W.C. No. 4-173-612Industrial Claim Appeals Office.
July 25, 1996
FINAL ORDER
The pro se claimant seeks review of a final order of Administrative Law Judge Wells (ALJ) which denied his petition to reopen. We affirm.
The claimant sustained a compensable back injury in May 1993. The claimant was diagnosed with a “small disc herniation in the left side at L4-5,” and was placed at maximum medical improvement (MMI) on January 27, 1994. Although the claimant was considered for surgery, he did not undergo it.
After being placed at MMI, the claimant was involved in an automobile accident on February 5, 1994. At that time, he reported to Dr. Khan that he was suffering from increased back pain and a new pain radiating down his right leg. Ultimately, Dr. Shogan performed surgery to repair the claimant’s disc.
The claimant alleged that his condition worsened as a result of the industrial injury, and that he was entitled to compensation for the surgery performed by Dr. Shogan. However, the ALJ denied the petition to reopen, finding that the claimant failed to prove that the need for surgery was causally connected to a worsening of condition caused by the industrial injury. Instead, the ALJ found that the claimant’s worsened condition was attributable to the automobile accident.
The claimant has filed a petition to review, and brief in support of the petition. The essence of these documents is that the ALJ misinterpreted the evidence and should have determined that the worsening of condition was related to the industrial injury. We find no error.
The ALJ has wide discretion is determining whether a petition to reopen should be granted, and absent fraud or an abuse of discretion we may not interfere with his determination. Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986). In order to justify reopening, the claimant was obliged to show that he had a worsening of his physical condition which was causally related to the industrial injury. Lucero v. Climax Molybdenum Co., 732 P.2d 642 (Colo. 1987).
The question of whether the claimant proved the requisite causal connection was one of fact for resolution by the ALJ. F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Thus, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). In this regard, we are obliged to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
We have reviewed the transcript and the medical evidence. The claimant’s arguments notwithstanding, there is substantial evidence to support the ALJ’s determination that the claimant failed to carry his burden of proof. Specifically, the medical records indicate that the claimant reported new symptoms shortly after the automobile accident. Further, Dr. Shogan admitted that the claimant’s back condition could have been aggravated by the automobile accident. (Shogan Depo., pp. 24-25). Finally, the claimant himself made representations to insurance adjusters that the automobile accident was the cause of his worsened condition.
It is true that some evidence in the record might support a contrary conclusion. However, because we may not substitute our judgment for that of the ALJ on this factual issue, there is no basis for setting aside the ALJ’s order. May D F v. Industrial Claim Appeals Office, 752 P.2d 589
(Colo.App. 1988).
In view of this disposition, we need not consider the respondents’ argument that the claimant’s brief should be stricken. Further, we decline the respondents’ invitation to dismiss the petition to review for lack of specificity. See Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843
(Colo.App. 1989).
IT IS THEREFORE ORDERED that the ALJ’s order dated December 29, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed July 25, 1996 to the following parties:
Marc Boone, P.O. Box 1465, Pueblo, CO 81002
National Binding Corp., Michelle R. Magruder, Esq., 1225 17th St., Ste. 2800, Denver, CO 80202-5528
CNA Insurance Company, Attn.: Lisa Biggs, P.O. Box 17369, T.A., Denver, CO 80217
Michelle R. Magruder, Esq., 1225 17th St., Ste. 2800, Denver, CO 80202-5528 (For Respondents)
By: _______________________