IN THE MATTER OF THE CLAIM OF AMY f/k/a Martinez, f/k/a Roy GORACKE, Claimant, v. BONNELL GOOD SAMARITAN, Employer, and SENTRY INSURANCE COMPANY, Insurer, Respondents.

W.C. Nos. 4-586-929 4-698-446.Industrial Claim Appeals Office.
November 1, 2010.

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated September 26, 2008 that denied and dismissed a claim for compensation and additionally denied the claimant’s petition to reopen on a separate claim. We affirm.

The claimant sustained an admitted injury to her back while transferring a patient on July 4, 2003 while working for Bonnell Good Samaritan (Bonnell). This claim is identified as W.C. No. 4-586-929 (2003 claim). The respondents filed a Final Admission of Liability on February 19, 2004. The claimant filed a petition to reopen her claim alleging a change in condition. The ALJ found that the claimant had failed to demonstrate that her condition from the admitted injury had worsened such that her 2003 claim should be reopened.

The claimant filed a claim denominated W.C. No. 4-698-466, alleging she sustained an occupational disease type injury with a date of onset of March 18, 2006 (2006 claim) while working for Community Advantage, d/b/a ResCare (ResCare). The claimant alleged that she sustained an injury to her low back and right leg as a result of the nature of her work including extensive transferring of patients. The ALJ found that the claimant had failed to show that she sustained either an acute injury or occupational disease from her work activity at the employer and denied and dismissed her 2006 claim.

The claimant appeals both the ALJ’s decision regarding reopening the 2003 claim and the ALJ’s decision denying the 2006 claim. We are not persuaded to interfere with the ALJ’s decision on either claim.

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I.
The claimant contends that she proved by a preponderance of credible evidence that her condition had worsened such that her 2003 claim should be reopened. We are not persuaded to interfere with the ALJ’s discretion in refusing to reopen the claim.

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).

Here, the ALJ credited the medical opinion of Dr. Reichhardt in finding that the claimant failed to prove by a preponderance of credible evidence that her claim against Bonnell should be reopened. The ALJ found the claimant’s testimony lacked credibility. The ALJ made detailed findings concerning the inconsistencies between the claimant’s testimony concerning her medical history, the mechanism of injury and dates of injury when compared to the medical record. The claimant does not dispute that there are such inconsistencies.

Rather, the claimant contends that what the record does not indicate is that the claimant is suffering from bipolar disorder, sleep apenea disorder, and degenerative disk disease in the cervical and lumbar spines. The claimant contends that as a result of her conditions she takes medications that cause her to be very groggy. The claimant argues that the serious medication she takes impacts her mental capacity and thus affects her testimony and the information she provided to her doctors which was used as a basis for denying her claim. The claimant makes reference to information from the Cancer Treatment Center of America concerning one of the medications that she takes. The claimant attached an exhibit to her Brief in Support of Petition to Review referencing, among other things, medication she is taking for her headaches and her bipolar disorder.

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The claimant concludes that the ALJ failed to take into account that she was on serious medication and that resulted in the basis for his denial.

With regard to the medical records attached to her brief, parties are expected to submit their evidence at the time of the hearing Frank v. Industrial Commission, 96 Colo. 364, 43 P.2d 158 (1935). The claimant’s representations and attachments to her brief may not substitute for that which must appear of record. Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo. App. 1987). Therefore, we may not consider the effect of the additional medical records submitted by the claimant.

Further, although the parties did not submit written position statements, it does not appear from the closing argument made by the claimant that it was argued before the ALJ that possible inconsistencies in the claimant’s testimony were explained by the medication she was taking or by her mental condition. Tr. at 99-102. Because the argument was not raised by the claimant before the ALJ we shall not consider the argument for the first time on appeal Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988) Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo. App. 1994); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo. App. 1987).

In our view the testimony of Dr. Reichhardt that there was no persuasive medical evidence showing the claimant’s condition from the injury at Bonnell, coupled with the ALJ’s credibility determinations, constitute substantial evidence supporting the ALJ’s determination to deny the petition to reopen. Reichhardt Depo. at 27, 51. Therefore we are bound by the ALJ’s determination. Section 8-43-301(8).

II.
The claimant next contends that regarding her 2006 claim she proved by a preponderance of credible evidence that she sustained an acute injury or occupational disease arising out of the course and scope of her employment

To prove a compensable injury, the claimant had the burden to prove by a preponderance of evidence that her condition arose out of and in the course of her employment. Section 8-41-301(1)(c), C.R.S. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000); Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ. Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo. App. 1988). As noted above, because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s credibility

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determinations, 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).

The claimant makes the same arguments involving the 2006 claim involving her mental condition and effects of certain medications as she did with the 2003 claim. We reach the same conclusion here involving the 2006 claim as we did involving those contentions made in the 2003 claim.

The claimant also contends that the ALJ failed to address the underlying issue of the claim for a back injury. However, in our view the ALJ did make findings on this issue. The ALJ outlined and credited the testimony of Dr. Reichhardt, which supported a finding that it was improbable that she sustained an acute injury to her lower back while working for ResCare. The ALJ also credited the medical opinion of Dr. Reichhardt in finding that the claimant sustained an occupational disease from her work activity at ResCare. In our view, the ALJ’s reliance on the medical opinion of Dr. Reichhardt in finding the claimant had failed to prove by a preponderance of the evidence either that she sustained an acute lower back injury or that she sustained an occupational disease to her lower back from her work at ResCare is supported by substantial evidence. Reichhardt Depo. at 57-58.

Further, the ALJ made findings concerning the credibility of the claimant’s testimony regarding this claim. The ALJ determined again the claimant’s testimony involving the 2006 claim also lacked credibility. 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). In our opinion there is no basis upon which to set aside the ALJ’s credibility determinations.

IT IS THEREFORE ORDERED that the ALJ’s order dated September 26, 2008 is affirmed.

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INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ John D. Baird

____________________________________ Thomas Schrant

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AMY f/k/a Martinez, f/k/a Roy GORACKE, WINDSOR, CO, (Claimant).

BONNELL GOOD SAMARITAN, Attn: SHELLEY CHANEY, HR DIRECTOR, C/O: COMMUNITY ADVANTAGE, d/b/a RESCARE, GREELEY, CO, (Employer).

SENTRY INSURANCE COMPANY, Attn: KELLY FLESSNER, C/O: SPECIALTY RISK SERVICES, DENVER, CO, (Insurer).

ABBOTT MONK, PC, Attn: KEITH E. ABBOTT, ESQ., GREELEY, CO, (For Claimant).

WHITE STEELE, PC, Attn: STEVEN G. SPARR, ESQ., C/O: DOMINION TOWERS, DENVER, CO, (For Respondents).

CLIFTON, MUELLER BOVARNICK, ESQ., Attn: RICHARD A. BOVARNICK, ESQ., DENVER, CO, 80203 (Other Party).

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