Opinion
W.C. No. 4-604-629.
January 28, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which determined the claimant failed to prove a compensable injury and, therefore, denied and dismissed the claim for workers' compensation benefits. The claimant contends the ALJ abused his discretion in allowing the respondents to submit additional evidence after the hearing. We disagree and, therefore, affirm.
The claimant alleged an injury to her right upper torso on Monday, February 2, 2004, while moving two-20 pound prime ribs out of a walk-in freezer. The respondents denied liability. At the hearing on May 24, 2004, the respondents presented evidence that the claimant could not have moved two prime ribs on February 2 because the employer typically only bought 3 prime ribs each Thursday or Friday, which were prepared for Friday night customers. (Tr. p. 54). The only exception is the last Friday of the month in which the employer buys 4 prime ribs because business is greater. However, on rebuttal the claimant testified that with the employer's permission she bought 6 full prime ribs on the Friday before the alleged injury. Therefore, she alleged there were at least 2 prime ribs inside the freezer the following Monday.
After the close of evidence, the respondents moved for an order allowing them to present newly discovered evidence consisting of a grocery store receipt dated Thursday, January 29, 2004, and the affidavit of Chris Shelleman (Shelleman). Shelleman's affidavit explained that according to the receipt the employer purchased only 4 prime ribs the week preceding the alleged injury. The respondents argued this evidence could not have been presented at the hearing because the claimant's claim of having bought 6 prime ribs "represented a change from prior expected testimony," and therefore, the receipt "was not the kind that would have been discovered through due diligence." ( See Contested Motion to Admit Newly Discovered Evidence). Further, the respondents argued that the January 29 receipt was outcome determinative that the claimant could not have been injured as alleged.
Implicitly agreeing with the respondents' arguments, the ALJ granted the motion to submit the grocery receipt and affidavit. Relying on the January 29 receipt the ALJ then found that only 4 prime ribs were purchased on January 29, and thus, the claimant's testimony that she purchased 6 prime ribs was not credible. (Finding of Fact 15). Further, the ALJ determined that at least 3 of the prime ribs were served on Friday, January 30. Consequently, the ALJ rejected the claimant's contention that there were 2 prime ribs to be moved the following Monday.
On conflicting evidence the ALJ also found the claimant's testimony that she reported the injury to a co-worker on February 2 was uncorroborated and relied on evidence the claimant did not initially report a work-related injury to the treating physicians. Consequently, the ALJ determined the claimant failed to prove by a preponderance of evidence that she suffered an injury on February 2, 2004, which arose out of the employment.
On review the claimant points out that parties are expected to be prepared to present their evidence at the scheduled hearing. The claimant also contends the respondents were fully aware that the quantity of prime ribs on hand as of February 2 was a pertinent issue because they presented a grocery receipt dated February 4, 2004, at hearing to establish that only 3 prime ribs were purchased during the week after the industrial injury. The respondents also elicited testimony from Shelleman concerning the quantity of ribs routinely purchased. Therefore, the claimant argues the respondents failed to prove the receipt was newly discovered evidence which could not have been discovered with due diligence. We disagree.
Section 8-43-207(1)(j), C.R.S. 2004 allows an ALJ upon a showing of good cause to reopen a hearing and receive additional evidence. The ALJ is given substantial discretion in the conduct of evidentiary proceedings, and we may not interfere with his refusal to reopen the proceedings unless an abuse is shown. Dee Enterprises v. Industrial Claim Appeals Office, 88 P.3d 430 (Colo.App. 2003); IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). An abuse is not shown unless the ALJ's decision is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001).
In determining whether to reopen proceedings to receive additional evidence, the ALJ may consider several factors. First, the ALJ should consider whether the evidence has the potential to be outcome determinative. See Delaney v. Industrial Claim Appeals Office, 30 P.3d 691 (Colo.App. 2000). Further, the ALJ may consider whether the alleged "newly discovered evidence" could have been obtained and presented at the hearing through the exercise of due diligence. Aspen Skiing Co. v. Peer, 804 P.2d 166 (Colo. 1991); Kennedy v. Bailey, 169 Col. 43, 453 P.2d 808 (1969). Finally, the ALJ should consider the expense and inconvenience incurred by the opposing party if proceedings are reopened to receive additional evidence. IPMC Transportation Co. v. Industrial Claim Appeals Office, supra. However, the ALJ may balance this factor against competing interests, including the injustice which would result from giving final effect to an erroneous or fraudulently procured result. See Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996) (reopening authority is evidence of legislative policy that goal of achieving fair and just result overrides litigants' interests in finality); Gurule v. Board of Developmentally Disabled, W.C. No. 3-595-093 (February 9, 1995); Harris v. Fire House Car Wash, Inc., W.C. No. 3-848-539 (June 18, 1992).
Admittedly, the record supports the claimant's contention the respondents were aware the number of prime ribs on hand as of Monday, February 2 was a pertinent issue because they submitted a receipt for prime ribs purchased on February 5, 2004 (Respondents' Exhibit DD). Nevertheless, we cannot say the record compels a finding the respondents could have discovered the claimant's contention that she bought 6 prime ribs during the week prior to the alleged injury.
On direct testimony, the claimant stated she was injured while moving 2 frozen prime ribs weighing 20 pounds each. (Tr. p. 9). She also stated the employer routinely buys 3 or 4 prime ribs each Thursday or Friday which she cooks for the Friday special. (Tr. p. 22). During her case in chief, the claimant did not allege a larger purchase on January 29. Rather, the allegation was not made until Shelleman testified that 3 prime ribs were purchased on February 5 and stated that it would not have been necessary to buy 3 more ribs on February 5 if there were 2 remaining in the freezer as of February 2. (Tr. pp. 55, 72). Under these circumstances, the ALJ could reasonably infer that from the respondents' perspective the claimant fabricated the alleged purchase of 6 prime ribs at the hearing to refute the respondents' evidence that there could not have been 2 ribs in the freezer at the time of the alleged injury. If true, the evidence would not have been discoverable by due diligence.
Indeed, the transcript contains evidence the respondents engaged in permitted discovery in the form of written interrogatories. ( See Tr. pp. 23, 24). Further, the respondents did not attempt to impeach the claimant's testimony by reference to her interrogatory answers concerning the employer's purchasing practices. Accordingly, the record contains some evidence the claimant's testimony on direct was consistent with the testimony the respondents expected to hear concerning the frequently and quantity of ribs purchased immediately preceding the alleged injury.
Furthermore, the ALJ reasonably inferred the January 29 receipt was outcome determinative as to whether it was likely the respondent-employer had 2 prime ribs weighing 20 pounds each on February 2. Accordingly, we agree with the claimant that the proffered evidence was prejudicial to the claimant. However, on balance we cannot say the ALJ's decision to grant the respondents' post-hearing motion to submit the January 29 receipt exceeds the bounds of reason. Therefore, we conclude the ALJ did not abuse his discretion.
Lastly, we reject the claimant's bald contention the ALJ's findings of fact are not supported by substantial evidence in the record. The ALJ's findings are supported by substantial, albeit conflicting evidence and, therefore, are binding on review. See Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993). The findings also support the conclusion the claimant failed to prove she was injured in the course of her employment. Consequently, we may not disturb the ALJ's order denying benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated August 6, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ Kathy E. Dean
____________________ Robert M. Socolofsky
Deborah White, Grand Junction, CO, Ernie Duarte, Management Volunteer, Beye-Lotz VFW Post, Grand Junction, CO, Legal Department, Pinnacol Assurance — Interagency Mail Luke A. Brennan, Esq., Grand Junction, CO, (For Claimant).
Eliot Wiener, Esq. and T. Paul Krueger, II, Esq., Denver, CO, (For Respondents).