W.C. No. 4-678-516.Industrial Claim Appeals Office.
May 22, 2009.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) dated January 8, 2009, that granted the claimant’s petition to reopen and awarded additional medical treatment including a total knee replacement. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant suffered a compensable injury to his left knee on March 6, 2006. Dr. Weingarten recommended a total knee replacement. The claimant was diagnosed with multiple myeloma, which kept the claimant from undergoing the recommended total knee replacement. The claimant was placed at maximum medical improvement (MMI) on May 15, 2007. The claimant underwent a Division-sponsored independent medical examination (DIME). The DIME physician agreed that the claimant had reached MMI. The claimant did not challenge the DIME physician’s finding that he was at MMI. The respondents filed a final admission of liability (FAL) based on the opinion of the DIME physician. Later the claimant’s multiple myeloma went into remission and was no longer a barrier to the recommended total knee replacement. The claimant filed a petition to reopen contending that there had been a change in his condition that justified the reopening. The ALJ determined that the recommended surgery was needed to cure and relieve the effects of the compensable injury and granted the petition to reopen. The respondents bring this appeal.
I.
The respondents contend that the ALJ’s granting of the claimant’s petition to reopen is not supported by applicable law. The respondents argue that the effect of the
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order is to circumvent the DIME process and permit the claimant to evade the higher burden of proof required to overcome the opinions of the DIME physician and to untimely challenge the DIME physician’s opinions regarding MMI, impairment and causation. We disagree.
In our view Berg v. Industrial Claim Appeals Office 128 P.3d 270
Colo. App. 2005) is controlling. In Berg the court determined that an uncontested finding of MMI by the DIME physician could be reopened based on mistake of fact. We note that the arguments advanced by the respondents here, are similar to the arguments made by the respondents in Berg. In Berg the respondents argued that the claimant was, in effect, challenging the FAL and the DIME physician’s determination of MMI, but that he had not followed the statutory requirements. I Berg the Panel accepted the respondents’ argument and therefore determined that claimant was precluded from circumventing the conclusive effect of the DIME by seeking to reopen the MMI. However, the court of appeals reversed the Panel and concluded that because the power to reopen is discretionary, there is an inherent protection against improper collateral attacks on a DIME determination of MMI. The court noted in Berg that if a claimant files a petition to reopen in an attempt to circumvent the DIME process and gain the advantage of a lower burden of proof, the ALJ has authority to deny it.
Section 8-43-303, C.R.S., 2008, permits a claim to be reopened based upon “a change in condition.” The power to reopen under the provisions of § 8-43-303 is permissive and left to the sound discretion of the ALJ. Consequently, we may not interfere with the ALJ’s decision unless the record reveals fraud or a clear abuse of discretion. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996) Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986) Martin v. Finzer Business Systems, W. C. No. 4-144-464 (December 8, 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 the law or not supported by the evidence. Rosenberg v. Board of Education of School District No. 1, 710 P.2d 1095 (Colo. 1985).
We are not persuaded that the ALJ abused his discretion in granting the petition to reopen. Here the ALJ found with record support that the diagnoses of multiple myeloma originally kept the claimant from undergoing the recommended total knee replacement. Exhibit 1 at 23. However, the claimant’s multiple myeloma subsequently went into remission and was no longer a barrier to the recommended total knee replacement. Exhibit 2 at 4. Under these circumstances, the ALJ was not compelled to determine that the claimant’s petition to reopen was an attempt to circumvent the DIME process. Therefore, in our opinion, the respondents have failed to establish an abuse of discretion.
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II.
The respondents next contend that the ALJ’s finding that the claimant proved a change in condition is not supported by the applicable law or substantial evidence in the record. The respondents argue that the surgery had been recommended prior to the DIME and before the FAL based on the DIME physician’s opinions had been filed. The respondents concede that the claimant testified that his condition had worsened since being placed at MMI but point out that the ALJ only found that there had been a change in the claimant’s condition that justifies reopening because the multiple myeloma is in remission and is no longer a barrier to the recommended total knee replacement. We are not persuaded that the ALJ committed reversible error in determining that there had been a change of condition.
When considering the sufficiency of the evidence, we must uphold the ALJ’s factual findings if supported by substantial evidence. Section 8-43-301(8), C.R.S. 2008. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). We specifically note that we may not interfere with the ALJ’s decision to credit the testimony of a witness unless, in extreme circumstances, the testimony is overwhelmingly rebutted by such hard, certain evidence the ALJ would err as a matter of law in crediting it. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000).
Here the claimant testified that the instability to his knee had increased. Tr. at 9. The ALJ found with record support that the diagnoses of multiple myeloma originally kept the claimant from undergoing the recommended total knee replacement. Exhibit 1 at 23. However, later the claimant’s multiple myeloma went into remission and was no longer a barrier to the recommended total knee replacement. Exhibit 2 at 4. Dr. Weingarten recommended a total knee replacement. Exhibit 1 at 20. Exhibit 2 at 4. Dr. Healey opined that the compensable injury resulted in a permanent aggravation of the preexisting condition. Exhibit 2 at 4. Dr. Healey further stated that the compensable injury accelerated the need for the surgery and that the total knee replacement was necessary to cure and relieve the effects of the compensable injury. Exhibit 2 at 3-4. The ALJ found that the recommendations and opinions of Dr. Healey and Dr. Weingarten were credible and persuasive. In our view there is substantial evidence in the record supporting the ALJ’s determination that the total knee replacement recommended surgery was needed to cure and relieve the effects of the compensable injury.
The respondents also argue that in order to reopen based upon a “change in condition” the issue is whether the change in condition can be causally connected to the original compensable injury. They argue that here there is no credible evidence that the claimant’s multiple myeloma was causally related to the claimant’s industrial injury. We
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acknowledge that in the context of a petition to reopen change in condition has generally been determined by the courts to refer either “to a change in the condition of the original compensable injury or to a change in claimant’s physical or mental condition which can be causally connected to the original compensable injury.” Chavez v. Indus. Comm’n, 714 P.2d 1328, 1330 (Colo.App. 1985); accord Anderson v. Longmont Toyota, Inc., 102 P.3d 323, 330 (Colo. 2004).
However, the courts have not restricted the change in condition to the originally injured body part. In Chavez v. Indus. Commission, the court found where a claimant’s industrially injured right ankle later caused an injury to her left ankle a change in her physical condition resulting from the original compensable injury had been established sufficient to support a petition to reopen. In our view the ALJ’s determination that the claimant’s change of condition represented by the claimant’s myeloma going into remission, which then allowed the total knee replacement to become medically feasible is sufficient to establish a change in condition for the purposes of the reopening statute.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 8, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
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ERNY BOLIVAR, AURORA, CO, (Claimant).
UNITED NATURAL FOODS, INC., Attn: KATHLEEN WADE, AURORA, CO, (Employer).
ACE AMERICAN INSURANCE COMPANY, Attn: ESIS PORTLAND WC CLAIMS, TAMPA, FL, (Insurer).
ROBERT M MAES, ESQ., Attn: ROBERT M MAES, ESQ., DENVER, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK, PC, Attn: M FRANCES MCCRACKEN, DENVER, CO, (For Respondents).
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