W.C. No. 4-114-314.Industrial Claim Appeals Office.
June 27, 2003.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied and dismissed the claimant’s petition to reopen based on a worsened condition. We affirm.
The claimant sustained bilateral upper extremity injuries in 1991. The claim was apparently closed after an order which the ALJ issued in January 2001. The claimant filed a petition to reopen contending that her condition worsened and she needed surgery for thoracic outlet syndrome (TOS).
The ALJ denied the petition to reopen, finding the claimant failed to prove a worsened condition which warrants additional treatment or temporary disability benefits. The ALJ credited the opinions of the respondents’ medical expert, Dr. Morgan, that it is questionable whether the claimant has TOS, and even if she does surgery is not a reasonable and necessary treatment for the TOS.
The claimant filed a timely petition to review containing general allegations of error. The claimant then filed a motion for extension of time to file a brief in support of the petition. However, the ALJ denied the motion because the claimant failed to provide a separate, properly captioned proposed order. See Rule of Procedure VIII(D)(1), 7 Code Colo. Reg. 1101-3 at 24. Consequently, the claimant failed to file a brief in support of the petition to review. Under these circumstances, the effectiveness of our review is limited.
The claimant was required to prove a worsening of condition causally-related to the industrial injury, and that the worsened condition warranted additional medical benefits and/or disability benefits. 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); Richards v. Industrial Claim Appeals Office, 996 P.2d 756
(Colo.App. 2000). Because reopening is discretionary with the ALJ, we may not interfere with the order unless an abuse of discretion is shown. Consequently, we must uphold the order unless it is contrary to law or unsupported by the evidence. Jarosinski v. Industrial Claim Appeals Office, supra. Further, we must uphold the ALJ’s pertinent findings of fact if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002.
We have reviewed the transcript and the documentary evidence. The reports of Dr. Morgan fully support the ALJ’s conclusion that the claimant failed to prove a change of condition related to the injury, and that TOS surgery would not be a reasonable treatment even if the claimant has TOS. Consequently, there is no basis to set aside the order.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 26, 2002, 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, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2002. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed June 27, 2003 to the following parties:
Gloria Berumen, 485 Crestmoor Rd., Canon City, CO 81212
George Shipley, Arapahoe County Social Services, Personnel Department, 5334 S. Prince St., Littleton, CO 80166
Judy Montoya, CIRSA, 3665 Cherry Creek Drive North, Denver, CO 80209
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Anne Smith Myers, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210 (For Respondents)
By: A. Hurtado