Opinion
W.C. No. 4-310-909
January 3, 2002
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Gartland (ALJ) which awarded medical benefits and determined the claimant is entitled to ongoing medical benefits after maximum medical improvement (MMI). The respondents argue the ALJ abused her discretion and denied them due process of law by refusing to permit post-hearing medical depositions or continuing the hearing for additional testimony. We set the order aside and remand for further proceedings.
The claimant sustained a compensable back injury on July 7, 1996. The claimant was diagnosed with a lumbosacral strain and treated conservatively with medication and physical therapy. In May 1997, the claimant's treating physician, Dr. Bloink, placed the claimant at MMI, and she received a 16 percent whole person medical impairment rating. The respondents filed a final admission of liability in August 1997.
Subsequently, the claimant experienced ongoing low back and lower extremity pain. In May 1999, the respondents filed a general admission of liability because Dr. Bloink opined the claimant was no longer at MMI. Dr. Bloink diagnosed the claimant as suffering from chronic pain and depression, and referred the claimant for psychiatric counseling. Thereafter, the claimant received psychological treatment from Dr. Brown and Dr. Lehman. On January 31, 2001, Dr. Lehman opined the claimant was at MMI for her psychological condition, but prescribed ongoing medications.
The claimant also received continuing treatment for her back condition, and Dr. Bloink referred the claimant to Dr. Wilcox for treatment and a surgical evaluation. On February 29, 2000, Dr. Wilcox recommended against surgery and placed the claimant at MMI for her physical condition. Nevertheless, the claimant continued to undergo treatment, and on February 14, 2001, Dr. Bloink referred the claimant to Dr. Silva. In March 2001, Dr. Silva performed an epidural injection, and he has recommended two additional injections.
The respondents disputed liability for much of the psychological treatment provided by Dr. Brown and Dr. Lehman, as well as the continuing medical treatment provided and recommended by Dr. Silva and Dr. Bloink. Consequently, in February 2001 the claimant applied for a hearing to establish her entitlement to this medical treatment, as well as ongoing medical treatment after MMI. (Tr. p. 9; Claimant's Application for Hearing). The hearing was set for April 11, 2001. The respondents disputed the reasonableness and necessity of the treatment, and whether or not the need for treatment is causally related to the industrial injury. (Response to Application for Hearing).
At the April 11 hearing the claimant testified and offered into evidence numerous medical reports from various medical providers including Dr. Bloink, Dr. Silva, and Dr. Lehman. At the commencement of the hearing respondents' counsel noted he subpoenaed these three physicians, but they were not present in the courtroom. At the conclusion of the hearing respondents' counsel requested an opportunity to depose the three physicians. However, the ALJ rejected this request stating that "Rule VIII (I) (2) allows the submission of an evidentiary deposition at any time prior to three days before the formal hearing or prior to the close of the formal hearing when approved by" an ALJ for good cause shown. However, the ALJ stated there is no provision in the rules "for the allowance of post-hearing evidentiary depositions."
Upon being denied the right to take depositions, respondents' counsel requested a continuance to allow the doctors to appear and testify. In support of this request respondents' counsel stated that attempts to obtain "evidentiary depositions were unsuccessful," the subpoenas were "lawfully issued and served," and the respondents were entitled to "get [the physicians'] testimony." Claimant's counsel objected arguing the subpoenas were issued only six or seven days prior to the hearing, and the respondents "could have issued those subpoenas at an earlier time and arranged with the physicians to attend the hearing." The ALJ then denied the request for a continuance stating that she felt "just cause has not been shown for a continuance of the hearing at this point." (Tr. pp. 59-61).
On April 8, 2001, the ALJ entered an order finding the medical care provided by Dr. Bloink and Dr. Silva prior to the hearing was reasonable and necessary. The ALJ also determined that the psychological treatment provided by Dr. Lehman and Dr. Brown prior to January 23, 2001, was reasonable and necessary, as was the medication prescribed by Dr. Lehman after January 23. Consequently, the ALJ ordered the respondents to pay for this treatment. The ALJ also determined there is substantial evidence in the record to support a finding the claimant will need future medical treatment to "maintain MMI." Consequently, the ALJ awarded ongoing medical benefits in accordance with Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).
On review, the respondents argue, inter alia, that the ALJ abused her discretion and denied them due process of law by refusing to permit post-hearing depositions of the three physicians, and by denying the request for a continuance. The respondents reason the ALJ relied heavily on the medical reports of Dr. Bloink, Dr. Silva, and Dr. Lehman in finding the disputed medical treatment was reasonable and necessary and that it was causally related to the industrial injury. We agree the ALJ abused her discretion and remand for further proceedings.
Section 8-43-207(1)(j), C.R.S. 2001, permits an ALJ to "adjourn any hearing to a later date for the taking of additional evidence" when "good cause" is shown. Further, § 8-43-301(5), C.R.S. 2001, permits an ALJ to "set the matter for further hearing" upon consideration of a petition to review. Of course, the ALJ is given wide discretion in the conduct of evidentiary proceedings, including the decision of whether to grant a continuance or otherwise permit the taking of post-hearing evidence. 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 determination is beyond the bounds of reason, as where it is contrary to law or unsupported by the evidence. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001). In determining whether to grant a continuance or permit the taking of post-hearing evidence, an ALJ may consider various factors including whether a party has exercised due diligence to obtain the evidence prior to the hearing, whether the evidence might be outcome determinative, and the potential inconvenience and expense to the opposing party if additional proceedings are permitted. See Aspen Skiing Co. v. Peer, 804 P.2d 166 (Colo. 1991); IPMC Transportation Co. v. Industrial Claim Appeals Office, supra; Potomac Insurance Co. v. Industrial Commission, 744 P.2d 765 (Colo.App. 1987). Of course, the ALJ's decision must also consider the parties's due process rights, including the right to present evidence and confront adverse evidence. See Delaney v. Industrial Claim Appeals Office, 30 P.3d 691 (Colo.App. 2000); Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). In this regard, we note that cross-examination is a fundamental right which cannot be denied. Puncec v. City and County of Denver, 28 Colo. 542, 475 P.2d 359 (1970).
Here, we conclude the ALJ abused her discretion in denying the respondents' request for post-hearing depositions or, alternatively, for a continuance to present additional evidence. First, we see no basis for concluding the respondents failed to exercise due diligence in an attempt to procure the attendance of the three physicians at the hearing. Section 8-43-207(1)(a), C.R.S. 2001, provides that subpoenas "shall be served in the same manner as subpoenas in the district court." CRCP 45(c) provides that "unless otherwise ordered by the court for good cause shown, such subpoena shall be served no later than forty-eight hours before the time set out in said subpoena." Here, the record establishes that the subpoenas were served more than forty-eight hours prior to the hearing, and there is no evidence of any order requiring earlier service. Nor is there a finding that the subpoenas were not valid or enforceable. Further, respondents' counsel represented that he attempted to take pre-hearing depositions from the physicians but was not successful. Under these circumstances, there is no basis for concluding the respondents failed to exercise due diligence in an attempt to procure the physicians' testimony at the hearing. The mere possibility that the respondents could have acted sooner does not establish lack of due diligence, particularly in light of the relatively short time between the application for hearing and the date of the hearing.
The claimant argues there is no basis for concluding that deposition testimony by the three physicians would be "outcome determinative." Of course, the force of this argument is reduced by the fact that the respondents are seeking to exercise their right to cross-examine the physicians. Consequently, it is difficult to predict what testimony these physicians might give, or the effectiveness of the cross-examination in undermining the physicians' credibility.
However, we note the record contains some evidence suggesting that cross-examination might elicit testimony favorable to the respondents' theories of the case. First, on May 4, 1999, Dr. Bloink wrote that he would "not state an opinion as to whether or not [the claimant's] fears and anxieties are well-founded or linked to her previous Workman's Compensation injury." Dr. Bloink also noted that his referral of the claimant for psychological counseling was made at the request of the claimant and her attorney. On May 14, 2001, Dr. Bloink wrote that the claimant needed a prescription for Zoloft, but noted "because the prescription somehow falls under the guise of workers comp the insurance company will not pay for it unless I authorize and prescribe it." (Emphasis added). During cross-examination of the claimant, respondents' counsel obtained information concerning several personal and health problems involving the claimant. Respondents's counsel might reasonably wish to confront Dr. Bloink and Dr. Lehman concerning the significance of these problems in causing the claimant's depression and need for treatment. Finally, the claimant herself suggested the initial injection performed by Dr. Silva did not improve her condition. (Tr. p. 21). Consequently, respondents' counsel might reasonably desire to cross-examine Dr. Silva concerning why additional injections constitute reasonable and necessary treatment.
Although permitting additional proceedings may cause some inconvenience and additional expense to the claimant, we conclude that these factors are insufficient to outweigh the respondents' right to cross-examine adverse witnesses whose reports were found persuasive by the ALJ. Consequently, we hold the ALJ abused her discretion in refusing to permit post-hearing depositions or granting a continuance to take additional evidence at the hearing. Cf. Montoya v. Career Service Board, 708 P.2d 478 (Colo.App. 1985). In this regard, we note the ALJ's conclusions regarding Rule VIII appear to be incorrect. Rule VIII (2) (b), 7 Code Colo. Reg. 1101-3, permits the filing of an evidentiary deposition prior to the "close of the formal hearing when approved by an administrative law judge for good cause shown." As we have noted, the statute expressly grants the ALJ discretion to continue the "formal hearing" to a later date. Consequently, the rule provides no impediment to taking evidentiary depositions after the initial hearing when it is determined there is good cause to continue the hearing.
Under these circumstances, the ALJ's order must be set aside and the matter remanded with instructions to afford the respondents an opportunity to conduct cross-examination of the three physicians who were subpoenaed but failed to appear for the hearing. The ALJ may, in the exercise of her discretion, determine whether cross-examination shall be conducted by way of depositions or an additional hearing. Either form of relief was requested by the respondents. In light of these conclusions, we need not reach the respondents' other arguments.
IT IS THEREFORE ORDERED that the ALJ's order dated May 8, 2001, is set aside, and the matter is remanded for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Bill Whitacre
Copies of this decision were mailed January 3, 2002 to the following parties:
Donna Peterson, 102 E. 3rd St., Cortez, CO 81321
Wal-Mart Stores, Inc., 1835 E. Main St., Cortez, CO 81321-3037
Insurance Company of the State of Pennsylvania, 70 Pine St., New York, N Y 10270
Insurance Company of the State of Pennsylvania, Claims Management, Inc., P. O. Box 1288, Bentonville, AR 72712-1288
Gail C. Harriss, Esq., 572 E. 3rd Ave., Durango, CO 81301 (For Claimant)
James R. Clifton, Esq., and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy