Opinion
W.C. No. 3-941-887.
November 22, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated March 29, 2010 and his supplemental order dated August 3, 2010. The ALJ issued his Findings of Fact, Conclusions of Law, and Order and granted the respondent's petition to reopen the claim based on a change in the claimant's medical condition. The ALJ also ordered that the respondent could proceed to terminate the claimant's permanent total disability benefits. The ALJ issued a supplemental order clarifying that he reviewed and considered certain evidence tendered by the claimant. We affirm.
Several of the ALJ's findings are summarized as follows. The claimant sustained a compensable injury when baskets fell on her head and shoulder on December 11, 1988. The claimant reached maximum medical improvement on June 19, 1992 and received an eight percent impairment based on her cognitive deficits. Another ALJ found the claimant to be permanently and totally disabled in December 1992. The claimant has not received medical care for her work injury since about June 1997.
The claimant became a victim of identity theft in 2006 and subsequently worked to identify the thief. The thief was apprehended and police lauded the claimant's efforts to track down the perpetrator. The claimant had obtained surveillance footage of the thief.
Dr. Paz examined the claimant on November 5, 2007. Dr. Paz considered the claimant's account of her daily activities, including operating a motor vehicle, surveillance video of the claimant, and the claimant's actions in tracking down the perpetrator of the identity theft. He opined that the claimant was employable as that term is discussed in the American Medical Association Guideline to the Evaluation of Permanent Impairment, Third Edition, Revised.
Dr. Thwaites examined the claimant in July and August 2009. He opined that the claimant's neuropsychological test results were inconsistent with her medical history and that the claimant exhibited more function in her daily life now than she did in 1992. Dr. Thwaites concluded that the claimant does not have evidence of either a neurological insult or a neurocognitive injury as a result of her industrial injury. He stated that it is medically probable that the claimant could return to work.
Dr. Moe, testifying as an expert in psychiatry, examined the claimant and reported that the claimant was exhibiting intentional exaggeration. He opined that the claimant had improved since June 1992 and stated that the claimant is currently as able to work as she was prior to her injury.
The ALJ made additional findings as to the claimant's testimony and that of witnesses regarding the claimant's ability to work. Ms. Montoya, a vocational expert, concluded that the claimant could earn wages in the same or other employment as she previously had based on restrictions imposed by Dr. Paz, Dr. Thwaites, and Dr. Moe.
Crediting the opinions of Dr. Paz, Dr. Thwaites, Dr. Moe, and Ms. Montoya, the ALJ was persuaded that the claimant is capable of employment and determined that the respondent established by a preponderance of the evidence that the claimant is regularly employable in well-known branches of the labor market. Thus, the ALJ determined that the claimant is regularly employable and not permanently totally disabled or entitled to such benefits.
The claimant reviews certain evidence in the record that could support inferences contrary to those made by the ALJ. However, the existence of evidence that would support a contrary result provides no relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002).
The claimant contends that the ALJ improperly imposed the burden of proof on the claimant regarding the respondent's petition to reopen. The claimant notes that the ALJ refers in his order to the claimant's general burden to establish a right to permanent total disability benefits or to any benefits by a preponderance of the evidence. Findings of Fact, Conclusions of Law, and Order (Order) at 11-12, ¶ 4. Nonetheless, the ALJ recognized that normally the burden to show a change in condition is with the party asserting such a change. Order at 11, ¶ 4. The ALJ goes on to state that the respondent established by a preponderance of the evidence that the claimant's condition improved. Order at 12, ¶ 5. It is clear from his order that the ALJ properly allocated the burden of establishing the basis for reopening this claim. See § 8-43-303(4), C.R.S. ("The party attempting to reopen an issue or claim shall bear the burden of proof as to any issues sought to be reopened.")
The claimant argues that the ALJ effectively allowed the respondent to challenge another ALJ's earlier determination of the extent of the claimant's injury by allowing evidence regarding the actual existence of a brain injury. However, in his order the ALJ clearly credited expert opinions regarding current condition. Order at 5-6, ¶ 22, 8 ¶ 35, 10 ¶ 55, and 12, ¶ 9. It is therefore apparent that the ALJ based his decision to reopen the claim on the claimant's change in condition at the present time.
The claimant asserts that the ALJ failed to consider her evidence as indicated by the ALJ's failure to discuss in his order various reports introduced into evidence by the claimant. However, the ALJ is not required to explicitly discuss evidence or theories he rejected as unpersuasive. Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232 (1966). Moreover, as indicated in his supplemental order, the ALJ considered the reports introduced by the claimant. Thus, the ALJ considered the reports, but was not persuaded to credit them.
The claimant further asserts that the respondent's vocational expert, Ms. Montoya, applied an incorrect legal standard in opining that the claimant was not permanently and totally disabled, but capable of being employed. In that regard, the ALJ expressly credited Ms. Montoya's opinion that the claimant could earn wages in the same or other employment as she previously had. Order at 10, ¶ 55, 12, ¶ 9. Ms. Montoya's opinion reflects the current statutory definition of permanent total disability. See § 8-40-201(16.5)(a), C.R.S. (""Permanent total disability' means the employee is unable to earn any wages in the same or other employment.'") However, the ALJ's analysis of the claimant's condition is consistent with the permanent total disability standards applicable for the claimant's date of injury. Order at 12, ¶ 8. See Weld County Sch. Dist. RE-12 v. Bymer, 955 P.2d 550, 553-54 (Colo. 1998) (reviewing judicial standards for permanent total disability prior to 1991 statutory amendments to definitions in Workers' Compensation Act). If anything, Ms. Montoya's consideration of a later definition of permanent total disability goes to the weight to be afforded her opinion. See, Cordova v. Industrial Claim Appeals Office, supra (weight and credibility to be assigned expert testimony is matter within discretion of ALJ).
In any event, the ALJ's determination that the claimant's condition changed is based on multiple sources, including the opinions of other experts, the claimant's lack of ongoing medical treatment, and the claimant's own testimony. We therefore disagree with the claimant's assertion that there is no competent evidence to support the ALJ's determination that the claimant is no longer permanently and totally disabled. Furthermore, as the parties recognize, we must uphold the ALJ's factual determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo. App. 1995).
The record supports the ALJ's findings. For example, the ALJ found, with citations to the record, that the claimant testified that her cognitive problems were better now than they were in 1992 and that she had not received treatment for her work injury since 1997. Order at 9, ¶ 43-44. As noted above, the ALJ credited the opinions of Dr. Paz, Dr. Thwaites, and Dr. Moe. The ALJ was persuaded by the claimant's lack of medical treatment, her current behaviors, and expert opinions that the claimant is not permanently and totally disabled.
The claimant's arguments regarding the weight the ALJ afforded to the opinions of various doctors provide no basis for relief. It is the ALJ's sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. As to expert medical opinions, it is for the ALJ to determine the weight and credibility of such opinions and we may not reweigh the evidence based upon the claimant's argument that the respondent's expert testimony was not credible. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo. App. 1990).
The reopening authority granted ALJs by section 8-43-303 "is permissive, and whether to reopen a prior award when the statutory criteria have been met is left to the sound discretion of the ALJ." Cordova, 55 P.3d at 189. The party seeking reopening bears "the burden of proof as to any issues sought to be reopened." Section 8-43-303(4), C.R.S. In the absence of fraud or clear abuse of discretion, the ALJ's decision concerning reopening is binding on appeal. Jarosinski v. Indus. Claim Appeals Office, 62 P.3d 1082, 1084 (Colo. App. 2002). An abuse of discretion occurs when the ALJ's order is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law. Id. We find no error in the ALJ's decision to reopen the claim and determine that the claimant's condition had changed to where she is no longer permanently and totally disabled. IT IS THEREFORE ORDERED th his supplemental order dated August 3, 2010 at the ALJ's order dated March 29, 2010 and are affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
DELORES RISBERG, 9970 W 59TH AVE #301, ARVADA, CO, (Claimant).
KING SOOPERS, Attn: THE KROGER CO, DENVER, CO, (Employer).
THE ELLIOTT LAW OFFICES, PC, Attn: MARK D. ELLIOTT, ESQ., ARVADA, CO, (For Claimant).
THOMAS, POLLART MILLER LLC, Attn: BRAD J MILLER, ESQ./ILENE H FELDMEIER, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).
SEDGWICK, CMS, Attn: SHARMIE JENSEN, LEXINGTON, KY, (Other Party).