W.C. No. 4-633-188.Industrial Claim Appeals Office.
July 14, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated March 17, 2010, that denied and dismissed the claimant’s request to reopen her workers’ compensation claim. We affirm.
The claimant suffered an admitted industrial injury to her lower back on December 29, 2003. Dr. Brogmus determined that the claimant had reached maximum medical improvement on October 21, 2004 and assigned the claimant an 11 percent whole person impairment. The respondents filed a Final Admission of Liability (FAL) based on the report from Dr. Brogmus and the claim closed by operation of law.
The claimant filed a petition to reopen. The ALJ found that the claimant had failed to establish that it was more probably true than not that the claimant suffered a change in the condition of her compensable injury or a change in her condition that could be causally connected to the original compensable injury. Therefore, the ALJ denied the claimant’s request to reopen her claim. The claimant appeals that decision.
We note initially that § 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
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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).
On appeal the claimant first contends that in spite of the ALJ’s findings, the claimant credibly testified that she suffered continuing back pain from her date of MMI forward, with the most significant change in her condition occurring after she fluffed her comforter in August 2008, an activity that was well within her permanent work restrictions. We are not persuaded that the ALJ committed reversible error.
Here the ALJ acknowledged that the claimant had testified that following her release from medical care on October 21, 2004, her lumbar and left leg radicular symptoms never resolved. The ALJ further noted that the claimant had testified that her pain had gradually worsened over the years and had radiated into her lower left leg.
However, the ALJ made the following findings of fact involving an injury the claimant suffered on August 6, 2008 when the claimant threw a comforter. The claimant contacted Dr. Wilson’s office on August 6, 2008 and stated that she had “reinjured her back yesterday and would like some pain pills.” Tr. at 45-46; Exhibit G. On August 7, 2008, the claimant visited Dr. Wilson for an evaluation. The claimant reported that she suffered pain in her right lower back that radiated down her right leg. Exhibit G at 28. She also experienced some numbness and tingling in the hip area. The claimant explained that on August 6, 2008 she had been throwing a blanket on a bed when she experienced sudden, severe pain in the right hip and leg. Exhibit G at 28. Her right leg did not function and she was unable to move for 10 minutes. Exhibit G at 28.
Moreover, the ALJ found that the notes of Dr. Wilson reflected that the claimant did not suffer ongoing worsening pain or a decline in function between October 21, 2004 and the incident of throwing a comforter, which occurred on August 6, 2008. Exhibit G at 30-32; Tr. at 43-44; Exhibit 6 at 33-47. The ALJ found that the medical records reflected that the claimant’s symptoms remained stable until the August 6, 2008 incident. Exhibit 6 at 33-47.
The ALJ concluded that the claimant had failed to demonstrate that she experienced a worsening of her work-related condition that required medical treatment.
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Instead, the ALJ found that the claimant suffered a new injury on August 6, 2008 that constituted an efficient intervening cause for her back symptoms.
On review, it does not appear that the claimant challenges any of the specific findings of fact made by the ALJ. In any event, we find that the findings are supported by substantial evidence in the record. Rather the claimant argues that she credibly testified that she experienced ongoing back pain from the date of MMI and that her condition worsened.
The ALJ did not credit the testimony of the claimant. We may not interfere with the ALJ’s credibility determinations except in the extreme circumstance where the evidence credited is so overwhelmingly rebutted by hard, certain evidence that the ALJ would err as a matter of law in crediting it. Arenas v. Indus. Claim Appeals Office, 8 P.3d 558, 561 (Colo. App. 2000). In our view, such extreme circumstances do not exist here.
On the issue of the ALJ’s determination of the existence of an efficient intervening cause for the claimant’s back symptoms we note the following. In order to reopen based on a worsened condition the claimant is required to prove a change in her mental or physical condition which can be causally connected to the original industrial injury. Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1052 (Colo. App. 2002). If an industrial injury leaves the body in a “weakened condition,” and the weakened condition proximately causes additional injury, the additional injury is a compensable consequence of the industrial injury. Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970). However, the mere existence of a weakened condition is not sufficient to establish causation if the later injury is the result of an efficient intervening cause. The question of whether there has been an intervening cause is ordinarily one of fact for the ALJ Owens v. Industrial Claim Appeals Office, 49 P.3d 1187 (Colo. App. 2002); Lang v. Southern Ute Tribe, W. C. No. 4-450-747 (May 16, 2005). Because the issue is factual in nature, again we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. Lang v. Southern Ute Tribe, supra.
The claimant’s argument notwithstanding, substantial evidence supports the ALJ’s finding that the claimant suffered a new injury on August 6, 2008 that constituted an efficient intervening cause for her back symptoms. The medical records of Dr. Wilson, outlined above, support the ALJ’s determination. In addition, the opinions of Dr. Fall support that determination. Exhibit E, Tr. 57-80. Dr. Fall explained that at the time the claimant reached maximum medical improvement she suffered left-sided back symptoms. Tr. at 63-64. However, Dr. Fall noted that the claimant’s symptoms after the August 6, 2008 injury were suggestive of an acute right-sided disc herniation at L4-5. Tr. at 64-65. Dr. Fall stated that the symptoms were also consistent with an acute muscular strain or facet pain. Tr. at 69-70. Dr. Fall summarized that the claimant likely suffered an acute
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new injury on August 6, 2008, but did not suffer a worsening of her condition related to the original 2003 industrial injury. Tr. at 72-73, 80; Exhibit B at 13-14. We are not persuaded to interfere with the ALJ’s determination that the injury on August 6, 2008 constituted an efficient intervening cause for her back symptoms.
The claimant argues that the ALJ should have addressed and considered the opinions of her primary care physicians, Dr. Wilson and Dr. Donner, as well as the testimony of the claimant, which the claimant contends indicated that her work-related condition had worsened over the last several years and was only accelerated by the August 28 incident. Therefore, the claimant contends she had demonstrated a clear and undisputed change in her condition that was causally connected to the original injury. We are not persuaded that the ALJ committed error.
In his order, the ALJ did discuss the opinions of Dr. Wilson and Dr. Donner. The ALJ noted that Dr. Wilson had opined that the case should be reopened and recommended ongoing pain medicines and acupuncture. The ALJ noted that Dr. Donner concluded that the claimant had suffered a worsening of her work-related back injury after she was placed at maximum medical improvement on October 21, 2004. The ALJ found that Dr. Donner recommended a repeat lumbar MRI before making additional treatment recommendations. However, the ALJ also found that Dr. Donner noted that the claimant’s pain markedly worsened in August, 2008 while throwing a comforter onto her bed, but her symptoms returned to the same level they had been when she reached MMI. The ALJ also credited the opinions of Dr. Fall.
We acknowledge that there was conflicting evidence produced at the hearing. However, the ALJ’s findings are amply supported by substantial evidence. Consequently, those findings must be upheld on review. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo. App. 2002). We perceive no basis upon which to set aside the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 17, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
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PAMELA WINGSTROM, FT COLLINS, CO, (Claimant).
WAL-MART STORES, INC., Attn: CONFIDENTIAL, C/O: PERSONNEL DEPT, FT COLLINS, CO, (Employer).
AMERICAN HOME ASSURANCE, Attn: SARAH WICKHAM/BARBARA GREEN, C/O: CLAIMS MANAGEMENT, INC., BENTONVILLE, AR, (Insurer).
RING ASSOCIATES, PC, Attn: BOB L. RING, ESQ., FT. COLLINS, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK, Attn: M. FRANCES MCCRACKEN, ESQ., DENVER, CO, (For Respondents).
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