Opinion
W.C. No. 4-163-762
April 16, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied the claimant's petition to reopen based upon an alleged worsening of condition. We affirm.
In 1992 the claimant suffered an admitted low back injury which was treated conservatively by Dr. Harris. The claimant ultimately underwent a Division-sponsored independent medical examination (DIME) by Dr. Finn on January 11, 1996. Dr. Finn diagnosed left S1 joint dysfunction, lumbar myofascial pain, sleep disturbance, disc degeneration and leg length discrepancy. Dr. Finn opined the claimant was not at maximum medical improvement (MMI) and recommended additional treatment.
On September 26, 1996, Dr. Finn assigned a 5 percent impairment rating for a specific disorder of the lumbar spine and 7 percent for range of motion deficits in the lumbar spine. The respondents filed a Final Admission of Liability consistent with Dr. Finn's rating and the claim was closed. However, the claimant continued to receive medical benefits to maintain MMI.
In January 1999, the claimant returned to Dr. Harris with complaints of increased sacral pain. In February 1999, the claimant was hospitalized for GI tract bleeding caused by anti-inflammatory medications.
Relying on a report by Dr. Harris dated May 8, 2001, the claimant petitioned to reopen the claim and requested additional temporary partial and temporary total disability commencing May 8, 2001. Dr. Harris opined the claimant's condition from the industrial injury deteriorated after MMI. In particular Dr. Harris opined that abnormal posturing brought on by the effects of the industrial injury caused the claimant to develop "severe bilateral sacroiliac arthritis." Further, Dr. Harris opined that the worsened condition impaired the claimant's ability to work by 2 hours per day and by 25 percent in intensity.
On July 25, 2001, Dr. Griffis disagreed with Dr. Harris about whether the claimant's industrial injury had worsened. Rather, Dr. Griffis opined the claimant was at MMI and continued to require maintenance medical treatment.
Crediting the opinions of Dr. Griffis and rejecting the contrary opinions of Dr. Harris, the ALJ found the claimant failed to prove a worsening of his functional condition from the industrial injury. Instead the ALJ found the claimant's condition had "waxed and waned" since MMI. In so doing the ALJ recognized the claimant's reduced range of motion measurements at the time of Dr. Griffis' examination. However, the ALJ found the deficits were inconsistent with Dr. Griffis' clinical observations. Therefore, the ALJ denied the petition to reopen. The claimant timely appealed.
The claimant's Petition to Review alleged the ALJ erred in failing to grant the petition to reopen. However, the Petition does not contain any specific allegations of error.
On November 19, 2001, a briefing schedule was issued. The claimant requested an extension of time until December 27, 2001, to file a brief in support of the petition to review. The request was granted. The claimant was granted a second extension to January 29, 2002 and the respondents were granted an extension to February 5, 2002 to file a brief in opposition to the petition to review. The claimant's opposition brief was filed February 1, 2002 and the record was "green sheeted" to us for review on February 20, 2002.
On February 28, 2002, the claimant requested an additional extension of time to March 19, 2002. The claimant then filed a brief on March 19, 2002.
The record does not contain any order extending the period of time for filing a brief in support of the petition to review beyond January 29, 2002. Furthermore, the claimant's request for a third extension was not filed until after the expiration of the last extension. Although, the office of claimant's counsel notified our staff that an extension was granted, any such extension would be contrary to Rule of Procedures VII(D)(4), 7 Code Colo. Reg. 1101-3. Accordingly, the claimant's brief in support of the petition to review is untimely and will not be considered. Section 8-43-301(4), C.R.S. 2001.
Our authority to review the ALJ's order is defined in § 8-43-301(8), C.R.S. 2001. That statute precludes us from disturbing the ALJ's order unless the ALJ's findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ's findings, the findings do not support the order, or the order is not supported by the applicable law.
We note the claimant's Designation of Record includes the "Division of Workers' Compensation file." The record transmitted to us on appeal apparently does not include the Division of Workers' Compensation file. However, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the claimant requested the ALJ to consider the entire Division of Workers' Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(7). Consequently, we have not obtained or considered the Division of Workers' Compensation file, but restricted our review to the record made at the hearing.
The decision to reopen a claim is discretionary with the ALJ, and that discretion is absolute in the absence of fraud or a clear abuse of discretion. Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986); Chavez v. Industrial Commission, 714 P.2d 1328 (Colo.App. 1985). An ALJ's order is an abuse of discretion where it is beyond the bounds of reason, as where it is unsupported by the law or the evidence. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
We have reviewed the record and the ALJ's findings of fact. The ALJ's findings are sufficient to permit appellate review, and the findings indicate that the ALJ resolved conflicts in the evidence based upon his credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
The medical records are subject to conflicting inferences. However, the claimant has not designated as part of the record a transcript of the hearing on September 5, 2001. Under these circumstances we are required to presume the ALJ's findings of fact are supported by substantial evidence in the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).
Moreover, the ALJ's factual determinations support the conclusion that the claimant failed to prove his disability after May 8, 2001, was causally related to a worsening of the industrial injury. Under these circumstances, we cannot say the ALJ abused his discretion by refusing to reopen the claim for purposes of reinstaing temporary disability benefits effective May 8, 2001. Section 8-43-303 C.R.S. 2001; Richards v. Industrial Claim Appeals Office, 996 P.2d 756 (Colo.App. 2000); Chavez v. Industrial Commission, 714 P.2d 1328 (Colo.App. 1985).
IT IS THEREFORE ORDERED that the ALJ's order dated September 19, 2001, 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. 2001. 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 April 16, 2002 to the following parties:
Donald R. Brodbeck, P. O. Box 4705, Woodland Park, CO 80866
Too Busy Painting, P. O. Box 429, Divide, CO 80814-0429
Curt Kriksciun, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Grant C. Butterfield, Esq., 600 17th St., #1600N, Denver, CO 80202
BY: A. Hurtado