Opinion
W.C. No. 4-624-521.
November 19, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated June 23, 2008 that denied and dismissed her petition to reopen her claim. We affirm.
The claimant worked as an accountant for the respondent employer at the time she sustained injuries to her upper extremities, as well as to her trapezius and scapular muscles. The onset of her condition was December 30, 2000, but the claimant's treating physician did not place her at maximum medical improvement until October 26, 2005. The respondent insurer filed a final admission of liability on November 1, 2005. The claimant did not object to the final admission and her claim closed. The claimant asserted at hearing that she sustained an injury to her neck, or to the cervical area of her spine, due to a functional capacity evaluation (FCE) conducted on September 1, 2005.
The ALJ considered various medical reports, together with the testimony of both the claimant and her treating physician, Dr. Caton. The ALJ determined that the claimant failed to establish a basis for reopening her claim. The ALJ found the history of the claimant's symptoms as reflected in medical reports near the time of the FCE "most reliable in showing it improbable claimant aggravated or injured her cervical spine during the FCE." The ALJ also noted that Dr. Caton modified her view of the matter and ultimately opined that the claimant "likely aggravated her cervical disk to an insubstantial degree during the FCE." The ALJ did not find the claimant's testimony about the cause of her cervical condition to be persuasive. Neither did the ALJ find any persuasive evidence that the claimant's claim should be reopened due to fraud or mistake. The ALJ denied the claimant's petition to reopen her claim.
Section 8-43-303(1), C.R.S. 2008 authorizes reopening of a claim based upon the claimant's "change in condition." The claimant bears the burden of proof to establish the change of her physical condition, which must be causally related to the industrial injury. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997); Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). Furthermore, the authority to reopen a claim under 8-43-303(1), C.R.S. 2008, is generally discretionary with the ALJ. We may not interfere with the order unless there is fraud or a clear abuse of discretion. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996). An abuse of discretion is not shown unless the order is beyond the bounds of reason, as where it is unsupported by the law or contrary to the evidence. See Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
Thus, the ALJ is vested with broad discretion in determining whether the claimant carried her burden of proof, and we must uphold the ALJ's determinations if supported by substantial evidence. § 8-43-301(8), C.R.S. 2008; Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082 (Colo.App. 2002). Substantial evidence is that quantum of probative evidence which supports a reasonable belief in the existence of a fact without regard to evidence supporting conflicting or contrary inferences. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). When applying the substantial evidence test we must defer to the ALJ's credibility determination, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
The claimant's arguments on appeal are contained in her petition to review. Cf. Ortiz v. Industrial Comm'n, 734 P.2d 642, 643 (Colo.App. 1986) (failure to file brief in support of petition to review not a jurisdictional defect). The claimant first notes that her preexisting cervical problems reviewed by the ALJ did not prevent her from working. However, the issue presented to the ALJ was whether the claimant sustained a cervical injury because of the FCE that worsened her condition and warranted the reopening of her claim. See § 8-43-303(1), C.R.S. 2008; Valdez v. United Parcel Service, 728 P.2d 340 (Colo.App. 1986) (reopening requires proof of a causal relationship between the industrial injury and the worsened condition). Reopening is appropriate where the degree of permanent disability has changed or where the claimant is entitled to additional medical or temporary disability benefits. Dorman v. B W Construction Co., 765 P.2d 1033 (Colo.App. 1988). The claimant's ability to work may be a factor to be considered, but is not dispositive of whether to reopen the claim based on a worsening of condition. Cf. Ortiz v. Charles J. Murphy Co., 964 P.2d 595, 597 (Colo.App. 1998) (for determining time to reopen occupational disease claim, date of injury, or onset of disability, occurs when disease impairs claimant's ability to perform regular work or renders claimant incapable of returning to work except in restricted capacity).
The claimant also argues that objective indications of changes in the claimant's physical condition after the FCE, as indicated in radiological findings, support the reopening of her claim. The record includes reports from Dr. Caton. In a report dated September 21, 2005, Dr. Caton notes a "[degenerative C6 on x-ray, which is not work related." In a report dated April 20, 2006, Dr. Caton refers to an MRI on December 1, 2005, which the claimant "states showed some herniation in her discs" and "believes that the herniated disc is associated with the functional capacity evaluation." Exhibit 1. On the other hand, an MRI report dated December 1, 2005 indicates "[m]oderate degenerative disc disease at C6-7. . . ."Exhibit EE. According to the claimant, the record is devoid of testimony attributing the cause of objective cervical findings to something other than the FCE. The claimant further asserts that these radiological changes render the credibility of the claimant's testimony immaterial.
Even assuming, arguendo, that all medical tests indicated a degeneration of the claimant's cervical region of her spine, the ALJ was not compelled to credit such evidence. See Casa Bonita Restaurant v. Industrial Comm'n, 624 P.2d 1340 (Colo.App. 1981) (uncontroverted medical evidence not binding on the ALJ). In any event, objective changes in the claimant's medical condition do not establish the industrial causation of the condition as a matter of law. Instead, proof of causation is generally a threshold issue, which the claimant must establish by a preponderance of the evidence. The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ. Section 8-43-201; Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000).
Moreover, the ALJ did not rely merely on the weight to be afforded to the claimant's testimony in resolving this matter. The ALJ found that Dr. Caton changed her opinion to indicate that the FCE resulted in only aggravating the claimant's cervical disk "to an insubstantial degree." Dr. Caton modified her opinion "[a]fter reviewing the claimant's prior history of cervical symptoms and complaints." Findings of Fact, Conclusions of Law, and Order at 5, ¶ 11. See Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990) (it is for the ALJ to determine the weight and credibility of expert medical evidence). The ALJ also gave greater weight to the claimant's history of symptoms as documented nearer the time of the FCE.
The claimant essentially requests that this matter be resolved by drawing other inferences from the evidence. This we cannot do. See Wilson v. Industrial Claim Appeals Office, 81 P.3d at 1119 (reviewing body may not substitute inference contrary to inference made by ALJ that is supported by evidence); see also, Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941) (ALJ considered to possess expert knowledge rendering ALJ competent to evaluate medical evidence independently, and draw his own inferences concerning cause of claimant's condition). The ALJ determined, with record support, that the claimant failed to establish that her condition worsened as a result of her FCE. We find no basis for disturbing the ALJ's determination.
IT IS THEREFORE ORDERED that the ALJ's order dated June 23, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_____________________ John D. Baird
_____________________ Thomas Schrant
GRAEBEL MOVERS, Attn: RICHARD PAYNE, AURORA, CO, (Employer).
LIBERTY MUTUAL INSURANCE COMPANY, Attn: MICHAEL KETTER, IRVING, TX, (Insurer).
IRWIN BOESEN, Attn: LANE N COHEN, ESQ., DENVER, CO, (For Claimant).
LAW OFFICES OF RICHARD P MYERS, Attn: APRIL D MOORE, ESQ., DENVER, CO, (For Respondents).