W.C. No. 4-313-993.Industrial Claim Appeals Office.
January 5, 2004.
FINAL ORDER
The pro se claimant seeks review of an order of Administrative Law Judge Felter (ALJ) which denied a petition to reopen based on an alleged worsened condition. We affirm.
In October 1996 the claimant, while employed by respondent Richard Mervin Masonry, sustained a compensable injury to his right upper extremity. The injury caused cubital tunnel syndrome and the claimant underwent ulnar nerve transposition surgery in March 1997. The claimant was placed at maximum medical improvement (MMI) in September 1997, and the surgeon reported “an excellent result with respect to normalized nerve conduction” studies. Nevertheless, the claimant continued reporting pain in the right upper extremity. The claim for this injury was eventually closed by a final admission of liability.
In January 1999 the claimant commenced work with another employer. While so employed on May 7, 1999, the claimant sustained a second injury to the right upper extremity when he fell on his outstretched arm. Shortly thereafter the claimant was examined by Dr. Hughes who stated the claimant sustained an acute and recent injury to the right upper extremity. In September 1999 the surgeon reported the May 1999 injury aggravated the claimant’s preexisting condition.
In December 2002 the claimant sought to reopen the claim for the 1996 injury alleging that his condition had worsened. However, the ALJ, relying principally on the reports and testimony of Dr. Hughes, found the claimant failed to prove that any worsening of the claimant’s right upper extremity symptoms was caused by the 1996 injury. Instead, the ALJ found the increased symptoms were caused by the 1999 injury.
The claimant’s brief states that he believes the insurer should be liable for additional medical care. In support of this argument the claimant attached medical records to the brief which appear to document medical procedures which occurred after the hearing in this case.
In order to reopen the claimant was required to prove a change in his physical or mental condition which can be causally connected to the original industrial injury. The question of whether the claimant proved the requisite causal connection is an issue of fact for determination by the ALJ. Consequently, if the ALJ’s findings concerning causation are supported by substantial evidence, we may not interfere with the ALJ’s decision to deny reopening. Section 8-43-301(8), C.R.S. 2003; Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082 (Colo.App. 2002) Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
Here, the ALJ’s finding that the claimant failed to prove any worsening of condition that is causally-related to the 1996 industrial injury is amply supported by the reports and testimony of Dr. Hughes, as well as the other evidence cited in the ALJ’s order. Because the weight and credibility to be assigned expert medical opinion is within the ALJ’s discretion as fact-finder, there is no basis to interfere with the order. Cordova v. Industrial Claim Appeals Office, supra.
We may not consider the medical documents attached to the claimant’s brief. Parties are expected to submit their evidence at the time of the hearing, and documents attached to briefs may not substitute for that which must appear of record. Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987).
IT IS THEREFORE ORDERED that the ALJ’s order dated June 10, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2003. The appealing party must serve a copy of the Petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shownbelow on January 5, 2004 by A. Hurtado.
Eliazar Aguirre, 6850 E. Iliff Ave., Denver, CO 80224
Richard Mervin Masonry, 8226 Fox St., Denver, CO 80221
Legal Department, Pinnacol Assurance — Interagency Mail
Glen B. Goldman, Esq. and T. Paul Krueger, II, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)