Opinion
W.C. No. 4-745-833.
May 24, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) dated December 7, 2009 that determined that the respondents are liable for permanent partial disability benefits based on a nine percent whole person impairment rating of the cervical spine and based on an 18 percent impairment rating of the upper extremity. We affirm.
A hearing was held on the issues of whether the respondents could overcome the impairment rating of the Division-sponsored independent medical examination (DIME) and whether the claimant's impairment rating attributable to his left upper extremity injury should be a whole person rating or an extremity rating. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. On December 14, 2007 the claimant sustained compensable injuries to his left shoulder and neck. He was evaluated by Dr. Cedillo, who, after additional treatment, diagnostic testing, and surgery, placed him at maximum medical improvement on December 18, 2008. Dr. Cedillo determined that the claimant sustained 21 percent impairment of the left upper extremity, which he converted to 13 percent of the whole person pursuant to the AMA Guides to the Evaluation of Permanent Impairment. The claimant obtained a Division-sponsored independent medical examination (DIME), which was performed by Dr. Healey on November 14, 2008. Dr. Healey reported that the claimant required additional evaluation of his neck, shoulder and axillary nerve neuropathy and possible radiculopathy. After additional testing and treatment, Dr. Healey stated that the claimant had reached maximum medical improvement on April 29, 2009. Dr. Healey reported that the claimant had sustained impairment equal to nine percent of the cervical spine and 18 percent of the left upper extremity, which he converted to 11 percent impairment of the whole person, for a combined whole person impairment rating of 19 percent.
The ALJ also found that the respondents' independent medical examiner, Dr. Goldman, opined that no impairment rating for the claimant's cervical spine should have been assigned. The ALJ concluded that Dr. Goldman's disagreement with Dr. Healey did not rise to the level of clear and convincing evidence and that the respondents failed to overcome the DIME doctor's opinion. The ALJ therefore awarded permanent partial disability benefits based upon the nine percent whole person impairment rating for the claimant's cervical condition. The ALJ also concluded that the respondents had carried their burden of showing that the 11 percent whole person impairment rating for the claimant's arm injury should be compensated based only on the extremity rating of 18 percent. The ALJ therefore awarded permanent partial disability benefits based upon the 18 percent extremity impairment rating and the nine percent whole person impairment rating.
The claimant appealed the ALJ's order. The dispute in this appeal arises from the procedural means by which the ALJ ordered payment of benefits based upon the extremity impairment rating. At the commencement of the hearing the parties apparently agreed that the two issues that would be litigated would be the propriety of the nine percent cervical rating and the conversion of the extremity rating. Tr. at 12. Following a somewhat lengthy discussion the parties also apparently agreed that the respondents had the burdens of going forward and of proof on both issues. In this regard, the ALJ noted that the respondents' burden was to overcome the nine percent whole person impairment rating assigned by the DIME doctor by clear and convincing evidence. Their burden to show that the impairment of the arm should be compensated using the 18 percent extremity rating was by a preponderance of the evidence. Tr. at 8-9, 12.
Following the presentation of the respondents' case in chief the claimant moved for a "directed verdict." Tr. at 98. Considerable discussion ensued, largely regarding the question whether the respondents had carried their burden of overcoming the DIME report on the issue of the cervical impairment. At the end of the parties' argument on the motion for a directed verdict the ALJ ruled that the respondents had not carried their burden of overcoming the DIME report by clear and convincing evidence. Tr. at 110-14. Since the parties had agreed that the respondents had the burden of proof on that issue, it was therefore unnecessary for the claimant to present evidence or testimony to establish the existence of the nine percent whole person impairment rating. The ALJ then instructed the claimant's attorney regarding the formatting of the proposed order and other clerical requirements relevant to its preparation and submission. Following that the claimant's attorney asked the ALJ whether he was also ruling that the respondents had met their burden of proof to show that benefits related to the shoulder injury should be paid based on the extremity impairment rating. Tr. at 116. The ALJ responded that he had concluded that the respondents carried their burden in that respect and that the claimant's benefits should be based on the nine percent whole person impairment rating and the 18 percent extremity impairment rating, the latter without being converted to a whole person impairment rating. At that point the hearing adjourned.
On appeal the claimant argues that the ALJ should not have ruled on the extremity rating without affording him an opportunity to present evidence. As we understand his argument it is that when the ALJ concluded that the respondents had made a sufficient showing that the extremity rating should not be converted, he should merely have denied the motion for a directed verdict. Following the denial of the motion the claimant then had the opportunity to present his case and the matter would have been resolved at the close of the evidentiary portion of the proceeding. We agree that the ALJ erred in this regard. Nonetheless, we conclude that the claimant waived his right to put on further evidence.
A motion for a directed verdict is an appropriate procedural step to test the sufficiency of a party's case in a workers' compensation proceeding. C.R.C.P. 41(b)(1) provides that, after a plaintiff in a civil action tried without a jury has completed the presentation of the evidence, the defendant may move for a dismissal on the grounds that the plaintiff has failed to present a prima facie case for relief. In determining whether to grant a motion for a directed verdict, the court is not required to view the evidence in the light most favorable to the plaintiff. Rowe v. Bowers, 160 Colo. 379, 417 P.2d 503 (1966); Blea v. Deluxe/Current, Inc., W.C. Nos. 3-940-062 (June 18, 1997) (applying these principles to workers' compensation proceedings). See also Office of Administrative Courts Procedural Rules for Workers' Compensation Hearings, OAC Rule 2.B (Colorado rules of civil procedure apply to workers' compensation hearings unless inconsistent). Neither is the court required to "indulge in every reasonable inference that can be legitimately drawn from the evidence" in favor of the plaintiff. Rather, the test is whether judgment for the respondents is justified on the claimant's evidence. American National Bank v. First National Bank, 28 Colo. App. 486, 476 P.2d 304 (1970); Bruce v. Moffat County Youth Care Center, W. C. No. 4-311-203 (March 23, 1998).
However, neither C.R.C.P. 41, nor any other rule of which we are aware, permits the ALJ to rule on the merits of an issue at the close of the party's case and in that party's favor, without then affording the moving party the opportunity to present evidence. The rule itself permits the defendant to seek dismissal of the case "without waiving his right to offer evidence in the event the motion is not granted. . . ." C.R.C.P. 41(b)(1). The rule states that when a motion is made that the plaintiff has shown no right to relief "[t]he court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render judgment until the close of all the evidence." The court may not render judgment against the moving party until the close of all the evidence, that is, until the moving party has presented his case. In this regard, we agree with the claimant's attorney that he did not state to the ALJ in connection with his motion that he had no evidence to present at the close of the respondents' case. The ALJ's finding to the contrary is therefore without support in the record. Indeed, at the beginning of the hearing, the parties engaged in a lengthy discussion regarding the number of witnesses the claimant had waiting to testify and whether their testimony would be cumulative or relevant. Tr. at 12-15. Nowhere in conjunction with the claimant's motion for a directed verdict or afterward are we able to locate a point in the transcript where the claimant stated that he had dismissed his witnesses or otherwise determined that they would not testify.
Nonetheless, despite the ALJ's error in ruling on the issue of converting the extremity rating without permitting the claimant to present evidence, we conclude that the claimant waived that right. Where the administrative adjudication turns on issues of fact, due process requires that the parties be afforded a reasonable opportunity in which to confront adverse witnesses and present evidence and argument in support of their position. However, parties may waive procedural due process rights. Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo. App. 1995). Waiver is the intentional relinquishment of a known right. Waiver may be express, as when a party states its intent to abandon an existing right, or implied, as when a party engages in conduct which manifests an intent to relinquish the right or acts inconsistently with its assertion. Burlington Northern R. Co. v. Stone Container Corp. 934 P.2d 902 (Colo. App. 1997). To constitute an implied waiver, the conduct must be free from ambiguity and clearly manifest the intent not to assert the benefit. Department of Health v. Donahue, 690 P.2d 243 (Colo. 1984); Burman v. Richmond Homes Ltd., 821 P.2d 913 (Colo. App. 1991).
Here, we conclude that the claimant waived the right to present evidence that he sustained functional impairment not on the schedule and that he was entitled to benefits based on a whole person impairment rating for his shoulder injury. City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997); Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo. App. 1994). As previously noted, he moved for a directed verdict at the close of the respondents' case. The discussion and argument that followed focused only on the issue of the whole person impairment rating assigned to the claimant's cervical impairment. The ALJ's oral ruling from the bench addressed only that issue until the claimant's attorney reminded the ALJ that at the commencement of the hearing the parties had agreed that the issue of the conversion of the extremity rating would be litigated. Tr. at 116. The claimant's attorney then asked whether the ALJ was "ruling that they have met their burden of proof on the conversion issue?" Tr. at 116. The ALJ then ruled that the respondents had carried that burden and that benefits should be paid based upon the extremity impairment rating. At the end of his oral ruling the ALJ asked the claimant's attorney whether there were "[a]ny other loose ends?" Tr. at 118. The ALJ and the parties then briefly discussed the time period permitted for the claimant's submission of a proposed order, after which the ALJ again asked the claimant's attorney whether he had "anything further." Tr. at 120. He replied that he did not. Tr. at 120. In our view this conduct constituted a waiver of the right to present evidence regarding the possible conversion of the extremity impairment rating to a whole person impairment rating.
We also note that approximately a week following the close of the hearing the claimant moved to reopen the evidentiary portion of the hearing for the taking of the claimant's evidence on the issue of the impairment resulting from his shoulder injury. The ALJ denied that motion. Insofar as the claimant contends now that the ALJ's refusal to reopen the proceedings constituted reversible error, we are unpersuaded. An ALJ has wide discretion to determine whether, after the apparent conclusion of the proceedings, it is appropriate to reopen the matter for the taking of additional evidence. See IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo. App. 1988). The appellate standard on review of an alleged abuse of discretion is whether the ALJ's order exceeds the bounds of reason, as where it is contrary to the applicable law or unsupported by the evidence. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985). Here, we perceive no abuse of discretion in the ALJ's refusal to accept additional evidence. In our view, having waived the right to present evidence on a particular issue, the ALJ was not compelled to reopen the evidentiary portion of the proceedings to permit the claimant another opportunity to do so.
Finally, insofar as the claimant argues that the ALJ failed to resolve factual conflicts in the evidence in concluding that the extremity rating should not be converted to a whole person rating, we disagree. As we read the ALJ's order, he concluded that there was "no persuasive evidence" warranting conversion of the extremity impairment rating. Insofar as the record contained evidence from which the ALJ might have inferred that there was functional impairment not compensated on the schedule, he was unpersuaded by that evidence. See Strauch v. Industrial Claim Appeals Office, 917 P.2d 366 (Colo. App. 1996) (whether to convert extremity impairment rating depends upon the situs of the claimant's "functional impairment,"); Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo. App. 1996) (same). We cannot state from a review of the factual record that the ALJ was compelled to conclude that after weighing the evidence the extremity impairment rating should necessarily have been converted to a whole person impairment rating. As previously noted, the claimant waived the right to present evidence regarding that issue and therefore the factual record was not fully developed and consequentially somewhat sparse concerning the conversion of the extremity rating.
IT IS THEREFORE ORDERED that the ALJ's order dated December 7, 2009, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
BLAS ROMERO, LONGMONT, 10910 TURNER BLVD, LOT 108, CO, (Claimant).
TRISTAR DRYWALL, INC., Attn: PERSONNEL MANAGER, CENTENNIAL, CO, (Employer).
TRUCK INSURANCE EXCHANGE, Attn: LISA WATKINS, C/O: FARMERS INSURANCE GROUP, DENVER, CO, (Insurer).
TAUSSIG LAW FIRM, LLC, Attn: JOHN G TAUSSIG III, ESQ., BOULDER, CO, (For Claimant).
JOEL N VARNELL ASSOCIATES, Attn: JOE ESPINOSA, ESQ., DENVER, CO, (For Respondents).
INTERNATIONAL LANGUAGE SOLUTIONS, INC, DENVER, CO, (Other Party).