Opinion
W.C. No. 4-572-772.
June 13, 2005.
FINAL ORDER
The respondents seek review of the order of Administrative Law Judge Harr (ALJ) dated January 10, 2005, which reopened the claimant's claim, determined the claimant was no longer at maximum medical improvement (MMI), and ordered the respondents to provide a neurological evaluation of the claimant. The respondents contend that because no specific benefits were sought, it was error to reopen the claim based upon a worsening of condition. The respondents also contend that the ALJ erred in ordering the respondents to provide a neurological examination of the claimant. We affirm the order reopening the claim and set aside the award of medical benefits.
The ALJ found that the claimant was injured in a compensable motor vehicle accident in March 2003. The respondents filed a final admission of liability (FAL) admitting for zero permanent disability benefits. The claimant did not object to the FAL and the claim closed.
The claimant subsequently alleged a worsening of condition and sought an order reopening the claim. The ALJ found the claimant's condition had worsened and granted the petition to reopen. The ALJ also ordered the respondents to provide a neurological evaluation of the claimant, as recommended by the authorized treating physician.
Relying on Richards v. Industrial Claim Appeals Office, 996 P.2d 756 (Colo.App. 2000)the respondents argue that the ALJ erred in reopening the claim, because no benefits could be awarded upon reopening. We disagree.
Section 8-43-303(1), C.R.S. 2004 authorizes reopening based on a change of condition. To reopen based on a change of condition the claimant must prove a change which can be causally connected to the original compensable injury. Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082 (Colo.App. 2002). Reopening is appropriate when the degree of the claimant's permanent impairment has changed, or where some additional temporary disability or medical benefits may be sought. Richards v. Industrial Claim Appeals Office, supra.
The question whether the claimant has proved a worsened condition causally related to the industrial injury is one of fact for resolution by the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). The authority to reopen is discretionary with the ALJ. Id. Therefore, we may not interfere with the ALJ's order absent a clear abuse of discretion. Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986). 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 record or by applicable law. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001).
In reviewing the ALJ's order under the abuse of discretion standard, we must uphold the ALJ's factual findings if they are supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2004. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Here, the ALJ's factual findings are amply supported by substantial evidence in the record. The treating physician, Douglas Bradley, M.D., testified that over the course of the first few months of the claimant's treatment he improved and was able to return to limited work. Depo. Douglas Bradley, M.D. at 5-6 (Nov. 18, 2004) (hereinafter Bradley Depo.) Dr. Bradley also testified that prior to releasing him to work the claimant "was really doing pretty well," and at the time of MMI "he was functioning very well." Bradley Depo. at 6,7. However, the doctor stated that in March 2004 the claimant returned with numerous other complaints, including increased neck pain, hip pain, knee pain, and headaches. Bradley Depo. at 35. In addition, the claimant testified at the hearing that his pain increased substantially between the time he was placed at MMI and the time he saw Dr. Bradley in March 2004. Tr. at 17.
Moreover, contrary to the respondents' argument, we do not read Richards v. Industrial Claim Appeals Office, supra, as precluding reopening under these circumstances. In Richards the court addressed the question whether a claim could be reopened to obtain additional temporary disability benefits because of a change in medications, when the claimant otherwise remained at MMI. The court held that the claim could not be reopened for that purpose, where the claimant continued to be at MMI. Thus, the court stated its holding that "[r]eopening a case is not warranted if, once reopened, no additional benefits may be awarded." Richards, 996 P.2d at 758 (emphasis added). In the present case there is no suggestion that "once reopened" all further benefits are precluded. Hence Richards is not a legal bar to reopening this claim.
The respondents also argue that the issue of medical benefits was not endorsed for hearing and that, consequently, the ALJ erred in ordering them to provide an evaluation. We agree.
The fundamental requirements of due process are notice and an opportunity to be heard. Due process contemplates that the parties will be apprised of the evidence to be considered and afforded a reasonable opportunity to present evidence and argument in support of their positions. Inherent in these requirements is the rule that a party will receive adequate notice of both the factual and legal bases of the claims and defenses to be litigated. See Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076, 1077 (Colo.App. 1990).
Here, the claimant's application for hearing endorsed only the issue of "Petition to Reopen Claim." We are unable to locate any motion or prehearing order in the record endorsing additional issues, nor has the claimant pointed out any such order. At the outset of the hearing the ALJ stated to the claimant that, "we're here on the issue of reopening . . ." to which the claimant's attorney replied, "That's correct." Tr. at 3. Further, the claimant submitted a position statement following the close of the hearing, in which the only relief he sought was that "the claim should be reopened." Under these circumstances, the respondents did not have sufficient notice that the ALJ would consider the claimant's entitlement to a neurological evaluation as recommended by Dr. Bradley. Accordingly, we set aside the order insofar as it ordered the respondents to pay for that evaluation.
IT IS THEREFORE ORDERED that the ALJ's order dated January 10, 2005 is set aside insofar as it ordered the respondents to provide a neurological evaluation of the claimant. In all other respects the ALJ's order is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ Kathy E. Dean ____________________________________ Curt Kriksciun Joseph Garcia, Pueblo, CO, Jeri Bolt, Navajo Express, Inc., Commerce City, CO, Liberty Mutual Insurance Company, Englewood, CO, Jack Withem, Liberty Mutual Insurance Company, Irving, TX, David Levy, Esq., Boulder, CO, (For Claimant).Raymond A. Melton, Esq., Denver, CO, (For Respondents).