W.C. No. 4-649-193.Industrial Claim Appeals Office.
April 12, 2010.
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FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) dated October 30, 2009, that denied and dismissed his petition to reopen. We affirm.
The claimant suffered an admitted industrial injury on April 11, 2005 when he slipped on some ice and twisted his back. The claimant underwent a Division-sponsored independent medical examination (DIME) on June 25, 2007. The DIME physician agreed with the treating physician’s opinion on the date of maximum medical improvement (MMI). The DIME physician evaluated the issue of the claimant’s low back pain and psychological issues and gave the claimant a 23 percent whole person rating but no rating for a psychological condition. At a hearing held on November 7, 2007 ALJ Walsh determined that the DIME physician’s whole person impairment rating was correct.
The claimant filed a petition to reopen based on change of condition in 2008. The ALJ found that the claimant’s basis for his worsening claim were subjective testimonials that his low back condition had worsened and that he had developed an alleged depressive condition. The ALJ found that the claimant’s depression was not caused by his chronic pain but rather by litigation stress. The ALJ concluded that the claimant had failed to demonstrate by a preponderance of the evidence that his condition had worsened since the date of MMI and dismissed the petition to reopen.
The claimant brings this appeal contending that the ALJ abused her discretion in denying the petition to reopen. We disagree.
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Section 8-43-303, C.R.S. 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). 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).
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. 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); Martin v. Finzer Business Systems W. C. No. 4-144-464 (December 8, 2000).
I. The claimant argues that after he reached MMI he was found to have elevated liver enzyme levels as a result of prolonged use of narcotic medications. The claimant, citing City of Colorado Springs v. Industrial Claim Appeals Office 954 P.2d 637 (Colo. App. 1997), concedes that there was no evidence that the elevated liver enzyme levels, in and of themselves, caused additional physical restrictions. However, the claimant argues the termination of pain medications, as treatment for the elevated enzyme levels, did cause additional disability. The claimant argues this led to decreased activities as a result of the elimination of the pain medications. The claimant argues that he was referred to Dr. Sasha who arranged for blood tests to see if there had been an adverse reaction to the pain medications the claimant had taken. The claimant argues that according to both Dr. Sasha and Dr. Hattem the pain medications prescribed for his industrial injury affected his liver, which demonstrates a worsened medical condition. Therefore, the claimant argues he conclusively demonstrated a worsening of condition and the ALJ erred in failing to grant his petition to reopen.
We first note that the ALJ with record support made the following findings regarding the elevated liver function tests. Dr. Hattem testified that he was unaware of why the claimant had elevated liver function tests because the narcotic medications the
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claimant was taking could not cause elevated liver function tests. Hattem Depo. at 21-22. Dr. Hattem testified that the claimant could have some sort of live condition affecting the claimant’s liver enzymes. Hattem Depo. at 24. Therefore, we are not persuaded that the ALJ was compelled to accept the claimant’s proposition that the elevated liver enzyme levels were the result of narcotic pain medication prescribed as treatment for the industrial injury.
In addition, the ALJ made the following findings of fact, with record support, regarding the alleged change of condition. The claimant testified that he agreed that he still had the same complaints as he did as of November 10, 2005 the date he was placed at MMI. Tr. at 26 30. Dr. Hattem testified that he had evaluated the claimant on January 18, 2007, April 26, 2007, January 10, 2008, February 19, 2009 and March 12, 2009. Hattem Depo. at 8-9. Dr. Hattem testified that when he re-examined the claimant on January 10, 2008 the examination remained unchanged from the previous examinations. Hattem Depo. at 9 11. Dr. Hattem testified that at the February 19, 2008 examination the claimant rated his pain at 7/10, which was the same rating the claimant ordinarily gave. Hattem Depo. at 10 12. Dr. Hattem also testified that the repeat MRI showed no objective changes from the two prior MRI studies. Hattem Depo. at 9. Dr. Hattem testified that at the March 12, 2009 evaluation, the claimant’s pain complaints remained unchanged from his previous examinations. Hattem Depo. at 15. Dr. Hattem testified that the claimant did not sustain a worsening of condition. Hattem Depo. at 20. In our view, the ALJ’s determination to dismiss the petition to reopen is supported by substantial evidence. Section 8-43-301(8), C.R.S.
The claimant does not directly question the findings listed above. The claimant concedes that the MRIs did not change over the years. The claimant further concedes that no anatomical change caused an increase in his physical pain level. Rather, the claimant argues that the ALJ erred in relying on the fact that over time the claimant’s pain rating given to the physicians did not vary. The claimant argues that at the hearing he testified that his level had increased to 12 on a 1 to 10 scale following the discontinuation of the pain medication. The claimant argues that the ALJ erred in finding that the claimant was credible when he reported to all his physicians that his level was 7-8 over the years but was incredible when he testified at the hearing that his pain level rose after elimination of the pain mediations. We are not persuaded to interfere with the ALJ’s order.
In our view, it was within the discretion of the ALJ to view the consistent MRI reports and the consistent reports of pain over the years as evidence that the claimant’s condition had not worsened. Moreover, the ALJ was free to credit part or none of the claimant’s testimony depending upon which she found persuasive See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). We perceive
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no reversible error in the ALJ’s reliance on the reports of pain made by the claimant to his physicians over time rather then relying on his estimate of his pain made at the time of the hearing.
II. The claimant also contends that in 2007 the DIME physician opined that he suffered no psychological injury and that the respondents did not challenge that determination. Therefore, the claimant contends the DIME physician’s opinion that he was without psychological injury on the date of MMI is binding. The claimant further contends that all parties agree that the claimant now has psychological injuries. As we understand the claimant’s argument this compels the conclusion that his condition has worsened since MMI and consequently the ALJ erred in failing to reopen his claim. We are not persuaded to interfere with the ALJ’s order.
Here the ALJ found that the claimant testified that Dr. Richman was the first person to diagnose him with depression. Tr. 13 33 36-37; see claimant’s post hearing position statement. However, the ALJ found that when the claimant filed his application for a DIME on April 4, 2007 he already thought that he might have some psychological problems because this was alleged as a condition to be evaluated by the DIME physician. Tr. at 37. The claimant contends that the ALJ erred in making this finding because the DIME physician found the claimant had no psychological injury.
It is undisputed that the claimant requested the DIME physician to rate his psychological condition. The DIME physician stated that he did not rate the patient for a psychological condition because he did not meet diagnostic criteria for one. Exhibit 2 at 10. In our view the ALJ’s finding that the claimant thought he had a psychological problem at the time of his DIME is a plausible inference drawn from the record and therefore binding on us. Section 8-43-301(8), C.R.S.
The claimant argues that no medical professional has even suggested that the psychological issues of the claimant stem from anything other than the industrial injury. Therefore, the claimant argues the ALJ erred in finding that the claimant’s psychological issues resulted from litigation stress. The claimant argues that there is absolutely no evidence upon which the ALJ’s conclusion might be based and therefore the case must be reopened. We are not persuaded.
The ALJ found that the claimant’s depression was not the result of the industrial injury but was caused by his frustration that his case was not over after four and one-half years. In our view this finding is supported by substantial evidence.
We first note that medical evidence is not dispositive of causation. Colorado Fuel
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and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d 28 (1963); Savio House v. Dennis, 665 P.2d 141 (Colo. App. 1983). We further note that the ALJ, with record support, made the following findings of fact. The claimant testified that he developed depression due to his chronic pain. Tr. at 28. However, the claimant also testified that he was frustrated that his case had not settled and was still in litigation four and half years after he sustained his injury. Tr. at 27-28. Dr. Hattem credibly testified that frustration could lead to depression. Hattem Depo at 19-20. At the time of the DIME, the claimant was frustrated regarding his low back pain and frustrated that his case had not yet settled. Tr. at 26-28 34 At the hearing the claimant testified that he was frustrated that he had not settled and that litigation had been going on for four and half years. Tr. at 26-28 34.
The claimant does not challenge these findings directly but rather citing Jarosinski v. Industrial Claim Appeals Office 62 P.3d 1082 (Colo. App. 2002) argues that the burden was on the respondents to prove that there was litigation stress and that the litigation stress caused the depression. However, as we rea Jarosinski the court citing Chavez v. Indus. Comm’n, 714
P.2d 1328, 1330 (Colo. App. 1985) determined that the claimant has the burden of proof to demonstrate a change in the condition of the original compensable injury and that the change in claimant’s physical or mental condition can be causally connected to the original compensable injury. In discussing “litigation stress” th Jarosinski court, in rejecting the majority rule of other states, determined to treat litigation stress as an intervening event, not a compensable consequence of the industrial injury. We do not read Jarosinski as changing the usual rule of burden of proof on reopening in cases involving possible litigation stress.
In any event, regardless of who bore the burden of proof, in our view the ALJ reasonably inferred that the claimant’s depression was not caused by his chronic pain from the industrial accident. The question of whether there is a causal relationship between the employment and the alleged injury or disease is one of fact for determination by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). Because the issue is factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301 (8), C.R.S.
Here, the ALJ concluded that the evidence established that the claimant was frustrated and stressed as of January 18, 2007 because his case had not settled. The ALJ found that this was the cause of his depression and not his alleged chronic pain. The ALJ relied upon the fact that he had the same pain complaints and lack of function since being placed at MMI on November 10, 2005. The ALJ thus concluded that the claimant’s depression was not caused by his chronic pain but rather was caused by litigation stress because he was frustrated that his case was not over after four and one-half years. As
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noted above, the ALJ’s determinations were supported by the testimony of Dr. Hattem and the claimant. In our view, this constitutes substantial evidence. Therefore, we are not persuaded that the ALJ abused her discretion in denying and dismissing the claimant’s petition to reopen.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 30, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
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ALBERT SIEGMUND, 3580 VAN TEY LINGER DR #A, COLORADO SPRINGS, CO, (Claimant).
FORE PROPERTY COMPANY, Attn: HOWARD STOCKING, WESTLAKE VILLAGE, CA, (Employer).
TRAVELERS INDEMNITY CO, Attn: MS MARCHELLE ROBINSON, DENVER, CO, (Insurer).
LAW OFFICE OF WILLIAM ALEXANDER, JR., PC, Attn: WILLIAM A. ALEXANDER, JR., ESQ., COLORADO SPRINGS, CO, (For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: EMILY F AHNELL, ESQ/ERIC J POLLART, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).
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