W.C. No. 4-279-885Industrial Claim Appeals Office.
July 27, 2001
FINAL ORDER
The pro se claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which denied her petition to reopen her claim for workers’ compensation benefits. We affirm.
The claimant suffered a compensable injury in 1994 when a box fell on her head. The claimant began treating with Dr .McCranie in 1996. On October 3, 1996, Dr. McCranie placed the claimant at maximum medical improvement (MMI) and assigned a 19 percent whole person impairment rating. The respondents filed a Final Admission of Liability for permanent partial disability benefits consistent with Dr. McCranie’s opinions. The claimant received a lump sum award of benefits and the claim was closed in 1999.
On November 10, 2000, the claimant filed a petition to reopen the claim based on a worsening of condition and supported by a report from Dr. Leo. The respondents refused to reopen the claim voluntarily.
Section 8-43-303(1), C.R.S. 2000, allows the ALJ to reopen a claim based on a “change of condition.” A “change of condition” refers to a change in the condition of the original compensable injury. Chavez v. Industrial Commission, 714 P.2d 1328 (Colo.App. 1985).
The ALJ found the claimant failed to present credible, persuasive medical evidence of a change in any condition related to the industrial injury. Rather, the ALJ determined the claimant’s complaints were similar to the symptomatology she reported at the time of MMI. In so doing, the ALJ found the claimant’s testimony was not reliable because the claimant was a poor historian who never believed she reached MMI. The ALJ also declined to rely on the opinions of the current treating physicians based upon his determination that their opinions were rendered without benefit of reviewing the prior medical records. Instead, the ALJ gave the greatest weight to the opinions of Dr. McCranie because she began treating the claimant in 1996 and reexamined the claimant in 1999 and 2001. Dr. McCranie opined that the medical conditions related to the industrial injury have not changed and that the treatment recommended by the current providers was duplicative of treatment which was already offered without much benefit. Therefore, the ALJ denied the petition to reopen and the request for additional medical benefits.
On appeal, the claimant contends she proved a worsening of her condition from the industrial injury by the presentation of evidence of severe pain in the trigeminal nerve and a fainting episode at work. She also makes various arguments in support of her contention that the ALJ erred in crediting the opinions of Dr. McCranie over the contrary opinions of the current providers. However, the claimant’s arguments do not provide a basis for us to disturb the ALJ’s order.
Our authority to review the ALJ’s order is set forth in § 8-43-301(8), C.R.S. 2000. That statute precludes us from disturbing the order unless the ALJ’s findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ’s findings, the findings do not support the order, or the order is not supported by the applicable law.
Further, the determination of whether to reopen a claim is discretionary with the ALJ. Osborne v. Industrial Commission, 725 P.2d 63
(Colo.App. 1986). We may not disturb the ALJ’s determination in the absence of fraud or an abuse of discretion. Brunetti v. Industrial Commission, 670 P.2d 1246 (Colo.App. 1983). The standard on appeal of an alleged abuse of discretion is whether the ALJ’s determination exceeds the bounds of reason, as where it is contrary to the evidence or the applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Rosenberg v. Board of Education of School District #1, 710 P.2d 1095
(Colo. 1985).
Here, the ALJ was not persuaded that the claimant had sustained a change in her condition related to the industrial injury, and his findings support that determination. The evidence was susceptible of conflicting inferences, but it is the province of the ALJ to assess credibility and resolve the conflicts. We have no basis for interfering with his assessment of the evidence. See Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
We note that the claimant has not provided a transcript of the hearing. Under these circumstances, we must assume the ALJ’s findings of fact are supported by substantial evidence in the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). In any case, there is substantial evidence in the medical reports of Dr. McCranie dated September 3, 1999 and February 2, 2001 to support the ALJ’s pertinent findings. Because the ALJ’s factual determinations are supported by substantial evidence in the record, we cannot say the ALJ abused his discretion in denying the petition to reopen. Therefore, we must uphold the order denying benefits.
Finally, our review is limited to the record before the ALJ. City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995). Therefore, we have not considered Dr. Miller’s clinic note which is attached to the claimant’s brief in support of the petition for review.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 19, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
NOTICE
An action to modify or vacate this Order may be 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. 2000. 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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed July 27, 2001 to the following parties:
Anna Canales, 7931 S. Bemis Circle, Littleton, CO 80120
Doreen Bovey, Denver School District No. 1, 900 Grant St., Denver, CO 80203
Michael J. Steiner, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
BY: A. Pendroy