Opinion
W.C. No. 4-153-150.
October 20, 2006.
FINAL ORDER
The claimant seeks review of an order of Chief Administrative Law Judge Williams (ALJ) dated May 25, 2006 that denied the claimant's petition to reopen. We affirm.
A hearing was held on the issue of whether the claimant's petition to reopen should be granted on the grounds that her condition had worsened. Following the hearing, the ALJ entered factual findings that may be summarized as follows. On March 2, 1992, the claimant ruptured her left Achilles tendon in a compensable accident. The claimant underwent surgery and was later diagnosed with reflex sympathetic dystrophy, which is currently referred to as chronic regional pain syndrome (CRPS). On April 14, 2002, the respondents filed a final admission of liability denying liability for permanent total disability benefits. The claimant obtained a hearing on that issue and an ALJ entered an order denying statutory penalties and permanent total disability benefits, but awarding ongoing maintenance medical benefits. On January 20, 2004, the claimant filed a petition to reopen the claim on the ground that her condition had worsened. The ALJ expressly rejected the claimant's testimony concerning her pain and other symptoms as not credible.
The ALJ also weighed the competing medical evidence presented by the parties on the issue of the claimant's alleged worsening of her condition. He noted that Dr. Feler, who had treated the claimant since 1998, opined that the claimant's CRPS had spread from her left leg to her arms, and that the doctor recommended the use of a cervical spinal cord stimulator. The ALJ found that the claimant had been undergoing treatment through the use of a thoracic spinal cord stimulator, which at the time of the hearing was inoperable. Dr. Feler recommended the cervical stimulator to replace the thoracic stimulator and to treat both the CRPS in the claimant's legs and in her arms. However, the ALJ found that the cervical stimulator was not reasonable and necessary if, as the ALJ ultimately found, the CRPS had not spread to the claimant's arms. He also noted that Dr. Feler was not an expert in CRPS, and the ALJ concluded that the doctor's failure to perform any objective testing and his failure to document any objective signs of CRPS in the claimant's arms "undermin[ed] his diagnosis." The ALJ further found that the claimant underwent an independent medical examination performed by Dr. Ring, who recommended further diagnostic testing. Dr. Ring referred the claimant to Dr. Conwell for infrared stress thermography and to Dr. Schakaraschwili for other diagnostic tests. The latter examined the claimant and performed a number of diagnostic tests, which disclosed a "low probability" of CRPS in the upper extremities. Dr. Schakaraschwili's examination showed no clinical signs of CRPS. Dr. Conwell performed the thermography, the results of which were "inconsistent with CRPS." The ALJ expressly credited as persuasive the opinions of Dr. Ring, Dr. Conwell and Dr. Schakaraschwili that the claimant's CRPS has not spread to her upper extremities.
Based upon his factual findings and his weighing of the evidence, the ALJ concluded that the claimant failed to prove that her condition resulting from the compensable injury had worsened. Accordingly, he denied the petition to reopen. However, based upon his factual finding that the claimant's thoracic spinal cord stimulator had malfunctioned, the ALJ ordered the respondents to repair that apparatus.
The claimant appealed and argues that, even assuming that her CRPS has not spread to her upper extremities, the finding that the spinal stimulator was broken compelled the conclusion that her condition had worsened. We are unpersuaded that the ALJ abused his discretion.
Section 8-43-303, C.R.S. 2006 permits any "award" to be reopened on the grounds of error, mistake, or a change in the claimant's condition. The intent of the reopening statute is to provide a remedy to claimants who are entitled to awards of medical or disability benefits. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). However, the authority to reopen is permissive, and whether to reopen a prior award when the statutory criteria have been met is left to the sound discretion of the ALJ. Berg v. Industrial Claim Appeals Office, 128 P.3d 270 (Colo.App. 2005). The claimant has the burden of proof in seeking to reopen a claim. Richards v. Industrial Claim Appeals Office, 996 P.2d 776 (Colo.App. 2000). A change of condition within the meaning of § 8-43-303 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 traced to the original compensable injury." Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082 (Colo.App. 2002) quoting Chavez v. Industrial Commission, 714 P.2d 1328, 1330 (Colo.App. 1985). See also Ward v. Ward, 928 P.2d 739 (Colo.App. 1996) (noting that a change in condition has been construed to mean a change in the physical condition of an injured worker).
Because the authority to reopen a claim under § 8-43-303 is generally discretionary with the ALJ, we may not interfere with the order unless there is fraud or a clear abuse of that 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).
Moreover, we are bound by the factual findings underlying the ALJ's determination if those factual findings are supported by substantial evidence. Section 8-43-301(8), C.R.S. 2006; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Substantial evidence is that quantum of proof which would support a reasonable belief in the existence of a fact without regard to contradictory evidence and conflicting inferences. Ackerman v. Hilton's Mechanical Men, Inc., 914 P.d. 524 (Colo.App. 1996). Under this standard of review, it is the ALJ's sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. We may not substitute our judgment for that of the ALJ unless the testimony the ALJ found persuasive is rebutted by such hard, certain evidence that it would be error as a matter of law to credit the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). Where conflicting expert opinion is presented, it is for the ALJ as fact-finder to resolve the conflict. Rockwell International v. Turnbull, 802 P.d. 1182 (Colo.App. 1990).
Here, we perceive no abuse of discretion. As we understand the claimant's argument, she concedes that the question whether her CRPS had spread to her upper extremities is a factual one, and she recognizes that the ALJ resolved the conflicting medical evidence against her. She apparently further concedes that the record contains ample evidence supporting the ALJ's factual findings that her CRPS had not spread from its original location in her foot and leg. The claimant argues, however, that she should be entitled to temporary total disability benefits in any event during the time when her thoracic spinal stimulator was malfunctioning. In our view, the record does not compel this conclusion as a matter of law.
The claimant's argument appears to depend upon the assumption that the malfunctioning stimulator necessarily resulted in a worsening of her condition, warranting reopening of the claim. Stated differently, the argument is that if a medical treatment intended to maintain the claimant's condition at maximum medical improvement temporarily ceases to function, the claim must automatically and without further proof be reopened. However, that conclusion does not follow. Whenever the effectiveness of a particular medical treatment is lessened or impaired, or the treatment is even discontinued, factual questions remain concerning whether the claimant's condition is thereby "worsened." Merely because a medical apparatus is in need of repair, adjustment, or replacement does not, without more, compel the conclusion that the claim must be reopened for the delivery of further benefits or compensation. The question of whether the claimant's underlying condition becomes worse as a result of the change in medical treatment remains a factual one, and the burden of proof remains on the claimant. As we read the ALJ's order here, he was unpersuaded that her condition had worsened so as to require reopening. The ALJ expressly found that "[t]he Claimant is not helpful or clear in her reports of pain" and he rejected her testimony as neither credible nor persuasive. Findings of Fact, Conclusions of Law and Order at 2, ¶ 3. Hence, although the ALJ ordered the stimulator repaired, he did not find that its mechanical failure worsened the claimant's underlying condition or required reopening of her claim.
Further, we reject the claimant's argument that further findings are necessary on the issue whether the malfunctioning of the thoracic spinal stimulator warranted payment of temporary total disability benefits. It is true that the ALJ did not enter factual findings specifically addressing that issue. However, that was not the theory advanced by the claimant either prior to or at the hearing. At the commencement of the hearing, the claimant's attorney stated that "[i]t is our position that since November of 2003 Ms. Williamson has had a spreading of her RSD . . ." into her trunk and upper extremities. Tr. at 8. He then noted that the thoracic stimulator was "not working," and that "we want that fixed." Tr. at 8. However, he did not attribute the claimant's worsened condition to the malfunctioning thoracic stimulator. Rather, he asserted that the respondents should be liable for the trial of the cervical stimulator that Dr. Feler recommended as an alternative to the repair of the thoracic stimulator. Tr. at 8. The claimant's attorney then summarized that "[w]e're looking for authorization from Your Honor for the trial of the cervical stimulator to see if that will resist the spread of the CRPS and we're requesting temporary disability benefits from January 20th of 2004 forward until such time she reaches maximum medical improvement from the care and treatment that Dr. Feler has suggested that she needs." Tr. at 9.
The respondents' attorney then replied that their liability for the thoracic stimulator had never been disputed, and that until then the claimant had not requested that it be repaired. Tr. at 11-12. The attorney clarified that the issue presented for the hearing was the claimant's alleged worsening of her condition based upon the spread of her CRPS into her upper body, and that "there's really no debate . . . about the spinal cord stimulator in her lower extremities." Tr. at 11-12. The parties then proceeded to opening statements, in which the claimant's attorney reiterated his request for a trial of the cervical stimulator, but did not assert any theory of the claimant's worsened condition on account of the malfunctioning of the thoracic stimulator.
The evidentiary portion of the hearing was then conducted, following which the parties presented closing argument. The claimant's attorney again asserted that the relief being requested was a trial of the cervical stimulator recommended by Dr. Feler, because of the spread of the claimant's CRPS. Tr. at 283. The ALJ then summarized that, in his view, the issue was whether the claimant's cervical condition was related to her compensable injury and whether her condition was "spreading." Tr. at 292. He also notified the parties that that was the issue he intended to address unless the post-hearing written arguments persuaded him otherwise. Tr. at 292. The ALJ then inquired of the parties whether he was "missing" anything, and the claimant's counsel repeated that the thoracic stimulator was broken. Tr. at 292. However, again, claimant's counsel did not assert any theory that the claimant's condition was thereby worse; rather, he merely stated to the ALJ that "I don't know what your position is as far as getting that fixed." The ALJ instructed the parties to discuss that issue and attempt to arrive at a stipulation, since Grover medical benefits were ordered and the ALJ professed not to understand "why a battery wouldn't be put in the stimulator." Tr. at 293. He again inquired of the claimant's counsel whether he had "missed something" and the latter responded, "No." Tr. at 293.
It was not until the claimant's written argument, submitted several weeks after the hearing, that she explicitly argued that she was entitled to temporary total disability benefits for the period during which her thoracic stimulator was malfunctioning. Under these circumstances, assuming the doubtful proposition that this theory was effectively raised below, the ALJ implicitly rejected the argument that the malfunctioning stimulator was evidence of the claimant's worsened condition and warranted an award of temporary total disability benefits. The ALJ is presumed to have considered the entire record and to have reviewed the arguments of counsel. Cf. Dravo Corp. v. Industrial Commission, 40 Colo. App. 57, 569 P.2d 345 (1977). However, the ALJ is not held to crystalline standard in articulating his findings of fact, and is not required to address theories or evidence implicitly rejected as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). We presume that the ALJ considered the claimant's argument regarding the stimulator and rejected it as unpersuasive. As noted previously, because the ALJ's factual findings are supported by substantial evidence and because he correctly applied the relevant law, we perceive no basis on which to disturb his order.
IT IS THEREFORE ORDERED that the ALJ's order dated May 25, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Dona Halsey
____________________________________ Curt Kriksciun
Iris Williamson, Memphis, TN, Ball Corporation, Boulder, CO, Specialty Risk Services, Denver, CO, Steven J. Picardi, Esq., Arvada, CO, (For Respondents).
Robert W. Turner, Esq., Denver, CO, (For Claimant).