W.C. Nos. 4-813-651 4-620-383.Industrial Claim Appeals Office.
May 3, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Krumreich (ALJ) dated October 26, 2010 that denied the claimant’s petition to reopen his closed claim and denied the claimant benefits on the ground that the claimant had not sustained a new and compensable injury to his right shoulder. We affirm.
This matter proceeded to hearing to determine whether the W.C. NO. 4-620-383 should be reopened due to a change in the claimant’s medical condition, and whether the claimant sustained a new injury or occupational disease involving his right shoulder and receive medical benefits.
Several of the ALJ’s findings of fact are summarized as follows. On June 14, 2004 the claimant sustained a compensable injury involving his back. The claimant’s job duties at the time of his injury involved loading a machine with paper and offloading the finished product from a conveyor to a pallet. The claimant was injured lifting sheets of corrugated paper. A physician placed the claimant at maximum medical improvement on July 9, 2004 without permanent impairment and the respondents closed the claim by filing a corresponding final admission of liability on July 19, 2004.
The claimant continued working for the employer until August 11, 2009 when he left work due to heart problems. On November 10, 2009 the claimant sought an evaluation for pain in his right shoulder at University Hospital. The claimant had a torn
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rotator cuff in his right shoulder area. The claimant advised Dr. Chythlook that he had increasing right shoulder pain since June 2007. The claimant was eventually evaluated by Dr. Olsen in September 2010. The claimant believed his injury resulted from lifting and from performing repetitious work. The claimant would lift sheets of paper weighing between 20 and 50 pounds and feed them into a machine at about the height of a counter. He would then move to the other side of the machine, remove the cut product from a conveyor, which was a little lower than the height of a counter. The claimant would stack the product on the floor. Dr. Olsen noted that the claimant’s job did not indicate any overhead lifting and he opined that the claimant’s job was not highly repetitive and did not involve extensive overhead work. Dr. Olsen further opined that the claimant’s right rotator cuff condition was not an occupational disease or related to his working conditions.
According to Dr. Olsen, the claimant’s right shoulder rotator cuff injury was age related and the ALJ credited his opinion. The ALJ found that the claimant failed to establish a worsening in condition from his 2004 work injury and, also, that the claimant failed to establish that his right shoulder rotator cuff tear and injury resulted from his work conditions. The ALJ therefore denied the claimant’s petition to reopen and denied the new claim for compensation and medical benefits.
In support of his appeal the claimant reviews the requirements of his job duties and disputes Dr. Olsen’s opinion that his shoulder condition resulted from age, rather than from his working conditions. The claimant also indicates that he sought hearing transcripts, but the ALJ found that no transcript was timely filed and he therefore struck the claimant’s request for a transcript and issued a briefing schedule. In addition, the claimant provides what appears to be additional documentation not presented to the ALJ. Our review is restricted to the record before the ALJ, and factual assertions made in these additional filings may not substitute for evidence which is not in the record. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo. App. 1995); Lewis v. Scientific Supply Co. 897 P.2d 905 (Colo. App. 1995); Voisinet v. Industrial Claim Appeals Office, 757 P.2d 171 Colo. App. 1988).
Petition to Reopen
Section 8-43-303, C.R.S., permits a claim to be reopened based upon “a change in condition.” The power to reopen under the provisions of § 8 43-303 is permissive and left to the sound discretion of the ALJ. Consequently, we may not interfere with the ALJ’s decision unless the record reveals fraud or a clear abuse of discretion. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo. App. 1996); Osborne v. Industrial Commission, 725 P.2d 63 (Colo. App. 1986). An abuse of discretion is not shown unless the ALJ’s order is beyond the bounds of reason, as where it is contrary to
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the law or not supported by the evidence. Rosenberg v. Board of Education of School District No. 1, 710 P.2d 1095 (Colo. 1985).
Furthermore, when considering the sufficiency of the evidence, we must uphold the ALJ’s factual findings if supported by substantial evidence. Section 8-43-301(8), C.R.S. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). We specifically note that we may not interfere with the ALJ’s decision to credit the testimony of a witness unless, in extreme circumstances, the testimony is overwhelmingly rebutted by such hard, certain evidence the ALJ would err as a matter of law in crediting it. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo. App. 2000).
The ALJ recognized that the claimant suffered from a torn rotator cuff. However, he was not persuaded that the claimant’s condition was related to the claimant’s working conditions. The ALJ observed that the claimant’s work-related injury in 2004 was primarily to his mid or lower back. The ALJ found no indication that the claimant had symptoms or findings of right shoulder symptoms from his 2004 injury. Instead, the claimant’s history of progressive right shoulder pain starting in 2007 and medical records from the 2004 injury failed to establish that the claimant’s right shoulder condition is causally related to his 2004 work injury that changed or worsened. There is substantial evidence in the record to support the ALJ’s findings and determinations. For example, the ALJ referred to Dr. Chythlook’s report and opinion. Exhibit D at 15 (Dr. Chythlook states the claimant reported increasing pain in right shoulder “since 6/07” and opines that injury “not considered to be 50% probability as being work related”). We therefore conclude that the ALJ did not abuse his discretion by denying the claimant’s petition to reopen.
New claim for compensability
The ALJ considered the claimant’s assertion that he had sustained an occupational disease. The claimant sustains an occupational disease when the injury is the incident of the work, or a result of exposure occasioned by the nature of the work and does not come from a hazard to which the worker would have been equally exposed outside of the employment. Section 8-40-201(14), C.R.S. The claimant had the burden to prove the alleged occupational disease was caused, aggravated or accelerated by the claimant’s employment or working conditions. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo. App. 1999). The determination of whether there is a sufficient causal relationship between the claimant’s employment and the injury or disease is one of fact, which the ALJ must determine based on the totality of the circumstances. In Re Question Submitted by the United States Court of Appeals, 759 P.2d 17 (Colo. 1988);
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Moorhead Machinery Boiler Co. v. Del Valle, 934 P.2d 861 (Colo. App. 1996).
Because the issue of causation is factual in nature, we must uphold the ALJ’s pertinent findings if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. This standard of review requires deference to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra. In particular, the weight and credibility to be assigned expert medical opinion is a matter within the fact-finding authority of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002).
There is substantial evidence to support the ALJ’s findings and his determination that the claimant did not carry his burden to show that his right shoulder condition is compensable. The ALJ was persuaded by Dr. Olsen’s opinions and determined that the claimant failed to establish that his right shoulder injury is a compensable occupational disease. Exhibit C at 12-13 (claimant “does not describe any type of overhead lifting” and his “job does not fit the definition of highly repetitive, nor . . involve extensive overhead work” and the claimant’s “right shoulder rotator cuff is not an occupationally-related disease”). We find no basis for disturbing the ALJ’s denial of the new claim for benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 26, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Curt Kriksciun
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FRANK HAMILTON, 5083 URSULA STREET, DENVER, CO, 80239 (Claimant)
DELINE BOX COMPANY, Attn: CONNIE TAYLOR, 3700 LIMA, DENVER, CO, 80239 (Employer)
AMERICAN COMPENSATION INSURANCE/RTW COLORADO, INC., Attn: TODD SIME, P O BOX 390327, MINNEAPOLIS, MN, 55439-0327 (Insurer)
LAW OFFICE OF O’TOOLE SBARBARO, PC, Attn: NEIL D. O’TOOLE, ESQ., 226 W. 12TH AVENUE, DENVER, CO, 80204-3625 (For Claimant)
RITSEMA LYON, PC, Attn: SEAN KNIGHT, ESQ., 999 18TH STREET, SUITE 3100, DENVER, CO, 80202 (For Respondents)
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