W.C. No. 4-529-052Industrial Claim Appeals Office.
November 19, 2003
FINAL ORDER
The pro se claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which denied the claimant’s request for surgery. We affirm.
The claimant requested that the ALJ order the respondents to pay for a posterior cruciate ligament (PCL) repair of the left knee as compensable medical treatment under Grover v. Industrial Commission, 759 P.2d 705
(Colo.App. 1988). However, the ALJ denied the claim finding that the claimant failed to prove the need for surgery was caused by the industrial injury to the left knee which occurred on January 2, 2002. In support, the ALJ cited a medical record showing the claimant sustained a prior injury to the left knee in 1997. The ALJ also relied on reports of the claimant’s surgeon showing the PCL condition was diagnosed before the January 2002 injury, and an operative report indicating the PCL condition was “chronic.”
The claimant filed a timely petition to review, but did not file a brief in support. The petition alleges the ALJ “failed to review all medical documentation.” The claimant further states that “new evidence” would cause the ALJ to reverse the decision. We perceive no error.
The claimant had the burden to prove by a preponderance of the evidence that the need for the surgery was caused by the industrial injury. The question of whether he did so was one of fact for determination by the ALJ. Section 8-41-301(1)(c), C.R.S. 2003; Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. 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. Further, it is for the ALJ to determine the weight and credibility to be assigned expert medical opinion. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
We also note that the ALJ need not address every piece of evidence provided the basis of the order is clear from the findings. Evidence not specifically addressed is considered to have been rejected. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000). Further, the ALJ is presumed to have considered the evidence unless the contrary is shown. See Dravo Corp. v. Industrial Commission, 40 Colo. App. 57, 569 P.2d 345 (1977).
Here, we have reviewed the hearing transcript and the medical evidence cited in the ALJ’s order. The ALJ’s findings are supported by substantial evidence in the record, and the ALJ presumably was not persuaded by other evidence which might support the claimant’s position. We perceive no basis for concluding the ALJ failed to consider evidence submitted by the parties. Thus, there is no basis for setting aside the ALJ’s order on those grounds.
Further, the ALJ was not required to conduct an additional hearing to allow new evidence. The ALJ has discretionary authority to order an additional hearing to receive evidence after the apparent conclusion of the proceedings. Section 8-43-301(5), C.R.S. 2003. However, we may not interfere with the ALJ’s refusal to conduct additional proceedings unless an abuse of discretion is shown. See Dee Enterprises v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA2040, July 31, 2003).
Here, the claimant does not describe the nature of the evidence that he wishes to submit, nor has he provided copies of any documents. Consequently, there is no basis for concluding that additional evidence could be outcome determinative. Neither is there any basis for determining whether such evidence might have been discovered and submitted before the hearing through the exercise of due diligence. Thus, there is no basis for concluding the ALJ abused his discretion by implicitly denying the claimant’s request for a further hearing. Cf. Raffaello v. Industrial Claim Appeals Office, 670 P.2d 805 (Colo.App. 1983).
IT IS THEREFORE ORDERED that the ALJ’s order dated May 8, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill Whitacre
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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2002. 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 order were mailed to the parties at the addresses shown below on November 19, 2003 by A. Pendroy.
Benjamin Chynoweth, 2881 Pinyon Ave., Grand Junction, CO 81501
SOS Staffing Services, Inc., 1415 S. Main St., Salt Lake City, UT 84115
Bankers’ Standard Fire Insurance Company, c/o Karen Heser, ACE USA, 1415 S. Main St., Salt Lake City, UT 84115
Robert Hinckley, Jr., Esq., 1700 Broadway, #1900, Denver, CO 80290-1901 (For Respondents)