W.C. No. 4-467-177.Industrial Claim Appeals Office.
April 18, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which denied her petition to reopen. We affirm.
In 1999 the claimant suffered injuries to her head and cervical spine in a compensable slip and fall injury. The claimant subsequently underwent 2 cervical fusion surgeries. On June 27, 2002 the claimant was placed at maximum medical improvement (MMI) with 20 percent permanent medical impairment.
Dr. Harder, performed a Division-sponsored independent medical examination (DIME) and opined the claimant reached MMI on February 26, 2003, with 29 percent whole person impairment. Dr. Harder’s impairment rating included 5 percent for permanent mental impairment.
In June 2004, the claimant petitioned to reopen the claim and alleged a worsening of condition. At hearing the claimant testified that neck, right arm and hip pain increased after MMI. She also alleged she developed problems with her neck popping in a “locking position,” and experienced greater sleep dysfunction. (Tr. p. 48). The claimant added that the increased symptoms have impaired her ability to perform activities of daily living and employment duties.
Dr. Longnecker opined the claimant was not at MMI until she received multi-disciplinary treatment for her various symptoms. Dr. Gebhard disagreed but recommended additional treatment to maintain MMI.
The ALJ determined the claimant’s symptoms reflect a pattern of waxing and waning from the residual effects of the industrial injury, not a worsening of condition. Therefore, the ALJ denied the petition to reopen. However, pursuant to the parties’ stipulation the ALJ awarded future medical benefits consisting of the treatment prescribed by Dr. Gebhard and Dr. Longnecker.
On review, the claimant contends the ALJ’s findings are insufficient to permit appellate review because the ALJ failed to explain his resolution of conflicts in the medical evidence. In particular, the claimant contends the ALJ failed to explain why he credited the opinions of Dr. Gebhard when the claimant presented substantial evidence to rebut Dr. Gebhard’s opinions. Further, the claimant contends the ALJ’s findings are contrary to the overwhelming weight of the evidence. We reject these arguments.
Section § 8-43-303(1), C.R.S. 2004, authorizes the ALJ to reopen a claim on the ground of a change in condition. 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 medical evidence is subject to highly conflicting inferences concerning whether the claimant’s ongoing symptoms represent a worsening of the industrial injury. The ALJ was not required to articulate the basis for his resolution of conflicts in the evidence regarding credibility. See Wells v. Del Norte School District C-7,
753 P.2d 770(Colo.App. 1987). Nevertheless, the ALJ explicitly stated that he resolved the conflicts in favor of the respondent by crediting the opinions of Dr. Gebhart. (Conclusions of Law 1). This determination adequately articulates the basis for the ALJ’s resolution of the pertinent conflicts. Regional Transportation District v. Jackson, 805 P.2d 1190 (Colo.App. 1991). Furthermore, there is substantial evidence in Dr. Gebhard’s records to support the ALJ’s implicit determination that the claimant remained at MMI.
Moreover, we may not interfere with the ALJ’s credibility determination unless the testimony of Dr. Gebhard is “so overwhelmingly rebutted by hard, certain evidence directly contrary” that the ALJ erred as a matter of law in believing Dr. Gebhard’s opinions. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997). Under this standard the mere existence of contradictory evidence does not afford a basis to interfere with the ALJ’s credibility determinations. Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo.App. 1999).
Contrary to the claimant’s contentions, this record does not compel a finding that Dr. Gebhard’s opinions were overwhelmingly rebutted. The DIME report of Dr. Harder lists the claimant’s symptoms at MMI to include severe loss of motion and pain in the cervical spine, headaches, severe pain at the site of the bone graft, anterior thigh burning and numbness, crying spells, sleep disturbances, and diminished sexual activity. (See
Respondent’s Hearing Exhibit B). Dr. Longnecker’s report dated May 7, 2004 states the claimant is making “steady progress and has improved.” (See Respondent’s Hearing Exhibit K). Dr. Locknecker also testified that the migraines reported by the claimant in August 2003 were similar to the migraines she complained of in the past and that there was no change in the claimant’s cervical range of motion in November 2003. (Tr. pp. 18, 22, 29). In fact Dr. Locknecker admitted that in February she described the claimant’s condition as “unimproved” rather than regressed. (Tr. p. 40). Further, on November 20, 2003, Dr. Stagg reported that the claimant’s condition was the same as it had been in May 2002. (See
Respondent’s Hearing Exhibit I).
The claimant’s remaining arguments essentially request that we substitute our judgment for that of the ALJ concerning the sufficiency and probative value of the evidence. However, we have no authority to do so and, therefore, must decline the claimant’s request. See General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994).
IT IS THEREFORE ORDERED that the ALJ’s order dated November 1, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Kathy E. Dean
Debra Dillard, Grand Junction, CO, Maria Rhodes, Pepsi Bottling Group, CO, RSKCo, c/o Mary Koch, CNA Claim Plus, Littleton, CO, Joanna C. Jensen, Esq., Grand Junction, CO, (For Claimant).
Scott D. Sweeney, Esq., Englewood, CO, (For Respondents).