W.C. No. 3-104-562Industrial Claim Appeals Office.
December 8, 1995
ORDER OF REMAND
The claimant seeks review of a final order of Administrative Law Judge Martinez (ALJ), which denied her petition to reopen based on worsened condition. We set the order aside and remand for entry of a new order.
The ALJ’s findings concerning the claimant’s petition to reopen may be summarized as follows. The claimant sustained a “compensable injury” (apparently an occupational disease) to her left hand and arm on June 20, 1992. The claimant was treated for “left-side symptomatology and left-side carpal tunnel complaints” by Dr. Lippman, Dr. Derkash, Dr. Gilman, and Dr. Robert Fox. Ultimately, Dr. Fox operated on the claimant’s left elbow in October 1992, and performed a left carpal tunnel release in March 1993. Dr. Fox released the claimant to return to work without restrictions in July 1993, and the respondents filed a Final Admission of Liability admitting for permanent disability benefits under the schedule.
In April 1994, the claimant was again examined by Dr. Fox complaining of “new right-sided arm symptoms including some hand numbness and shoulder pain.” However, the ALJ found that Dr. Fox testified in his deposition that the claimant’s “new complaints of right shoulder and right arm pain were not related in any way to the left-side problems for which he had previously treated claimant.” (Findings of Fact 13 and 14).
Under these circumstances, the ALJ concluded that the claimant failed to prove that the “right-sided symptoms,” which constituted the alleged worsened condition, were causally connected to the original industrial injury. The ALJ stated that there were conflicts between the claimant’s testimony and other evidence in the case, “including the deposition testimony of Dr. Robert Fox and the medical records.” However, the ALJ stated that “the deposition testimony of Dr. Robert Fox and the medical records” persuaded him that the claimant failed to prove the requisite causal relationship.
On review, the claimant contends that the ALJ failed to resolve a pertinent conflict in the evidence. Specifically, the claimant argues that, when Dr. Fox testified that there was no relationship between the claimant’s right-sided symptoms and the original industrial injury, the doctor was assuming that there were no right-sided symptoms in 1992. The claimant reasons that, far from being consistent with the medical records, this assumption by Dr. Fox is inconsistent with the medical records. We agree, and therefore, remand for the resolution of the pertinent conflict in the evidence and entry of a new order.
Initially, we note that the granting or denying of a petition to reopen is a matter within the sound discretion of the ALJ. Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986). However, an abuse of discretion may be shown if the ALJ’s order is not supported by substantial evidence in the record, or is otherwise contrary to law. See Coates, Reid and Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
It is true, as the respondents argue, that we may not interfere with the ALJ’s resolution of conflicts in the evidence, his credibility determinations or the plausible inferences which he drew from the evidence. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). However, we may set aside an order where the ALJ fails to resolve pertinent conflicts in the evidence. Section 8-43-301(8); Ralston Purina-Keystone v. Lowry, 821 P.2d 910
(Colo.App. 1991).
Here, the ALJ credited the deposition testimony of Dr. Fox that the claimant presented “new” right-sided symptoms in April 1994. (Fox depo. p. 13). In this regard, Dr. Fox testified that he did not have any reports of “right-sided symptomatology” from the claimant’s treating physicians between September 1, 1992 and July of 1993. (Fox depo. pp. 11, 31). Further, the ALJ found that this testimony was consistent with the medical records. (Conclusion of Law No. 4).
However, as the claimant points out, the medical records contain evidence that the claimant reported right-sided hand numbness to Dr. Lippman, in June 1992, as well as to Dr. Gilman and Dr. Derkash. In fact, Dr. Fox himself was apparently aware of right-sided symptoms as evidenced by his September 1, 1992 report.
It is true that some of the symptoms which the claimant reported in April 1994 are not evidenced in the medical records from 1992 to 1993. However, the right-side hand numbness was reported in the medical records from 1992, and was not a “new” symptom as found by the ALJ. In view of this contradiction between the medical records and the deposition testimony of Dr. Fox, we agree with the claimant that the ALJ failed to resolve a pertinent conflict in the evidence when he determined that the deposition testimony of Dr. Fox was consistent with the medical records. Further, we cannot tell how the ALJ might have evaluated the credibility of Dr. Fox had he recognized and resolved this contradiction. Under these circumstances, the ALJ’s order must be set aside and the matter remanded for entry of a new order consistent with the views expressed herein.
In reaching this result, we do not agree with the claimant that the evidence compels the ALJ to reopen the matter. In our view, the record contains evidence from which the ALJ could infer that the claimant’s problems in 1994, particularly the shoulder and neck complaints, are entirely unrelated to the industrial injury. Further, the ALJ could conclude that any worsening of the claimant’s right-side hand numbness does not represent a compensable worsening of condition, but an aggravation resulting from non-industrial causes.
IT IS THEREFORE ORDERED that the ALJ’s order, dated July 24, 1995, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
Copies of this decision were mailed December 8, 1995 to the following parties:
Judith Cunningham, 813 Park Ave., Rifle, CO 81650
Village Property Management, Inc., 100 Elbert Lane, Snowmass Village, CO 81615
C. Boyd, Esq., Colorado Compensation Insurance Authority — Interagency Mail
William G. Kaufman, Esq., 401 23rd St., #302, Glenwood Springs, CO 81601
(For Claimant)
James E. Elliott, Jr., Esq. and Mark D. Elliott, Esq., 7884 Ralston Rd., Arvada, CO 80002-2434
(For Claimant)
Gene Dackonish, Esq., 744 Horizon Ct., #360, Grand Junction, CO 81506
(For Respondents)
By: ___________________________