Opinion
W.C. No. 4-527-781.
December 30, 2005.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Klein (ALJ) dated June 13, 2005, which determined that the claimant's condition had worsened and which required them to pay medical benefits. We affirm.
Following a hearing on June 11, 2004, the ALJ determined the claimant sustained his burden of proof to reopen the claim due to a worsening of condition after maximum medical improvement (MMI) on May 20, 2003. The respondents appealed the order. However, we concluded the ALJ's order was interlocutory and, therefore, we dismissed the appeal without prejudice. The ALJ subsequently entered a new order dated June 13, 2005 which reopened the claim based upon a worsening of condition and awarded medical benefits. On July 26, 2005 the ALJ entered a corrected order requiring the respondents to pay for a cyst excision, trigger finger release surgery, and an arthrotomy of the right elbow.
The ALJ found that on August 27, 2001 the claimant sustained a compensable injury to his right arm, and subsequently underwent five surgical procedures. His primary authorized treating physician, Rosalinda Pineiro, M.D. stated that he reached maximum medical improvement (MMI) on May 20, 2003 with permanent impairment of the right arm. The respondents filed a final admission of liability and the claimant requested a Division independent medical examination (DIME). The DIME was performed by Richard Steig, M.D., who reported that the claimant reached MMI on May 20, 2003, with permanent impairment equal to 26 percent of the right arm. The ALJ further found that Dr. Steig testified by deposition on January 13, 2004, and stated that the claimant's condition had worsened, that he was in need of further medical treatment, that he was no longer at MMI, and that a ganglion cyst in his right hand was related to the work-related injury to his right arm. In March 2004, the claimant's surgeon, Dr. Duncan, stated that the claimant was no longer at MMI and recommended further diagnostic tests and treatment including possible surgery. The ALJ found that the cyst in the claimant's hand was related to his compensable condition and that his condition had worsened since the date of MMI, which was May 20, 2003. He further found that on account of the worsening the claimant was no longer at MMI. The ALJ granted the claimant's petition to reopen and ordered the respondents to provide the proposed surgery to excise the cyst.
On review the respondents contend that the ALJ misapplied the law in failing to require the claimant to prove a worsening of condition after December 5, 2003, which was the date of the DIME doctor's examination, instead of May 20, 2003, the date of MMI. The respondents argue that permitting the claimant to show a worsening after the date of MMI, but before the date of the DIME has the effect of "circumventing" the DIME process. They argue that, while the respondents are required to overcome a DIME report by clear and convincing evidence, the claimant can avoid that burden merely by alleging a worsening of his condition after the date of MMI. In order to prevent a claimant from evading the higher burden of proof, the respondents argue that § 8-42-107(8)(b), C.R.S. 2005 and § 8-43-303, C.R.S. 2005 must be interpreted to permit a showing of a worsening of condition only after the date that the issue of MMI closed. Here, because the issue of MMI was still open after May 20, 2003, the respondents argue that a showing of a worsening of the claimant's condition at that time is insufficient to support the later reopening under § 8-43-303. We disagree with the respondents' argument.
Section 8-43-303(1) authorizes reopening of a claim based upon the claimant's worsened condition. The claimant bears the burden of proof to establish the worsening of his physical or mental 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). 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 ALJ is vested with broad discretion in determining whether the claimant carried his burden of proof, and we must uphold the ALJ's determinations if supported by substantial evidence. § 8-43-301(8), C.R.S. 2005; 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).
We disagree with the respondents' argument that the claimant was required to present his argument concerning his worsened condition when a challenge to the DIME would have been appropriate. It is true that under § 8-42-107(8)(b)(III) a determination of MMI is binding unless timely challenged under the DIME process. However, the DIME process does not control whether the claimant's condition has worsened following the date of MMI, nor whether the worsening is causally related to the industrial injury. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). Here, the DIME physician merely determined that the claimant had reached MMI on May 20, 2003, and that finding did not preclude, either legally or factually, the possibility that the claimant's condition might worsen after that date. See e.g., Hague v. Duckwall-Alco Stores, Inc., W.C. No. 4-522-932 (April 19, 2005) (a finding of a worsened condition following MMI is not a constructive challenge to MMI that bypasses the DIME process).
The respondents' reliance on our order in Berg v. United Parcel Service, W.C. No. 4-527-878 (May 25, 2004) is misplaced. It is true that in Berg we ruled that the reopening statute did not permit a DIME physician's uncontested finding of MMI to be reopened based upon the ALJ's determination that it was mistaken. We reasoned that permitting such a procedure would invite litigation on the issue of MMI by making the DIME physician's determination of MMI subject to collateral attack under a lesser burden of proof. However, even assuming that Berg is applicable to this case, which is doubtful given that the original date of MMI has never been challenged, shortly after the respondents filed their brief the Colorado Court of Appeals set aside our order in that case. See Berg v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 04CA1130, August 11, 2005). The court rejected our rationale, noting that "there is an inherent protection against improper collateral attacks on a DIME determination of MMI. If a claimant files a petition to reopen in an attempt to circumvent the DIME process and gain the advantage of a lower burden of proof, the ALJ has authority to deny it." Id.
We do not understand the respondents to argue that the ALJ's factual findings are not supported by substantial evidence. In any event, those findings are amply supported by the testimony of the claimant and of the DIME physician. Because the ALJ's findings are supported by substantial evidence and because they support the order, which is also consistent with applicable law, we are not persuaded to disturb the order.
IT IS THEREFORE ORDERED that the ALJ's order dated June 13, 2005 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Cody Schlatter, Ault, CO, Select Wood Floors, Inc., Fort Collins, CO, Debbie LaDoux, Applied Risk Services, Omaha, NE, W.M. Busch, Jr., Esq., Loveland, CO, (For Claimant).
Keith E. Mottram, Esq., Denver, CO, (For Respondents).