W.C. No. 4-521-453.Industrial Claim Appeals Office.
June 8, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) dated January 2, 2007, that denied the claimant’s petition to reopen the claim. We affirm.
A hearing was held on the issues whether the claimant’s claim should be reopened for additional medical benefits based either on a change in condition or a mistake and, if so, whether the claimant was entitled to temporary partial disability benefits. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant was working as a certified nursing assistant on August 1, 2001, when she was injured in a compensable accident. She received medical treatment and was placed at maximum medical improvement on January 28, 2002. The respondents filed a final admission of liability admitting for benefits based upon a 13 percent upper extremity impairment rating. The claimant did not request a Division sponsored independent medical examination (DIME) and did not object to the final admission. At the time of the hearing the claimant sought reopening of the claim in order to obtain an arthrogram recommended by Dr. Wilson. The ALJ found that after reaching maximum medical improvement the claimant did not seek any medical treatment for approximately three and a half years. On March 17, 2006, Dr. Wilson reported that electrical studies of the claimant’s wrists showed mild left carpal tunnel syndrome, a finding that was unchanged since electrical studies done in 2001. He also reported that the claimant suffered from tendonitis of her left thumb, a condition that was not related to her compensable injury. Although Dr. Wilson did not believe that the claimant ever reached maximum medical improvement, he testified that
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there was no evidence that her condition had worsened since the date of maximum medical improvement. The ALJ weighed the medical and lay testimony and found that the claimant’s condition had not changed, either by worsening or by improving, since the date of maximum medical improvement. The ALJ also found that no error or mistake supported reopening the claim. The ALJ also found that the claimant failed to prove that an arthrogram of her wrist was reasonable, necessary, or related to her compensable injury.
Based upon his weighing of the evidence and his factual findings, the ALJ denied the claimant’s petition to reopen. The claimant appealed the ALJ’s order and argues that the ALJ erred in refusing to reopen the claim based on the claimant’s improved condition. She further argues that at the time of maximum medical improvement certain diagnostic tests were recommended; however, they were not then conducted because her pain was poorly controlled and she would be unable to tolerate the procedures. Because her condition has since improved, the claimant argues that the claim should be reopened in order that the previously recommended diagnostic tests be conducted. However, we are unpersuaded that the ALJ erred or abused his discretion in refusing to reopen the claim.
Section 8-43-303(1) authorizes reopening of a claim based upon the claimant’s “change in condition.” The claimant bears the burden of proof to establish the change of her physical or mental condition, which must be causally related to the industrial injury. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997); Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). Reopening is appropriate where the degree of permanent disability has changed or where the claimant is entitled to additional medical or temporary disability benefits. Dorman v. B W Construction Co., 765 P.2d 1033 (Colo.App. 1988). The ALJ is vested with broad discretion in determining whether the claimant carried her burden of proof, and we must uphold the ALJ’s determinations if supported by substantial evidence. § 8-43-301(8), C.R.S. 2005 Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082 (Colo.App. 2002). Substantial evidence is that quantum of probative evidence which supports a reasonable belief in the existence of a fact without regard to evidence supporting conflicting or contrary inferences. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). When applying the substantial evidence test we must defer to the ALJ’s credibility determination, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117
(Colo.App. 2003).
Here, substantial evidence supports the ALJ’s factual findings that the claimant’s condition did not change since she reached maximum medical improvement. The ALJ relied upon the claimant’s testimony that her condition was essentially unchanged and on Dr. Wilson’s testimony that there were no objective findings that would support a finding of a worsened condition. The claimant reiterated several times that her condition was unchanged.
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In response to her attorney’s question whether she had recovered since the date of maximum medical improvement she replied that she had not and that she “told everyone regarding [her] arm that it was pretty much the same.” Tr. at 34. Similarly, when her attorney inquired whether her symptoms had improved, stayed the same, or worsened, she replied that “they never changed, they always continued the same.” Tr. at 36. In describing her then-current symptoms the claimant explained that “from the beginning it’s pretty much the same.” Tr. at 40. Moreover, insofar as the claimant testified that her symptoms were worse, the ALJ rejected that testimony as not credible. This, of course, was his prerogative and we may not usurp his fact finding functions except in extreme circumstances. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1970). The claimant’s testimony, in conjunction with Dr. Wilson’s testimony that there were no objective signs of a worsened condition, amply supports the ALJ’s factual findings. Depo. of Christopher Wilson, M.D. at 13 (July 25, 2006). Under these circumstances the ALJ did not abuse his discretion in refusing to reopen the claim based upon a changed condition.
The claimant also argued at the hearing that the claim should be reopened because according to Dr. Wilson she might be suffering from a ligament tear. Tr. at 13. If that were the case, then the claimant was “misdiagnosed” by her authorized treating physician and prematurely determined to be at maximum medical improvement. Based upon this possible “mistake” the claimant sought to reopen the claim to obtain the diagnostic testing that would either confirm or refute Dr. Wilson’s diagnosis of a possible ligament tear. However, as with the changed condition, we perceive no error in the ALJ’s refusal to reopen the claim on this basis.
It is true that under § 8-43-303(1) an ALJ may also reopen an award on the grounds of error or mistake of law or fact. State Compensation Insurance Fund v. Industrial Commission, 80 Colo. 130, 249 P. 653
(1926); Renz v. Larimer County School District Poudre R 1, 924 P.2d 1177
(Colo.App. 1996). Where the claimant alleges a mistake the ALJ is required to determine “whether a mistake was made, and if so, whether it was the type of mistake which justifies reopening a case.” Travelers Insurance Co., Industrial Commission, 646 P.2d 399 (Colo.App. 1981). As with reopening based on a change in condition, the ALJ’s decision whether to reopen based upon an error or mistake is discretionary and may only be disturbed based upon an abuse of that discretion.
Essentially, the ALJ characterized this alleged “mistake” as a difference of opinions among the authorized treating physicians regarding the claimant’s diagnoses. The ALJ weighed the competing medical evidence and credited the opinions of Dr. Mason and Dr. Hattem that the claimant reached maximum medical improvement on January 28, 2002 and that she was not suffering from sympathetic mediated pain syndrome. The weighing of the
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evidence was, of course, within the ALJ’s province. Nothing in the record persuades us that the ALJ was compelled to conclude that the claimant’s authorized treating physicians were mistaken and that the claim had to be reopened in order to confirm that “mistake.” The ALJ found with record support that the arthrogram proposed by Dr. Wilson was not reasonable and necessary. This factual determination is supported by the medical record and we may not disturb it. Under these circumstances we may not conclude that the ALJ abused his discretion in refusing to reopen the claim based on an error or mistake.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 2, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________ John D. Baird
________________ Curt Kriksciun
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Magdalena Duarte, El Paso, TX, Glen Ayr Health Center Laura Baus, Lakewood, CO, Royal Sun Alliance Phyllis Harrell, Englewood, CO, The Frickey Law Firm Maria De Leon, Esq., Lakewood, CO, (For Claimant).
Dworkin, Chambers, Williams, York, Benson Evans, P.C. Justin L. Miller, Esq. CO, (For Respondents).
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