W.C. No. 4-156-147.Industrial Claim Appeals Office.
June 23, 2006.
FINAL ORDER
The claimant seeks review of an order dated December 21, 2005 of Administrative Law Judge Friend (ALJ) that denied the claimant’s petition to reopen alleging her condition had worsened since she reached maximum medical improvement (MMI). We affirm.
This case has a complex history. A summary of that history can be seen in our final order dated May 20, 2003, the subsequent opinion of the Court of Appeals dated July 1, 2004, and in our order of remand dated May 3, 2005. However, the matter presently before us results from the case being remanded to the ALJ solely for consideration of the issue of whether or not the claimant proved that her condition worsened as a result of the compensable injury after she reached MMI on October 13, 2000.
The claimant injured her knee in an accident on December 3, 1992. Dr. Macaulay performed an “agreed upon DIME” under the terms of § 8-42-107(8)(B) C.R.S. 2005, based upon the mutual agreement of the parties. The DIME physician opined that the claimant was at MMI in October of 2000 and that the claimant’s medical records did not sufficiently document a causal relationship between the claimant’s “symptom complex,” allegedly caused by a Cerebral Spinal Fluid (CSF) leak, and the dural puncture which occurred during surgery for the claimant’s industrial knee injury.
On remand the ALJ entered an order dated October 3, 2005 which bifurcated the matter by directing the parties to first submit position statements on the issue of whether the claimant’s condition had worsened since she reached MMI. If the ALJ determined that the claimant’s condition has not worsened since MMI, the claimant’s petition to reopen would be denied. If the ALJ determined that the claimant’s condition had worsened, the parties would be given an opportunity to submit a position statement on whether the worsening was casually related to the industrial injury. The parties submitted position statements. In an Order dated December 21, 2005 the ALJ found the claimant’s complaints were no different before and after October 13, 2000, the date of MMI. Therefore, the claim was not reopened. The present appeal by the claimant followed.
The ALJ conducted an exhaustive examination of the record for the claimant’s complaints on and before the date of MMI as contained in the medical reports and recorded testimony. This revealed a wide range of severe complaints. In October, 2000 the claimant’s pain was constant, unremitting and the pain level, where zero is no pain and ten is suicidal pain, was eight at the least and ten at the most. The ALJ chronicled medical complaints at this time involving large areas of the claimant’s body resulting in the claimant giving up all of her regular activities.
The ALJ then examined the record for the claimant’s complaints after she reached MMI on October 13, 2000. This examination again revealed a wide range of severe complaints. The ALJ concluded that the claimant had not established by a preponderance of the evidence that her condition had worsened.
Once a claim is closed, no further benefits may be awarded unless the claimant establishes grounds to reopen the claim Burke v. Industrial Claim Appeals Office, 905 P. 2d 1
(Colo.App. 1994). Section 8-43-303 C.R.S. 2005, allows reopening upon proof the claimant’s physical condition from the industrial injury worsened after MMI. Anderson v. Longmont Toyota Inc., 102 P.3d 323 (Colo. 2004).
In the absence of an abuse of discretion, we may not disturb the ALJ’s determination that the claimant did not sustain her burden to prove a worsening of the December 3, 1992 injury Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986). The appellate standard on review of an alleged abuse of discretion is whether the ALJ’s order exceeds the bounds of reason, as where it is contrary to the applicable law or unsupported by the evidence. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
We also note the ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law. It is sufficient for the ALJ to enter findings concerning the evidence he considers dispositive of the issues, and evidence and inferences inconsistent with the order are presumed to have been rejected. Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Further, the ALJ is presumed to have considered and applied the relevant legal principles. Shafer Commercial Seating, Inc. v. Industrial Claim Appeals Office, 85 P.3d 619 (Colo.App. 2003).
The ALJ found that before the claimant reached MMI she had severe complaints and this is supported by the record. In particular see Dr. Macaulay Exhibit J at 13. The ALJ found that the claimant continued to have similar complaints after she reached MMI, and there is support in the record for this. In April of 2002 Dr. London testified that he had been treating the claimant since June 1997. Trial Transcripts A at 146. Dr. London reported in February 14, 2002 that her examination was unchanged. Exhibit G at 9.
The primary if not the entire legal focus of the claimant’s brief in support of petition to review is directed to the issue of whether the claimant suffers from leakage of her CSF and that this condition is related to her industrial accident. The claimant does offer the opinion of Dr. Wright that the claimant’s condition has worsened since MMI. Wright Deposition at 17. However, there is substantial evidence in the medical opinions that the ALJ found persuasive to support the ALJ’s finding that the claimant’s condition did not become worse. These include the testimony and reports of Dr. Macaulay, Dr. Basse, Dr. Corenman, Dr. Shelerud, Dr. Tinsley, Dr. Mokri, Dr. London and the testimony of the claimant, all carefully outlined in the ALJ’s order.
The existence in the record of conflicting evidence that would support a contrary result does not provide a basis for setting aside the ALJ’s order. See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo.App. 1999). Therefore, the ALJ’s finding must be upheld on review Delaney v. Industrial Claim Appeals Office 30 P.3d 691
(Colo.App. 2000).
IT IS THEREFORE ORDERED that the ALJ’s order dated December 21, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Thomas Schrant
____________________________________ Robert M. Socolofsky
Joanne Arczynski, Vail, CO Club Mediterrenee of Colorado, Inc., Frisco, CO, Legal Department, Pinnacol Assurance — Interagency Mail Brad R. Irwin, Esq., Denver, CO, (For Claimant).
Thomas L. Kanan, Esq., Denver, CO, (For Respondents).