W.C. No. 4-279-268Industrial Claim Appeals Office.
August 21, 2002.
FINAL ORDER
The claimant and the respondents petitioned to review an order of Administrative Law Judge Stuber (ALJ) which granted a petition to reopen. The respondents contend the evidence does not support the ALJ’s finding that the claimant proved a worsened condition causally related to the industrial injury. The claimant contends the ALJ erred in finding she failed to prove entitlement to additional temporary disability benefits. We affirm.
In 1995 the claimant sustained a compensable injury diagnosed as a cumulative trauma disorder. The condition primarily affected the claimant’s right upper extremity, although she reported symptoms in the left upper extremity. The claimant reached maximum medical improvement (MMI) in October 1995, and a treating physician assigned an impairment rating of 19 percent of the right upper extremity. No impairment rating was given for the left upper extremity. The claimant was given permanent restrictions of “light fingering, keyboarding and writing for 20 minutes per hour and lifting of 5 pounds.” The claimant did not return to work after MMI.
Subsequently, the claimant sought an award of permanent total disability benefits and ongoing medical benefits after MMI. However, an ALJ denied these claims by order dated September 4, 1996. This ALJ found the claimant failed to prove she was unable to earn wages in any employment, and that she was entitled to ongoing medical benefits.
In January 2001, the claimant filed a petition to reopen based on worsened condition and sought additional medical treatment and temporary disability benefits. Based on the claimant’s testimony and the report and testimony of Dr. Pero, the ALJ found the claimant proved that she was suffering from a “myofascial pain syndrome” of the left upper extremity causally related to the industrial injury. The ALJ further found this condition constituted a worsening of condition sufficient to reopen the claim, and the claimant was entitled to a “short course of physical therapy” and transitional exercise program to cure or relieve the condition. However, the ALJ denied the claim for temporary disability benefits finding the “claimant failed to prove any increased disability due to her worsened left arm condition.”
I.
On review, the respondents contend the ALJ erred as a matter of fact and law in finding the claimant carried her burden of proof to establish a worsened condition causally related to the industrial injury. The respondents contend the ALJ erred in relying on Dr. Pero’s opinions because he placed excessive reliance on the claimant’s subjective reports of increased symptoms. The respondents contend the ALJ should have relied on the report and testimony of their expert. We find no error.
In order to reopen based on a worsened condition, the claimant must prove a change in mental or physical condition which is causally related to the original injury. Cordova v. Industrial Claim Appeals Office,
___ P.3d ___ (Colo.App. No. 01CA0852, February 28, 2002). Reopening may be granted if the claimant needs additional medical treatment or the claimant is entitled to additional disability benefits. Dorman v. B W Construction Co., 765 P.2d 1033 (Colo.App. 1988).
Reopening based on worsened condition is left to the sound discretion of the ALJ. Consequently, we may not interfere with the order unless there was fraud or a clear abuse of discretion. Richards v. Industrial Claim Appeals Office, 996 P.d. 756 (Colo.App. 2000). An abuse of discretion is not shown unless the ALJ’s order is beyond the bounds of reason, as where it is contrary to law or not supported by substantial evidence in the record. See Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001).
The questions of whether the claimant proved a worsened condition, and that the worsening was causally related to the industrial injury, are factual in nature. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001; Chavez v. Industrial Commission, 714 P.d. 1328 (Colo.App. 1985). Substantial evidence is that quantum of proof which would support a reasonable belief in the existence of a fact without regard to contradictory evidence and conflicting inferences. Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.d. 524 (Colo.App. 1996). We note that expert medical opinion is not needed to prove causation where circumstantial evidence supports an inference of a causal relationship between the injury and the claimant’s condition. Savio House v. Dennis, 665 P.d. 141 (Colo.App. 1983). Where conflicting expert opinion is presented, it is for the ALJ as fact-finder to resolve the conflict. Rockwell International v. Turnbull, 802 P.d. 1182 (Colo.App. 1990).
The respondents’ arguments notwithstanding, the record contains substantial evidence to support the ALJ’s award of medical benefits to treat the symptoms of the claimant’s left upper extremity. As the ALJ found, the claimant complained of left arm symptoms prior to MMI in 1995, and these symptoms were noted when the claimant underwent the physical capacity evaluation. Dr. Pero testified that when he examined the claimant in 2001 she had “objective findings” in the left upper extremity, including positive Tinel’s and Phalen’s signs, nodularity along the extension muscles of the left arm, and numerous “trigger points” in the muscles of the shoulder girdle. (Tr. pp. 15, 25). He also opined these symptoms are related to the original injury. (Tr. p. 15). This evidence, taken with the claimant’s testimony concerning increased symptoms, supports the ALJ’s finding the claimant sustained a worsened condition related to the industrial injury.
The respondents presented conflicting testimony, including the opinions of their medical expert. However, we may not interfere with the ALJ’s decision to credit the testimony of the claimant’s expert over that of the respondents’ expert. Rockwell International v. Turnbull, supra. In this regard, we note that the respondents’ expert testified that, although he did not believe the claimant’s symptoms were related to the injury, he was not aware of any other event which could have caused the symptoms. (Tr. p. 87).
II.
The claimant contends the ALJ erred in denying his claim for temporary disability benefits as a result of the worsened condition. The claimant argues that only the right arm was impaired in 1995, and there were no restrictions involving the left arm. Because the ALJ found the worsening of condition involves the left arm, the claimant argues “common sense” dictates there has been a reduction of her wage earning capacity. We disagree with the claimant’s argument.
Where a claimant seeks to reopen for additional temporary disability benefits based on a worsened condition the claimant must show the worsened condition caused additional temporary loss of wages beyond that which existed at MMI. Thus, the claimant must show the worsening caused increased restrictions, and that the additional restrictions caused additional temporary impairment of the claimant’s capacity to earn wages. City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.d. 637 (Colo.App. 1997); Stineman v. La Villa Grande Care Center,
W.C. No. 3-106-730 (December 14, 1998). The question of whether the claimant proved increased impairment of earning capacity (i.e. disability) is one of fact for determination by the ALJ. Lymburn v. Symbios Logic, 952 P.d. 831 (Colo.App. 1997); Chapman v. Dow Chemical Co., W.C. No. 4-102-842
(May 12, 2000), aff’d., Dow Chemical Co. v. Industrial Claim Appeals Office, (Colo.App. No. 00CA1044, December 21, 2000) (not selected for publication).
We reject the claimant’s argument that she is entitled to temporary disability benefits because the 1995 “impairment” involved her right arm and the subsequent worsening involved her left arm. There is no necessary correlation between medical “impairment” and disability. Askew v. Industrial Claim Appeals Office, 927 P.d. 1333 (Colo.App. 1996). Neither is there a necessary correlation between worsened symptoms and increased temporary disability. City of Colorado Springs v. Industrial Claim Appeals Office, supra.
Further, there is substantial evidence to support the ALJ’s finding that the claimant failed to prove increased disability as a result of the worsened condition. As the ALJ recognized, at the time the claimant was originally placed at MMI she had restrictions which precluded her from returning to her preinjury employment and limited her to a few sedentary or light jobs including retail sales, receptionist, and parking lot attendant. Further, the claimant never attempted to work after reaching MMI. Thus, the ALJ could logically infer that, even if the worsened condition resulted in additional limitations on use of the claimant’s left arm, those limitations did not result in any overall reduction in the claimant’s already limited access to the labor market. Because the ALJ’s order is supported by the evidence and plausible inferences drawn therefrom, we may not interfere with it.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 14, 2001, 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. 2001. 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 August 21, 2002 to the following parties:
Judy M. Blea, 3120 Bayside Grove, Colorado Springs, CO 80922
Deluxe/Current, Inc., 1005 Woodmen Rd., Colorado Springs, CO 80920-3181
Bill Dacus, Claim Manager, Deluxe Corporation, P. O. Box 64235, St. Paul, MN 55164
Travelers Indemnity Company, c/o Barbara McDaniel, Travelers/Aetna Casualty Surety Co., P. O. Box 173762, Denver, CO 80217-3762
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Lawrence D. Blackman, Esq., 999 18th St., #1755, Denver, CO 80202 (For Respondents)
By: A. Hurtado