Opinion
W.C. No. 4-685-107.
June 22, 2007.
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Cain (ALJ) dated March 11, 2007, that ordered the respondents to pay temporary total disability benefits and medical benefits. We affirm.
Hearings were held on September 14, 2006, December 11, 2006, and February 2, 2007, on the issues of whether the claimant sustained an occupational disease of her right wrist, and whether she was entitled to temporary total disability benefits, medical benefits, and disfigurement benefits. Following the hearings the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. Between 1990 and December 12, 2005, the claimant was employed as a flight attendant. Her job duties required her to push and pull food and beverage carts, and to lift, push or pull objects using forces up to 55 pounds. In November 2005 she began to experience pain in her right wrist, as well as a "clicking" sound. She sought treatment from her personal physician, Dr. Staller, who noted that she gave a history that included a previous fracture of the wrist. He referred her to Dr. Ocel for an orthopedic consultation. The history the claimant gave to Dr. Ocel also included a fracture of the wrist that occurred approximately five years earlier when the claimant was rollerblading. The claimant underwent an MRI scan of the wrist, which revealed a tear of the triangular fibrocartilage complex (TFCC), a scapholunate injury, and possible a lunotriquetral tear. Dr. Schneider examined the claimant on November 30, 2005, and performed surgery on December 12, 2005. She later developed an infection of the wrist and underwent further treatment for that condition, as well as surgery to remove hardware that had been installed. In February 2006 she was hospitalized with wrist pain and Dr. Vengurlekar diagnosed her as suffering from complex regional pain syndrome (CRPS). She underwent an independent medical examination, performed by Dr. Healey, who opined that her various conditions were the result of her work as a flight attendant. Dr. Hughes performed a review of the claimant's medical records at the request of the respondent and stated that the claimant's previous wrist fracture caused her then-present symptoms. Dr. Ocel testified that he did not believe that the claimant's employment caused her wrist problems, but that her job duties may have contributed to an exacerbation of her symptoms. After the hearing held in September 2006 and following the deposition of Dr. Ocel, the claimant submitted medical records from Dr. Herwick, who treated the claimant following her wrist fracture in 2000. Those records demonstrated that the claimant fractured her left wrist rather than her right wrist.
The ALJ weighed the lay and medical evidence and concluded that the claimant sustained an occupational disease of her right wrist. In general he credited the opinions of Dr. Healey over those of Drs. Hughes and Ocel. Accordingly, he ordered the respondent to pay temporary total disability benefits, medical benefits, and disfigurement benefits.
The respondent appealed the ALJ's order and argues, first, that he abused his discretion in admitting the medical reports of Dr. Herwick following the close of the claimant's case in chief and, second, that the ALJ erred in failing to resolve conflicts in the evidence concerning the claimant's previous wrist injury. We are not persuaded that the ALJ committed reversible error.
At the hearing held on September 16, 2006, the claimant testified and then called Dr. Healey as an expert witness. After he testified the claimant rested and the respondents called Dr. Hughes as their first witness. The direct and cross-examination of Dr. Hughes was completed and the hearing then adjourned, with the deposition of Dr. Ocel having already been set for a date in October 2006. On November 3, 2006, the claimant moved for a "determination of the admissibility" of medical reports from Dr. Herwick. As noted, Dr. Herwick's medical reports established that the claimant's previous fracture was to her left wrist rather than to the right one, thus undermining the respondent's defense that the claimant's wrist problems were attributable to a preexisting condition. On November 28, 2006, the ALJ entered an order granting the motion to admit Dr. Herwick's medical records. The ALJ also offered in the procedural order to conduct a prehearing conference or other proceedings in order to determine the future course of the litigation in light of his admission of Dr. Herwick's records. By correspondence to the ALJ the respondent indicated that they wished the pending hearing on December 11, 2006, to be used to "make a record" concerning the evidentiary matter.
The parties reconvened on December 11, 2006, when the respondent renewed its objection to the order admitting Dr. Herwick's medical records and requested that the ALJ reconsider his order. The parties presented argument regarding the respondent's request for reconsideration and the ALJ denied the motion and reaffirmed his original order admitting Dr. Herwick's records. Tr. (12/11/06) at 15. The ALJ then stated that "the issue becomes affording the Respondent an opportunity to reply to this evidence." Tr. (12/11/06) at 16. The ALJ then inquired of counsel for the respondent "what [he] would request . . . as an opportunity to respond." Tr. (12/11/06) at 16. The respondent's attorney replied that he assumed that the respondent would either recall Dr. Hughes for further testimony or submit a supplemental report from him, but in either case he needed to consult with his client. The parties then confirmed that, in any event, an additional hearing was required and the ALJ provided the respondent with additional time within which to submit Dr. Hughes' report or advise the claimant and the ALJ of any other requested relief. The ALJ then inquired of the respondent's counsel whether "there is any other relief you were looking for," to which he replied in the negative. Tr. (12/11/06) at 19.
A further hearing was then convened on February 2, 2007, at the commencement of which the respondents offered into evidence a medical report written by Dr. Hughes. Tr. (2/2/07) at 7. It was accepted without objection and the respondent then called a lay witness, who testified, following which the respondent rested.
It was within the ALJ's discretion to accept Dr. Herwick's medical reports following the adjournment of the first of the three hearings. The ALJ has wide discretion in the conduct of the evidentiary proceedings, including the decision whether to permit the admission of posthearing evidence. IMPC v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). Section 8-43-207(1)(j), C.R.S. 2006 expressly grants the ALJ authority to "adjourn any hearing to a later date for the taking of additional evidence." We may not interfere with the ALJ's decision to permit the admission of posthearing evidence unless an abuse of discretion is shown. Dee Enterprises v. Industrial Claim Appeals Office, 88 P.3d 430 (Colo.App. 2003); IPMC Transportation Co. v. Industrial Claim Appeals Office, supra. An abuse of discretion 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 receive additional evidence after a party has rested, 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 additional 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 Colo. 43, 453 P.2d 808 (1969). Finally, the ALJ should consider the expense and inconvenience incurred by the opposing party attendant to the receipt of the 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 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).
Here, the ALJ considered the relevant factors and expressly weighed each factor prior to concluding that Dr. Herwick's medical records should be admitted. Although the ALJ recognized that the "substantial modification" of the evidence resulting from the admission of Dr. Herwick's records might cause some additional expense to the respondent, the ALJ placed great weight on the potentially outcome determinative nature of the evidence. Moreover, the ALJ provided the respondent with ample opportunity to present further evidence, medical reports, or to otherwise rebut Dr. Herwick's records, essentially expressing a willingness to consider whatever procedural relief the respondent wished to propose. Under these circumstances, we cannot state that the ALJ's decision to admit the medical records following the close of the first hearing exceeded the bounds of reason. Moreover, the respondent has emphasized in its argument the highly prejudicial nature of the evidence to the respondent's defense of the claim. However, great probative force is not a factor weighing against the admission of disputed evidence. Indeed, as noted, the outcome determinative nature of the evidence is potentially a factor in favor of its admission.
We have considered the respondent's argument that the ALJ did not resolve conflicts in the record and it is without merit. The ALJ recognized the conflicting nature of the evidence and his dispositive factual findings resolve the conflicts and support his conclusion that the claimant sustained an occupational disease.
IT IS THEREFORE ORDERED that the ALJ's order dated March 11, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_________________________ LESLIE WINKLER W.C. No. 4-685-107 Page 5
_________________________ Curt Kriksciun
_________________________ Thomas Schrant
Leslie Winkler, Scottsdale AZ. United Airlines, c/o Denver International Airport Teresa Shea Pena Blvd. Denver, CO. Gallagher Bassett, Services Alice K. Troutman, Englewood, CO. John A. Kintzele, Esq. 1317 Delaware Street Denver, CO, (For Claimant).
John H. Sandberg. Esq. 3595 South Teller, Lakewood, CO, (For Respondents).