Opinion
W.C. No. 4-265-354
November 25, 1997
FINAL ORDER
The claimant has appealed an order issued by Administrative Law Judge Gandy (ALJ) which denied and dismissed his claims for permanent total and permanent partial disability benefits, as well as medical benefits. We affirm.
The respondent admitted liability for tenosynovitis, a wrist condition sustained by the claimant in February 1995. The claimant was treated by Drs. Bender and Wunder, and continued to work on restricted duty in accordance with their recommendations. Dr. Bender determined that the claimant attained maximum medical improvement on April 25, 1995, and that he had 0% permanent impairment. Based on this opinion, the respondent filed a final admission for 0% permanent disability.
Contending that his shoulders were also affected, the claimant contested the final admission and a hearing was held. However, the ALJ was unpersuaded that the shoulder condition was related to the claimant's employment. The ALJ also found that the claimant is able to earn wages, and that the claimant's tenosynovitis does not affect the claimant's ability to earn wages. Therefore, the ALJ concluded that the claimant is not entitled to permanent total disability benefits. See § 8-40-201(16.5)(a), C.R.S. 1997 (defining "permanent total disability" as the inability to earn any wages in the same or other employment). The ALJ also concluded that as a result of this resolution, "the other hearing issues need not be addressed."
On appeal, the claimant asserts that the ALJ erred in excluding evidence about the claimant's pre-employment physical examination, which was offered to show that he did not have shoulder problems prior to his employment with the respondent. We perceive no reversible error.
Contrary to the respondent's position, we conclude that such evidence is relevant because it could support an inference that the claimant's shoulder condition is work-related. The fact that the ALJ found that the claimant is not permanently totally disabled does not render this evidence irrelevant, because permanent partial disability was also raised as an issue, and such benefits are not necessarily dependent upon the claimant's ability to earn wages.
Nevertheless, the ALJ received the claimant's testimony that he did not have shoulder problems prior to his employment with the respondent (Transcript 16), and the ALJ did not discredit that assertion. Rather, the ALJ was simply persuaded by the medical opinions of Drs. Bender and Conyers, as well as the initial opinion of Dr. Branum, that the claimant's shoulder condition was unrelated to his employment. Under these circumstances, any error in excluding additional evidence of claimant's pre-employment condition appears harmless. See § 8-43-310, C.R.S. 1997 (error disregarded unless prejudicial).
The claimant also contends that the ALJ erred in failing to consider the deposition of Dr. Bender. We disagree.
During closing arguments, the respondent's attorney referred to the deposition which had been taken "Monday," apparently, two days prior to the hearing. The ALJ stated: "I don't have [the deposition] and I'm not considering it." Transcript 76.
Workers' Compensation Rule of Procedure VIII(I)(2), 7 Code Colo. Reg. 1101-3, provides that depositions may be filed at any time more than three days before the formal hearing, or prior to the close of the hearing when approved by the administrative law judge for good cause shown. Here, the deposition had not been filed prior to the hearing, or during the evidentiary phase of the hearing. Moreover, we cannot say that the record compels a determination that there was good cause for permitting the deposition to be filed thereafter. Although the deposition may not have been taken in time to be filed "prior to three days before the hearing," there was no objection by either party to the ALJ's ruling, or any statement which would establish why the deposition should be accepted. See Anders v. Industrial Commission, 649 P.2d 732 (Colo.App. 1982). Nor was there any offer of proof which would show that exclusion of the deposition was prejudicial to the claimant. See C.R.E. 103(a)(2).
Contrary to the claimant's remaining contention, we perceive no error in the dismissal of his related claims for medical and permanent partial disability benefits. Insofar as these claims pertain to the shoulder condition, the ALJ's determination that this condition is unrelated to the claimant's employment justifies the dismissal. See § 8-41-301(1)(c), C.R.S. 1997 (injury must arise out of and in the course of employment). To the extent that the claimant is contesting Dr. Bender's determination of maximum medical improvement, and "0" permanent impairment rating concerning the wrist condition, the record does not indicate that the claimant followed the applicable statutory procedures for contesting those determinations. See Colo. Sess. Laws 1991, ch. 219, § 8-42-107(8)(b) at 1309; Colo. Sess. Laws 1993, ch. 106, § 8-42-107(8)(c) at 365. Consequently, Dr. Bender's determinations are binding, and the ALJ did not err in dismissing the remaining claims.
IT IS THEREFORE ORDERED that the ALJ's order issued December 12, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Dona Halsey
___________________________________ Bill WhitacreNOTICE
This Order is final unless an action to modify or vacate the Order is 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 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. 1997.
Copies of this decision were mailed November 25, 1997, to the following parties:
Vicente Vega-Chavez, 1717 5th St., #144, Greeley, CO 80631
Dana Winter-Wilson, Monfort, Inc., P.O. Box G, Greeley, CO 80631
Monfort of Colorado, Inc., 1 Conagra Dr., Omaha, NE 68102-5094
Rebecca Koppes Conway, Esq., 912 Eighth Ave., Greeley, CO 80631 (For the Claimant)
Kim D. Starr, Esq., 2629 Redwing Rd., Ft. Collins, CO 80526 (For the Respondent)
By: __________________________