Opinion
W.C. No. 4-595-827.
January 10, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) dated June 26, 2006 that denied the claimant's petition to reopen, denied the claim for temporary disability benefits and denied the claimant's request for medical benefits for his seizure disorder. We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant sustained an admitted work-related accident on October 28, 2003 which injured his head, neck, left shoulder and elbow. The claimant was off work from the day of the accident until January 9, 2006. Symptoms initially included headaches, pain in his neck, loss of movement in neck and left shoulder, and general stiffness in mid back. During his treatment, the claimant continued to have these symptoms except his left shoulder and nose fracture resolved. The claimant suffered depression caused by his inability to go to work as a truck driver, to obtain work or to do the things he used to be able to do. The claimant first had a seizure on August 24, 2005. During the time between the date of the accident and his first seizure the claimant had seen numerous health care providers, but never received any treatment or evaluation for seizures. Dr. McLaughlin placed the claimant at MMI on June 21, 2005 for his work injury and provided permanent medical impairment for the cervical spine and psychological problems. The claimant was given permanent restrictions by Dr. McLaughlin, which were the same restrictions that he has had since the date of maximum medical improvement (MMI) through the time of the hearing.
The ALJ found the opinion of Dr. McLaughlin on causation of the claimant's seizures was unreliable and not persuasive since it was based on unreliable information provided by the claimant. The ALJ found Dr. McLaughlin's opinions were inconsistent, not persuasive and not supported by the medical record.
The claimant was seen by Dr. Paz who opined that the work injury did not cause the claimant's seizure disorder. Dr. Paz opined that the most likely reason for the claimant's seizure on August 24, 2005 was alcohol abuse and that there was no history to support the cause of the claimant's other seizures, and so without more explanation he felt they were idiopathic. Dr. Paz opined that the claimant's suicide attempt was not related to the work injury and that the claimant's unrelated alcoholism lead to the suicide attempt and contributed to any deepening of his depression. Dr. Paz stated that the claimant's physical condition had not worsened since the date of MMI and he did not observe any objective evidence showing deterioration of the claimant's neck, left shoulder, left elbow or depression. The ALJ found the opinions Dr. Paz were supported by the record and more persuasive then the medical opinions, which were relied on by the claimant.
Dr. Burnbaum arrived at the conclusion that the claimant's seizures were probably caused by the head injury suffered on October 28,2003, based on the express assurance from the claimant that he had not drunk any alcohol since July 2005. The ALJ found this assumption on the part of Dr. Burnbaum was flawed since the claimant had been drinking excessive amounts of alcohol in August and September 2005. The ALJ found the opinion of Dr. Burnbaum was not reliable and not persuasive since it was based on inaccurate information provided by the claimant.
The ALJ found that the testimony of the claimant was contradicted by the claimant's own actions and statements, and was also contradicted by the medical record. The ALJ found the testimony of the claimant was not reliable and not credible.
The ALJ concluded that the claimant failed to prove by a preponderance of the evidence that his condition worsened such that the case should be reopened. The claimant had failed to prove by a preponderance of the evidence that he suffered a change in the condition of his original compensable injury and failed to prove he suffered a change in his physical or mental condition, which could be causally connected to the original injury. The ALJ found that the claimant's seizure disorder was not causally related to the claimant's work-related injury so he concluded that the respondents should not be required to pay for the medical expenses for the claimant's seizure disorder.
On appeal the claimant first argues that the ALJ's determination that the claimant's condition did not worsen is not supported by substantial evidence. We disagree.
Section 8-43-303(1), C.R.S. 2006, provides that an award may be reopened on the ground of, inter alia, a change in condition. See Ward v. Ward, 928 P.2d 739 (Colo.App. 1996) (noting that change in condition has been construed to mean a change in the physical condition of an injured worker). Reopening is appropriate when the degree of permanent disability has changed, or when additional medical or temporary disability benefits are warranted. Dorman v. B W Construction Co., 765 P.2d 1033 (Colo.App. 1988). Claimant has the burden of proving these requirements, see Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986), and in the absence of fraud or clear abuse of discretion, the ALJ's decision to reopen a claim is binding. Wilson v. Jim Snyder Drilling, 747 P.2d 647 (Colo. 1987); Richards v. Industrial Claim Appeals Office 996 P.2d 756 (Colo.App. 2000).
The decision to reopen the claim is discretionary with the ALJ, and we may not interfere with his determination absent a showing of fraud or clear abuse of discretion. Reopening is appropriate when the condition has worsened and degree of permanent disability has changed, or when additional medical or temporary disability benefits are warranted. See Richards v. Industrial Claim Appeals Office, supra. An abuse of discretion is not shown unless the ALJ's order is beyond the bounds of reason, as where it is unsupported by a substantial evidence or is contrary to law. See Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2000).
When evaluating the order we must uphold the ALJ's findings of fact if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2006. Substantial evidence is probative evidence supporting a reasonable belief in the existence of a fact without regard to contradictory or contrary inferences. Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996).
Further, we may not set aside a credibility finding unless the testimony of a particular witness, although direct and unequivocal, is "so overwhelmingly rebutted by hard, certain evidence directly contrary" that a fact finder would err as a matter of law in believing the witness. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997). Consequently, the ALJ's credibility determinations are binding except in extreme circumstances. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000).
Here, the ALJ found, with record support, that the claimant failed to prove by a preponderance of the evidence that his condition worsened such that his case should be reopened. The ALJ determined that the claimant failed to prove by a preponderance of the evidence that he suffered a change in the condition of his original compensable injury. The ALJ also found that the claimant failed to prove by a preponderance of the evidence that he suffered a change in his physical or mental condition, which can be causally connected to the original injury.
The ALJ's finding that the testimony of the claimant was not reliable and not credible is supported by the record. The claimant testified that he had not had a drink since July 2005 yet he was convicted of driving under the influence of alcohol in February, 2005 Tr. at 52, 54, 57. The claimant told Dr. Burnbaum that he had not consumed alcohol since July 2005. Tr. 58. However, when questioned regarding medical reports which contained histories of more recent alcohol intake the claimant conceded that he continued to drink after July 2005. Tr. 62-64. This is supported by Dr. Beinlich's report of September 11, 1005. Exhibit T at 448.
Dr. Paz testified that that the claimant's physical condition had not worsened since the date of MMI. Tr. at 97. It is true that there was medical testimony that contradicted Dr. Paz's opinions, in particular, the opinions expressed by Dr. Burnbaum and Dr. McLaughlin. However, the ALJ with record support found that the medical opinions relied upon by the claimant were flawed because they were based on inaccurate information provided by the claimant. Additionally we note that the weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
We have reviewed the record and the ALJ's findings of fact. The findings are sufficient to permit appellate review and the ALJ resolved conflicts in the evidence based upon his credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992). Although there was conflicting evidence produced at the hearing, the findings are amply supported by substantial evidence. Consequently, those findings must be upheld on review. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002). We perceive no basis upon which to set aside the ALJ's order.
The claimant next argues that the ALJ erred in his determination that the seizures were not related to the claimant's work-related injury.
In order to reopen the claim based on worsened condition the claimant is required to prove a change in his physical condition which can be causally connected to the original compensable injury. Richards v. Industrial Claim Appeals Office, supra; Chavez v. Industrial Commission, 714 P.2d 1328 (Colo.App. 1985). The question of whether the claimant proved causation is one of fact for determination by the ALJ. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000).
The claimant had the burden of proof to show that any worsening of condition was related to the industrial injury, and the ALJ was free to consider all relevant evidence pertaining to this issue. See Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001).
The claimant's arguments notwithstanding, there is substantial evidence in the testimony of the respondents' witnesses to support the ALJ's finding that the claimant failed to sustain his burden to prove a causal connection between his seizures and his work-related injury. Dr. Paz's testimony fully supports the ALJ's findings and the conclusion that the claimant failed to carry the burden of proof. First, Dr. Paz testified that that the work injury did not cause the claimant's seizure disorder Tr. at 92. Further, Dr. Paz testified based on his review of the claimant's medical records, the work accident involved facial trauma with no loss of consciousness and the claimant did not show signs of a closed injury until August 2005. Tr. at 93-94. After extensive review of the medical literature Dr. Paz cold not find where there was a seizure more than a year out if there was not a seizure immediately following the initial event. Tr. at 94. Under these circumstances the ALJ acted well within his discretion to credit Dr. Paz's opinions on the question of causation.
Consequently, the existence of other evidence including the opinions of Dr. Mc Laughlin and Dr. Burnbaum that, if credited, might support a contrary determination does not afford us grounds to grant appellate relief. See Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d 28 (1963); Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981) (expert medical evidence not dispositive of causation).
IT IS THEREFORE ORDERED that the ALJ's order dated June 26, 2006 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________
Thomas Schrant
Cody Wells, 534 North 17th Street, Grand Junction, CO, T.D. Production, Workers Compensation Manager, 747 Buckhorn Drive, Rifle, CO, Pinnacol Assurance, Harvey D. Flewelling, Esq., 7501 E. Lowry Blvd., Denver, CO, Killian, Guthro Jensen, P.C., Joanna C. Jensen, Esq., 225 North 5th Street, Suite 1010, Grand Junction, CO, (For Claimant)
Ruegsegger, Simons, Smith Stern, Jeff Francis, Esq., 743 Horizon Court, Suite 102, Grand Junction, CO, (For Respondents)