W.C. No. 4-599-719.Industrial Claim Appeals Office.
November 9, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated April 22, 2005 that denied the claimant’s petition to reopen the claim. The claimant contends that the ALJ’s order is not supported by substantial evidence in the record. We affirm.
The ALJ’s pertinent findings of fact are as follows: The claimant was employed to prepare documents and conduct closings in connection with her employer’s real estate transactions. On August 27, 2003, she was performing this function at a modular office building when lightning struck a flagpole near the building. The claimant jumped from her metal chair when the lightning struck. She was examined the following day by J. Raschbacher, M.D., to whom she reported that either the building or the flagpole was struck by lightning and that, as a result, she received an electric shock. Dr. Raschbacher released the claimant to regular employment, and stated that she would likely reach maximum medical improvement (MMI) within a month with no permanent impairment. He examined her again on September 5th, when she reported a number of symptoms that included severe headaches, and referred her for a neurological evaluation with Dr. Healey. Dr. Healey administered injections and other treatment and recommended myofascial release therapy, continued physical therapy, and EMG studies. Dr. Raschbacher examined the claimant again on October 10th and referred her for EMG studies of her upper extremities, which were performed and were normal. Following a subsequent examination of the claimant on November 25th Dr. Raschbacher stated that she had reached MMI with no permanent impairment. On December 24, 2003, the insurer filed a final admission of liability, to which the claimant did not object.
The claimant consulted Dr. Raschbacher again in December 2003, and then later obtained a referral from her personal physician to Philip Yarnell, M.D. He evaluated the claimant on July 5, 2004, and recommended an MRI of the claimant’s neck, which was performed in August 2004, and which disclosed abnormal findings at two cervical levels. Dr. Yarnell opined that the claimant had sustained an injury to her neck when the lightning struck, and he recommended various forms of treatment.
On November 4, 2004, the claimant filed a petition to reopen the claim based on a worsening of her condition. Dr. Raschbacher examined the claimant again in January 2005, and stated that he disagreed with Dr. Yarnell’s diagnosis of cervical strain with possible radiculopathy. Dr. Raschbacher further stated that the claimant’s cervical symptoms were “incidental” and unrelated to the industrial injury. Although Dr. Yarnell stated conflicting opinions, the ALJ resolved the conflicts in favor of Dr. Raschbacher. The ALJ found that the claimant had failed to show that her condition worsened since she was placed at MMI. Based upon his factual findings the ALJ denied the claimant’s petition to reopen.
On appeal the claimant contends that the ALJ abused his discretion in adjudicating the question whether the claimant’s cervical problems were related to the industrial injury. The claimant argues that the sole issue before the ALJ was whether the admitted conditions caused by the lightning strike had worsened, and that the question of the relatedness of the cervical problems was not before the ALJ. We are not persuaded that the ALJ committed any error.
In order to reopen a claim pursuant to § 8-43-303(1), C.R.S. 2005 the claimant must prove a worsening of her condition that is causally related to the industrial injury. Moreover, the worsened condition must warrant further benefits. 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). The determination whether to reopen a claim is discretionary with the ALJ and, absent fraud or a clear abuse of that discretion, we may not disturb the ALJ’s order. Osborne v. Industrial Claim Appeals Office, 725 P.2d 850 (Colo.App. 1986). An abuse of discretion is only shown where the order exceeds the bounds of reason, such as where it is unsupported by substantial evidence or is contrary to law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
Further, the findings of fact upon which the ALJ bases his determination must be upheld if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2005. In applying the substantial evidence test, we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences that he drew from the evidence. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). To the extent medical evidence is presented, it is solely the ALJ’s responsibility to assess the weight of that evidence and resolve any conflicts or inconsistencies. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The ALJ’s determination that the claimant failed to show that her condition had worsened is supported by the record. The ALJ expressly recognized that the claimant reported a subjective increase in the severity of her symptoms. However, the ALJ found the claimant’s testimony “unpersuasive” in light of the medical evidence that the claimant’s symptoms were not causally attributable to the industrial injury. The ALJ also specifically noted that Dr. Yarnell, who generally opined that the claimant’s symptoms were caused by the industrial injury, was unable to state that the claimant’s cervical disc protrusions were the result of that injury, that her severe headaches were the result of that injury, or that generally her symptoms had worsened. Moreover, Dr. Raschbacher examined the claimant on January 17, 2005, and issued a report in which he described the then-current symptoms the claimant had reported. As the ALJ noted in his findings, Dr. Raschbacher assessed the claimant as having normal cervical lordosis, thoracic kyphosis, and lumbar lordosis, and he found no muscle atrophy or asymmetry in the musculature. Dr. Raschbacher disagreed with Dr. Yarnell’s opinion concerning the cause of the claimant’s symptoms, and stated that there was no “clear connection” between the cervical symptoms that the claimant reported and her industrial injury. It was a plausible reading of Dr. Raschbacher’s report that the claimant failed to prove that her condition resulting from the industrial injury had worsened.
Finally, we disagree with the claimant’s argument that the ALJ abused his discretion in finding that the claimant’s cervical symptoms were unrelated to the industrial injury. In seeking to reopen the claim, the claimant relied upon the condition of her neck, as well as symptoms related to her upper extremities and her headaches. Not only did Dr. Yarnell address these issues, both in his reports and in his deposition testimony, but the claimant also testified as to physical problems with her neck. Because the issue of whether a reopening is appropriate necessarily implicates the question of the symptoms related to the injury, the ALJ properly addressed the relatedness of the claimant’s neck problems.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 22, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
Diane L. Blakey, Henderson, CO, Gail R. Sigman, Land Title Guarantee Company, Denver, CO, Legal Department, Pinnacol Assurance — Interagency Mail.
Robert W. Turner, Esq., Denver, CO, (For Claimant).
Douglas P. Ruegsegger, Esq. and Michele Stark Carey, Esq., Denver, CO, (For Respondents).