Opinion
W.C. No. 4-146-034
August 6, 1998
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Friend (ALJ), which denied his petition to reopen. The claimant argues that the evidence compelled the ALJ to find a causal relationship between the industrial injury and the claimant's subsequent need for knee surgery. We affirm.
The claimant sustained a compensable knee injury on August 3, 1992. The claimant's treating physician, Dr. Lindberg, performed an anterior cruciate ligament (ACL) reconstruction and a partial lateral meniscectomy on August 20, 1992. The claimant reached maximum medical improvement (MMI) in October 1993 with a fifteen percent impairment of the lower extremity. No future treatment was recommended at that time. A final admission of liability was then filed.
On March 29, 1997, the claimant slipped on a grassy slope while walking from his home to his car. The claimant's new treating physician, Dr. Halbrecht, opined that the claimant has a "severely unstable knee with a disruption of a previously placed ACL graft and a question of lateral femoral condyle defect and possible lateral meniscus tear of the left knee." Dr. Halbrecht opined that all of these conditions are "related to [the claimant's] previous injury" because the ACL graft failed. (Halbrecht report, May 15, 1997). Further, Dr. Halbrecht recommends surgical repair of the claimant's knee condition.
The claimant was examined by Dr. Lindberg on August 19, 1997. Dr. Lindberg opined that the March 29 incident constituted a "new injury" which damaged the previously stable ACL graft. Dr. Lindberg also testified that the claimant may have a tear of the lateral meniscus and damage to the lateral femoral condyle stemming from the 1992 surgery. However, Dr. Lindberg stated that it is only "hypothetically possible" that the claimant has a meniscal tear and damage to the femoral condyle, and this cannot be known until arthroscopic surgery is performed. (Lindberg depo. pp. 16-17, 22). Dr. Lindberg also stated that if the claimant has damage to the lateral meniscus and femoral condyle it will be necessary to repair the damage in order to maintain stability of the ACL reconstruction. (Lindberg depo. pp. 22-23).
The ALJ found that the March 29, 1997, incident constituted an "efficient intervening cause" of the "re-tear of the claimant's ACL." The ALJ also rejected the argument that the respondents are liable for the recommended knee surgery because the alleged mensical tear and defect of the femoral condyle represent a "worsened condition" stemming from the 1992 injury. The ALJ agreed that if a meniscal tear and femoral condyle defect are present they were caused by the 1992 injury. However, he was unpersuaded that these conditions actually exist. Thus, the ALJ denied the claimant's petition to reopen for additional medical treatment and disability benefits.
I.
On review, the claimant contends that the respondents are obliged to pay for the knee surgery because it constitutes diagnostic treatment reasonably necessary to cure and relieve the effects of the 1992 industrial injury. The claimant argues that, even if the need for the ACL repair is not related to the 1997 incident, surgery is necessary to determine whether he has a meniscal tear and femoral condyle defect stemming from the 1992 industrial injury. In support, the claimant cites Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949). We disagree with the claimant's argument.
Generally, § 8-43-303(1), C.R.S. 1997, authorizes an ALJ to reopen a claim based on a worsened condition. A change of condition sufficient to justify reopening refers "to a change in the condition of the original compensable injury or to a change in claimant's physical or mental condition which can be causally connected to the original compensable injury." Chavez v. Industrial Commission, 714 P.2d 1328, 1330 (Colo.App. 1985). The claimant bears the burden of proof to establish a causal connection between the industrial injury and the worsened condition requiring additional treatment. See Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997).
The question of whether the claimant carried his burden of proof to establish the requisite causal relationship is one of fact for determination by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Further, the granting or denial of a petition to reopen is discretionary with the ALJ, and we may not interfere with his order unless an abuse has been shown. Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986).
Because issues of causation are factual in nature, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. This standard requires us to defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. In this regard, it is for the ALJ to assess the weight of expert medical evidence. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Here, we understand the ALJ was unpersuaded that any worsening of the claimant's condition was causally related to the 1992 injury. The ALJ recognized that some medical evidence in the record, including the opinions of Dr. Lindberg and Dr. Halbrecht, might support a finding that the claimant has a tear of the lateral meniscus or femoral condyle defect which is related to the 1992 injury. However, the ALJ was unpersuaded by this evidence because it was couched in speculative terms, and because the claimant had few problems with the knee before the March 1997 incident. Under these circumstances, we cannot say the ALJ abused his discretion in finding that the claimant failed to prove a worsened condition causally related to the 1992 industrial injury.
Merriman v. Industrial Commission is not authority to the contrary. In Merriman, it was undisputed that the claimant sustained a compensable injury. Thus, diagnostic surgery prompted by the industrial injury was compensable, even though the surgery revealed that the source of the claimant's ongoing problems was a preexisting, non-industrial disease. The Merriman court expressly stated that the record supported the finding "that the operation was necessary as a result of the accident."
Here, the respondents contested the claimant's assertion that any worsened condition was causally related to the industrial injury, and the ALJ found that the claimant failed to prove the requisite causal relationship. Thus, in contrast to the situation in Merriman, the claimant did not carry his initial burden to prove the existence of a compensable worsened condition, and the analogy to Merriman is inapposite.
II.
The claimant next contends that surgery to repair the ACL is compensable because it is necessary to treat the claimant's meniscus tear and lateral femoral condyle defect. The claimant relies on Dr. Lindberg's testimony that it is necessary to repair all of the claimant's problems in order to insure stability of the knee. We are not persuaded.
The claimant cites Flynn v. M.A.G. Mining, Inc., W.C. No. 4-256-973 (June 6, 1997), as authority for the proposition that treatment of non-work-related conditions is compensable when such treatment is necessary to cure and relieve the effects of the industrial injury. Here, however, the ALJ was not persuaded that the claimant is suffering from any effects of the 1992 industrial injury. Consequently, the holding in Flynn does not apply.
In reaching this result, we do not mean to suggest that the claimant may not file a new petition to reopen if additional evidence shows that he has a meniscus tear or femoral condyle defect. We hold only that the evidence supports the ALJ's finding that the claimant failed to carry his burden of proof to show a worsening of condition causally related to the 1992 industrial injury.
IT IS THEREFORE ORDERED that the ALJ's order dated November 20, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed August 6, 1998 to the following parties:
Martin Rodriguez, 1817 11th St., Redding, CA 96001
Environmental Chemical Corporation, Attn: Joyce Jones, 999 18th St., #2350, Denver, CO 80202
Environmental Chemical Corporation, Attn: Glenn Sweatt, 1240 Bay Shore Hwy., #300, Burlington, CA 94010
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority — Interagency Mail
Janet L. Frickey, Esq., 940 Wadsworth Blvd., 4th floor, Lakewood, CO 80215 (For Claimant)
By: _______________________