Opinion
W.C. No. 4-203-686.
January 25. 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated June 21, 2006 that dismissed the claimant's petition to reopen and denied the claim for additional temporary total disability (TTD) benefits. We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant suffered a compensable occupational disease of myelofibrosis and myeloid metaplasia as a result of exposure to benzene. The claimant was placed at maximum medical improvement (MMI) on November 19, 1996 and the respondents filed a final admission of liability which provided for thirty-four percent permanent partial disability benefits. The claimant filed a petition to reopen in 2004 supported by medical reports. Dr. Gray opined that the claimant's condition had worsened since 1996 because the claimant was now anemic and the only potential cure for the claimant's condition would be a bone marrow transplant. The only benefits sought by the claimant at the time of the hearing were TTD benefits. The claimed TTD benefits were for the period of time he missed work from September 26, 2005 through September 30, 2005 when he traveled to the Mayo Clinic to determine whether he was a candidate for a bone marrow transplant. Following the testing at the Mayo Clinic the claimant returned to his job as an auto part counter salesman. Dr. Gray testified that a transplant would not currently be reasonable because the claimant was basically asymptomatic and a transplant presented significant risks. Dr. Gray testified that the testing at the Mayo Clinic constituted maintenance care and was not designed to cure or relieve the effects of the claimant's underlying condition. The ALJ concluded that the claimant's testing at the Mayo Clinic was not designed to cure and relieve the effects of the claimant's occupational disease but to determine whether the claimant was currently a candidate for a bone marrow transplant. Therefore, the ALJ found the claimant had failed to establish that he was entitled to additional TTD benefits for the period of time he was at the Mayo Clinic and was not entitled to reopen his workers' compensation claim.
The claimant contends that in connection with his petition to reopen the ALJ was compelled to find that he was not at MMI until he underwent the recommended diagnostic testing for medical treatment that could potentially cure and relieve the effects of the injury. The claimant sought only additional TTD benefits, since all medical benefits had been provided by the respondents. Tr. at 7 8. Under the circumstances here, we perceive no reversible error in the ALJ's order denying the petition to reopen.
Initially we note that it appears from the record that the claimant is not under any circumstances entitled to the first three days of TTD sought. The respondents' amended final admission of liability states that the respondents admitted for and paid both medical benefits and permanent partial disability benefits, but it does not record the payment of any temporary total disability benefits. Section 8-42-103(l)(b), C.R.S. 2006 provides that the period of disability must last longer than two weeks, and only then is the disability indemnity "recoverable from the day the injured employee leaves work." Here, it appears undisputed that the period of alleged disability was less than two weeks and therefore the claimant would be entitled only to two days of TTD following the initial three day period of temporary disability. Section 8-42-103(l)(a), C.R.S. 2006.
In order to reopen a claim pursuant to § 8-43-303(1), C.R.S. 2006 the claimant must prove a worsening of his condition that is causally related to the industrial injury. Moreover, the worsened condition must warrant further benefits. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002); Richards v. Industrial Claim Appeals Office, 996 P.2d 756 (Colo.App. 2000). The reopening authority under the provisions of § 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. Renz v. Larimer County Sch. Dist. Poudre R-l, 924 P.2d 1177 (Colo.App. 1996). A claimant has the burden of proof in seeking to reopen a claim. Cordova v. Industrial Claim Appeals Office of the State 55 P.3d 186 (Colo.App. 2002.) The determination whether to reopen a claim is discretionary with the ALJ and, absent fraud or a clear abuse of that discretion, we may not disturb the ALJ's order. Osborne v. Industrial Claim Appeals Office, 725 P.2d 850 (Colo.App. 1986). An abuse of discretion is only shown where the order exceeds the bounds of reason, such as where it is unsupported by substantial evidence or is contrary to law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
Further, the findings of fact upon which the ALJ bases his determination must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2006. In applying the substantial evidence test, we must defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences that he drew from the evidence. Wilson v. Industrial Claim Appeals Office, 81 P.3d. 1117 (Colo.App. 2003). To the extent medical evidence is presented, it is solely the ALJ's responsibility to assess the weight of that evidence and resolve any conflicts or inconsistencies. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The sole issue on appeal is whether the ALJ abused his discretion in denying the claimant's petition to reopen for the purpose of obtaining additional TTD benefits based on the claimant undergoing certain diagnostic tests, when the claimant otherwise remained at MMI. Contrary to the claimant's argument, in our view this case is similar to Richards v. Industrial Claim Appeals Office, 996 P.2d 756 (Colo.App. 2000). In Richards the issue was whether a workers' compensation case could be reopened for the purpose of obtaining additional TTD benefits based on a temporary change in medications resulting in increased pain when the claimant otherwise remained at MMI. In Richards the ALJ found that although the treating physician stated that the claimant's clinical condition had deteriorated the claimant's underlying back condition had not worsened. The court in Richards concluded that the ALJ did not abuse his discretion in refusing to reopen the claim.
The claimant notes that here the ALJ found that because the claimant developed anemia his condition had worsened since being placed at MMI. Therefore, he argues that he was no longer at MMI as a matter of law because it was recommended that he should undergo diagnostic testing in order to determine whether or not a bone marrow transplant would be an appropriate current treatment option. See § 8-40-201(11.5), C.R.S. 2006 (defining MMI as the point in time when any medically determinable physical or mental impairment as a result of injury has become stable and when no further treatment is reasonably expected to improve the condition).
However, here the ALJ found with record support that the claimant has remained at MMI since November 19, 1996. Deposition of Jan L. Gray, M.D. at 33-35. Moreover, he correctly concluded that TTD benefits cease when a claimant reaches MMI, and may not be paid so long as the claimant continues at MMI. Section 8-42-105(3)(a), C.R.S. 2006; Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999). Therefore, an award of TTD benefits could not be made, and there was therefore no basis for reopening.
Reopening a case is not warranted if, once reopened, no additional benefits may be awarded. Richards supra.; See also Industrial Commission v. Vigil, 150 Colo. 356, 373 P.2d 308 (1962) (where claimant sought to reopen to obtain additional permanent partial disability benefits, the petition was denied because the claimant had not shown increased permanent disability); Brickell v. Business Machines, Inc., 817 P.2d 536 (Colo.App. 1990) (reopening is appropriate if additional benefits are warranted); Dorman v. B W Construction Co., supra (while the reopening statute permits the reopening of an award if a worker's physical condition has worsened, a reopening is warranted only if additional benefits may be awarded).
As the claimant points out, we have previously held that diagnostic procedures constitute a compensable medical benefit which must be provided prior to MMI if such procedures have a "reasonable prospect" of diagnosing or defining the claimant's condition so as to suggest a course of further treatment. Section 8-42-101(l)(a), C.R.S. 2006; Villela v. Excel Corp., W.C. No. 4-400-281 (February 1, 2001); Hatch v. John H Garland Co., W.C. No. 4-368-712 (August 11, 2000). In Villela we affirmed the ALJ's determination that the claimant had not reached MMI, where he needed additional diagnostic procedures which had a reasonable prospect of defining a claimant's condition and suggesting further treatment. The issue in Villela was whether the respondents had overcome the Division-sponsored independent medical examination (DIME) physician's report that the claimant needed a diagnostic MRI and was therefore not at MMI. Similarly, in Hatch the issue was whether the DIME physician's recommendation for diagnostic procedures and his determination that the claimant was not at MMI had been overcome by clear and convincing evidence.
In contrast, in the present case there is apparently no dispute that the claimant was initially placed at MMI, and that determination was not challenged. Rather, the issue presented here is whether additional TTD benefits can be awarded based on the claimant's undergoing diagnostic testing after the claim has been closed, when there has otherwise been no showing that the claimant did not remain at MMI. We agree with the claimant's legal position that diagnostic procedures may be a compensable medical benefit prior to MMI, if they have a reasonable prospect of defining the claimant's condition and suggesting further treatment. However, we do not read either Villela or Hatch as compelling the conclusion that a claimant who undergoes diagnostic procedures after reaching MMI is, as a matter of law, no longer at MMI. In our opinion under the circumstances presented here the ALJ did not abuse his discretion in denying the claimant's petition to reopen. See Gonzales v. Industrial Claim Appeals Office, 905 P.2d 16 (Colo.App. 1995). (no treatment was reasonably available to improve claimant's condition and she was at maximum medical improvement)
The claimant also argues that the ALJ erred in relying on the testimony of Dr. Gray because he was neither an authorized treating physician, nor a DIME physician. However, the claimant does not argue that he was not correctly placed at MMI, or that an authorized treating physician or a DIME physician has stated that he was no longer at MMI. It is well established that the claimant has the burden of proof in seeking to reopen a claim. In our view the ALJ did not err or abuse his discretion in relying in part upon the opinion of Dr. Gray, who merely agreed with the physician who had originally placed the claimant at MMI. That Dr. Gray was neither authorized nor a DIME physician goes only to the weight of his testimony, which it was the ALJ's sole prerogative to evaluate. In addition, in ruling on a petition to reopen the ALJ is not required to give special weight to the opinion of a treating or DIME physician. See Cordova v. Industrial Claim Appeals Office, supra; see also Berg v. Indus. Claim Appeals Office, 128 P.3d 270 (Colo.App. 2005) (because the power to reopen is discretionary, there is an inherent protection against improper collateral attacks on a DIME determination of MMI).
IT IS THEREFORE ORDERED that the ALJ's order dated June 21, 2006 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________
Curt Kriksciun
___________________________________
Thomas Schrant
Charles Churchill, 2644 South Oceana Drive, Shelby, MI 49455
Travelers Indemnity Company, Ursula Gorkin, P.O. Box 173762, Denver, CO 80217-3762
The Frickey Law Firm, Janet L. Frickey, Esq., 940 Wadsworth Blvd., 4th Floor, Lakewood, CO 80214 (For Claimant)
Blackman Levine, Lawrence Blackman, Esq., 999 18th Street, Suite 1755, Denver, CO 80202 (For Respondents)