Opinion
W.C. No. 4-398-818
March 14, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Henk (ALJ), insofar as the order determined that her condition had not worsened and denied the petition to reopen. We affirm.
On July 2, 1997, the claimant sustained a compensable knee injury which was in the nature of an aggravation of preexisting chondromalacia. On March 23, 1998, the claimant's treating physician, Dr. Mitchell, placed the claimant at maximum medical improvement (MMI), and rated a 15 percent impairment of the left lower extremity. Dr. Mitchell also stated the claimant should maintain an independent exercise program, and would need a continuing prescription for the drug salsalate. Further, Dr. Mitchell indicated the claimant would need to be seen twice per year to monitor her reaction to the drug. On March 30, 1998, the respondent filed an uncontested Final Admission of Liability based on Dr. Mitchell's impairment rating, and also agreed to provide salsalate and the recommended monitoring.
In February 1999 the claimant filed a petition to reopen based on an alleged worsening of condition. The claimant sought to reopen and establish her right to medical benefits under Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). (Tr. p. 3).
The claimant was examined by Dr. Ryan in January 1999. Dr. Ryan opined that the claimant "seems to be about the same as when Dr. Mitchell discharged her, with respect to range of motion and subjectively in terms of symptoms." Dr. Ryan also stated that the claimant "needs to have some maintenance treatment" including "re-instruction" for her exercise program. The claimant was reexamined by Dr. Mitchell on April 8, 1999. Dr. Mitchell, reported the claimant's condition is "gradually worsening as degenerative joint diseases often do." Nevertheless, Dr. Mitchell stated "there is no change in the date" of MMI, and recommended only a trial of a new medication "with appropriate medical supervision annually."
The ALJ found the opinions of Dr. Ryan and Dr. Mitchell credible with respect to the claimant's "present condition." Therefore, the ALJ determined the claimant failed to prove that her condition has worsened since she reached MMI on March 23, 1998. However, the ALJ also found that the respondent's final admission of liability admitted for ongoing medical treatment after MMI. Further, the ALJ found the claimant proved the need for continued medication, annual supervision, and re-instruction in her exercise program. Thus, the ALJ denied the petition to reopen, but awarded the medical benefits requested by the claimant.
I.
On review, the claimant seeks review of the ALJ's order insofar as it denied the petition to reopen. The claimant argues the ALJ should reopen the case to award medical treatment for the claimant's left knee, and to treat "depression" allegedly connected to the knee injury. In support, the claimant points out that reopening may be permitted to award additional medical treatment, and argues that Dr. Mitchell's's April 8 report establishes a worsening of the knee condition as well as the existence of depression. We find no error.
In order to reopen based on a worsened condition the claimant must prove a worsening in her physical or mental condition which is causally related to the industrial injury. Chavez v. Industrial Commission, 714 P.2d 1328 (Colo.App. 1985). The ALJ has wide discretion in determining whether the claimant has established the requisite worsening, and her decision will not be overturned in the absence of fraud or clear abuse of discretion. Richards v. Industrial Claim Appeals Office, ___ P.2d ___, (Colo.App. No. 99CA 0593, January 20, 2000). An abuse of discretion is not shown unless the ALJ's order is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law. Rosenberg v. Board of Education of School District No. 1, 710 P.2d 1095 (Colo. 1985).
Further, we must uphold the ALJ's pertinent findings of fact if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 1999. This standard requires us to defer to the ALJ's resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Insofar as the testimony or report of an expert contains inconsistencies, the ALJ may resolve the inconsistencies by crediting part or none of the testimony. Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997). Further, the ALJ need not make specific findings of fact concerning every piece of evidence in the record, so long as the basis of the order is clear. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
It is true, as the claimant argues, that if the ALJ finds the claimant's condition has worsened the ALJ may reopen the claim to award additional medical benefits. Dorman v. B W Construction Co., 765 P.2d 1033 (Colo.App. 1988). However, reopening need not be ordered if, once the claim is reopened, no additional benefits are available. Richards v. Industrial Claim Appeals Office, supra.
Here, substantial evidence supports the ALJ's determination that the claimant's condition has not worsened since she reached MMI on March 28, 1998. Although Dr. Mitchell reported a "gradual worsening" of the claimant's degenerative knee condition, the ALJ could plausibly interpret this statement as representing the expected course of the condition after MMI, and that Dr. Mitchell opined the condition could not be improved by any available treatment. This is particularly true in light of Dr. Mitchell's statement that the claimant remains at MMI, and her failure to prescribe any new type of treatment. Further, the ALJ's conclusion is supported by the report of Dr. Ryan. It is also true that Dr. Mitchell reported the claimant was experiencing some depression. However, Dr. Mitchell did not prescribe any treatment for depression, and the evidence suggests the claimant was suffering from the condition before the industrial injury. (Tr. p. 11). Thus, the record supports the ALJ's implicit conclusion that the alleged depression does not constitute a worsening of condition.
In any case, the ALJ determined that, by virtue of the respondent's final admission, the claimant is entitled to the very medical benefits which she sought at the hearing. The ALJ found that the respondent's final admission of liability admitted for ongoing medical benefits pursuant to Grover v. Industrial Commission, supra, and the respondent did not dispute this determination. Accordingly, the claimant was not required to "reopen" the claim to receive additional Grover-type medical benefits which she proved are reasonable and necessary to relieve the effects of the injury. See Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995); Milco Construction v. Cowan, 916 P.2d 609 (Colo.App. 1992).
The ALJ found the claimant proved that continuing medications, medical monitoring, and "re-instruction" are reasonable and necessary to relieve her condition. Thus, there was no need to "reopen" the claim to award the additional medical benefits. Richards v. Industrial Claim Appeals Office, supra.
II.
In reaching our conclusions we necessarily reject the respondents' contention that the claimant failed to file a timely petition to review the ALJ's order of July 1, 1999. It is true that the claimant did not file a pleading entitled "petition to review" the July 1 order. However, on July 7, 1999, the claimant filed a pleading entitled "Motion for Extension of Time in Which to File Brief in Support of Petition to Review the Adverse Findings of Fact, Conclusions of Law and Order of July 1, 1999, (Not Mailed Until July 6, 1999) Until Thirty Days After the Transcript of the Hearing is Filed." Contemporaneous with this pleading the claimant requested the reporter to prepare a transcript of the hearing.
Although the claimant's July 7 pleading states a separate petition to review was filed, the motion itself is sufficient to indicate the claimant's disagreement with the ALJ's July 1 order, and the claimant's intent to seek review of the order. Consequently, we consider the document sufficient to constitute a petition to review under § 8-43-301(2), C.R.S. 1999. See Miller v. Industrial Commission, 28 Colo. App. 462, 474 P.2d 177 (1970); Cook v. TLC Staff Builders, Inc., W.C. No. 4-277-752 (May 6, 1998).
IT IS THEREFORE ORDERED of the ALJ's order dated July 1, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 1999. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed March 14, 2000 to the following parties:
Ann L. Woltering, 1594 S. Cape St., Lakewood, CO 80232
St. Anthony's Health Services, Attn: Jean Lindsay, 4200 W. Conejos St., #524, Denver, CO 80204
Alternative Insurance Management Services, Attn: Kathy Lindgren, 1115 Elkton Dr., #400, Colorado Springs, CO 80907
Jack Kintzele, Esq., 1317 Delaware St., Denver, CO 80204 (For Claimant)
Karen R. Wells, Esq., 3900 E. Mexico, #1000, Denver, CO 80210 (For Respondent)
BY: A. Pendroy