he had the power to choose between two courses of action and was not necessarily bound to select one over the other. Aspen Skiing Co. v. Peer, 804 P.2d 166, 172 (Colo. 1991).
In determining whether to grant an additional hearing the ALJ is entitled to weigh several factors. The ALJ may consider whether the "newly discovered evidence" could have been obtained by the exercise of due diligence prior to the hearing. Aspen Skiing Co. v. Peer, supra. The ALJ may also consider whether the evidence might be outcome determinative, and the cost and hardship to the opposing party if an additional hearing is granted. IPMC Transportation Co. v. Industrial Claim Appeals Office, supra; Raffaelo v. Industrial Commission, supra.
Here, the ALJ denied the request for an additional hearing in part because he found the claimant made "no allegations" that he exercised due diligence to obtain the MRI prior to the hearing on June 2. However, the petition to reopen specifically alleged the exercise of due diligence in an attempt to obtain the MRI report after Dr. Waller's May 27 deposition. Moreover, at the time of the hearing counsel for the claimant represented to the ALJ that his client attempted to obtain the MRI report but was unsuccessful. Thus, to the extent the ALJ denied the request for an additional hearing on grounds the claimant made "no allegations" of due diligence, the order is contrary to the record and constitutes an abuse of discretion.
In reaching this result we recognize the ALJ's statement that the "MRI report" was not newly discovered evidence, but merely known evidence which was not obtained prior to the hearing. However, the critical evidence in the case was Dr. Waller's opinion based on his examination of the MRI report. Dr. Waller's final opinion did not exist at the time of the hearing, and his ability to render a final opinion was dependent on the claimant's ability to obtain the MRI and submit it to the doctor prior to the hearing. Thus, the issue is the extent to which due diligence would have produced Dr. Waller's final opinion before the hearing.
In remanding this matter for redetermination of the claimant's request for an additional hearing we should not be understood as expressing any opinion concerning whether the claimant is entitled to an additional hearing. Because resolution of the issue is discretionary the ALJ might yet conclude that the totality of the circumstances does not justify an additional hearing. We merely conclude the ALJ erroneously found the claimant did not allege the exercise of due diligence, and that this error may have affected the ALJ's overall assessment of the relevant factors. On remand the ALJ may, in the exercise of his discretion, hold a hearing to resolve factual issues surrounding the claimant's allegation that he exercised due diligence to obtain the MRI report and submit it to Dr. Waller.
In light of this disposition we need not consider the other issues raised by the claimant.
IT IS THEREFORE ORDERED that the ALJ's orders dated June 9, 1998, August 26, 1998, October 6, 1998, and October 27, 1998, are set aside, and the matter is remanded for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Robert M. Socolofsky
Copies of this decision were mailed August 13, 1999 to the following parties:
Eugene Ayala, 10648 N. Huron, #1206, Northglenn, CO 80234
Northglenn Apartments, Attn: Jim Murphy, Urban Inc., 5000 S. Quebec St., #400, Denver, CO 80237-2701
Star Insurance Company, Gallagher Bassett Services, Inc., 7935 E. Prentice Ave., #305, Englewood, CO 80111
James L. LeClair, Esq., 155 S. Madison, #330, Denver, CO 80209 (For Claimant)
Bernard Woessner, Esq. and Mark E. Macy, Esq., 3900 E. Mexico, #1000, Denver, CO 80210 (For Respondents)
By: A. Pendroy