W.C. No. 4-714-721.Industrial Claim Appeals Office.
August 5, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated April 22, 2010, that denied and dismissed the claimant’s request to reopen his Workers’ Compensation claim. We affirm.
The claimant worked for the employer as a baggage handler. On December 25, 2006 he suffered a compensable left foot injury when he slipped on an icy surface and twisted his left foot. Dr. Dworkin diagnosed acute plantar fasciitis secondary to the claimant’s industrial injury that was complicated by diabetes. Dr. Dworkin performed plantar fasciitis surgery in April 2007 and the claimant returned to regular duty work on November 26, 2007 for the employer.
Dr. Dworkin is not Level II accredited and referred the claimant to Dr. Burris for evaluation. Dr. Burris noted that the claimant had a pre-existing history of plantar fasciitis that had not been reported to Dr. Dworkin. Dr. Burris found the claimant was at maximum medical improvement (MMI) with no impairment, but he imposed permanent work restrictions. Dr. Burris opined that the claimant was not in need of any medical maintenance treatment. The employer filed a Final Admission of Liability (FAL) based on the report of Dr. Burris.
The claimant maintained that his medical condition worsened to a point that he required further medical care and filed a Petition to Reopen dated October 13, 2009. The matter was heard in 2010. The ALJ found that the claimant failed to establish that it was more probably true than not that he suffered a change in the condition of his compensable left foot injury or a change in his physical or mental condition that could be causally
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connected to the original compensable injury. The claimant brings this appeal contending that the ALJ’s determination is contrary to the facts and law and should be set aside. We are not persuaded to interfere with the ALJ’s order.
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 the law or not supported by the evidence. Rosenberg v. Board of Education of School District No. 1, 710 P.2d 1095 (Colo. 1985).
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 in denying the Petition to Reopen made the following findings of fact. The medical records reflect that the claimant suffered from a preexisting history of plantar fasciitis. Exhibit J K; Tr. 46-48. Dr. Burris explained that plantar fasciitis is a progressive, degenerative condition. Exhibit F at 27. Dr. Burris opined that the claimant suffered an acute aggravation of his preexisting plantar fasciitis condition on December 25, 2006. Burris Depo. at 13. Dr. Burris remarked that there were no significant changes on examination between the claimant’s MMI date of June 10, 2008 and February 3, 2009. Burris Depo. at 11. Dr. Burris explained that diabetes could complicate the claimant’s condition and increase his symptoms. Burris Depo. at 12 `13. Dr. Burris concluded that the claimant’s current left foot condition was not related to the December 25, 2006 industrial injury. Burris Depo. at 13-14; Exhibit A at 7. Dr. Fall agreed with Dr. Burris opinion that the claimant’s part time work for the employer after the filing of the FAL did not aggravate his left foot condition. Exhibit A at 7. Dr. Fall explained that there did not seem to be sufficient stimulus from the claimant’s work activities to lead to acute plantar fasciitis. Fall Depo. at 12. Dr. Fall generally attributed the claimant’s left foot symptoms to the degenerative nature of plantar fasciitis. Fall Depo. at 12. Dr. Burris also noted factors including the claimant’s leg length discrepancy, diabetes and body mechanics that
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could complicate the claimant’s condition. Fall Depo. at 9-10. Dr. Fall concluded that the claimant’s left foot condition was not aggravated by his employment with the employer. Exhibit at 7. Dr. Fall agreed with Dr. Burris that the claimant remained at MMI and that any worsening of his condition was not related to his industrial injury. Fall Depo. at 12; Exhibit A at 7. Although Dr. Dworkin noted that the claimant’s continued foot pain related to his December 25, 2006 industrial injury, he failed to explain the basis for his opinion or consider the claimant’s preexisting history of plantar fasciitis. Exhibit I at 38. Moreover, Dr. Dworkin acknowledged that the claimant suffered from severe recalcitrant plantar fasciitis that was complicated by diabetes. Exhibit I at 41.
The claimant argues that the ALJ abused his discretion in relying upon Dr. Burris’s assessment because the physician clearly deferred to the primary treating medical provider on the issue of causality of the worsening of the condition. Burris Depo. at 24. At his deposition Dr. Burris agreed that in his report February 3, 2009 he stated that in his opinion the claimant’s work at the employer was unlikely to be the source of his present complaints; however, he was awaiting word from the foot and ankle specialist regarding opinions on causation. Exhibit F at 27. Dr. Burris agreed that he never reviewed any reports from Dr. Dworkin subsequent to issuance of his report. Burris Depo. at 24. However, the claimant concedes that Dr. Dworkin did not fully explain how the claimant’s continued foot pain related to the December 25. 2006 but argues that this does not in and of itself defeat the only testimony from an authorized treating physician that the claimant’s medical condition was related back to the industrial accident of December 25. 2006. To the extent that the concession made by Dr. Burris may have weaken his opinion we are not persuaded that the ALJ was compelled to ignore Dr. Burris’s opinion on causation. 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). To the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
The claimant makes repeated reference to the preference he expects to be given to opinions from authorized treating physicians. There are situations where the opinions of authorized treating physicians are given special treatment under the Act. These would include areas such as a release to return to work and medical impairment. However, the claimant has not directed our attention to any authority, nor are we aware of any, that requires the ALJ to credit the opinions of authorized treating physician over the opinions of other physicians on the issue of reopening of a claim. The authority we are aware of is to the contrary. Heinicke v. Industrial Claim Appeals Office 197 P.3d 220 (Colo. App. 2008) (an ALJ is not required to reopen a claim based upon a worsened condition whenever an ATP finds increased impairment following MMI).
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The party seeking reopening bears “the burden of proof as to any issues sought to be reopened.” Section 8-43-303(4), C.R.S. Here the ALJ’s determination that the claimant failed to carry that burden is amply supported by the record. We perceive no abuse of discretion that would justify our interference with the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order April 22, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
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RICHARD MAZUR, LAKEWOOD, CO, (Claimant).
LAW OFFICE OF VINCENT M BALKENBUSH, LLC, Attn: VINCENT M. BALKENBUSH, ESQ., ENGLEWOOD, CO, (For Claimant).
RITSEMA LYON, PC, Attn: KELLIE L. BURDICK, ESQ., DENVER, CO, (For Respondents).
GALLAGHER BASSETT SERVICES, Attn: JENNIFER GREEN, ENGLEWOOD, CO, (Other Party).
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