W.C. No. 4-478-405Industrial Claim Appeals Office.
December 13, 2002
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Stuber (ALJ) which denied a petition to reopen based on a worsened condition. The claimant contends the ALJ’s findings and the evidence do not support the denial of the petition to reopen. We affirm.
On July 18, 2000, the claimant sustained an injury to her low back and groin when she stepped off of a ladder. The claimant’s authorized treating physician, Dr. Bradley, diagnosed a lumbar strain and groin strain, and provided conservative treatment. During the course of the treatment an MRI was performed and the claimant was found to have preexisting degenerative joint disease (DJD) of the lumbar spine.
On October 12, 2000, Dr. Bradley placed the claimant at maximum medical improvement (MMI) with no impairment. On that date Dr. Bradley reported the claimant had returned to her regular employment and was doing much better. Further, Dr. Bradley testified the claimant reported she was not experiencing any pain, numbness, or tingling. Thus, Dr. Bradley opined the claimant’s July 18 injury had “resolved” by the date of MMI. (Bradley Depo. Pp. 20-21).
After MMI the claimant performed her usual duties as a stocker, but experienced a flare-up of back and groin pain in November 2000. She was taken off of work and did not return until December 25, 2000. In January 2001, the respondents filed an uncontested final admission of liability and the claim was closed.
The claimant experienced another increase in back pain beginning in June 2001, and went to the emergency room in July 2001. The claimant was examined by her personal physician, Dr. Berens, who diagnosed a lumbosacral and sacroiliac strain, and placed the claimant under restrictions which precluded her from returning to her regular work. Dr. Berens opined the claimant’s symptoms are related to the industrial injury and “subsequent reaggravation by activities of her work.” (Berens Depo. p. 77).
In April 2002, the claimant sought to reopen the claim based on a worsened condition, and requested temporary disability benefits commencing July 4, 2001. However, the ALJ found the claimant failed to prove that the worsening of her back pain after MMI was “due to the natural progression of the July 18, 2000” industrial injury. Instead, the ALJ found the effects of the July 18 injury “resolved,” and the subsequent exacerbations of the claimant’s preexisting DJD were “aggravated and perpetuated” by the claimant’s work activities after MMI.
On review, the claimant argues the ALJ’s finding that the post-MMI work activities aggravated the claimant’s condition required the ALJ to reopen the claim. The claimant also argues that the ALJ’s finding that the July 18, 2000 injury was not a cause of the worsening is not supported by the evidence. In this regard, the claimant points out that she experienced an exacerbation of her condition in November 2001, approximately one month after reaching MMI. The claimant also relies on her own testimony that she has had persistent back problems since the July 18 injury, and the opinions of Dr. Berens and Dr. Hall. We find no error.
A claim may be reopened based on a change of condition. Section 8-43-303(1), C.R.S. 2002. However, the change of physical or mental condition must be one which can be causally connected to the original industrial injury. City and County of Denver v. Industrial Claim Appeals Office, __ P.3d __ (Colo.App. No. 02CA0322, September 26, 2002); Chavez v. Industrial Commission, 714 P.2d 1328 (Colo.App. 1985).
The claimant has the burden of proof to establish a worsening and the requisite causal relationship to the industrial injury. Further, absent fraud or an abuse of discretion, the ALJ’s determination of whether the claimant has made the requisite showing is binding on appeal. An abuse of discretion is not shown unless the ALJ’s determination is beyond the bounds of reason, as where it is contrary to law or not supported by the evidence. Jarosinski v. Industrial Claim Appeals Office, __ P.3d __ (Colo.App. No. 02CA0332, December 5, 2002).
If the evidence reveals that the industrial injury left the body in a weakened condition, and that the worsening is a natural and proximate result of the weakened condition, the worsening is a compensable consequence of the industrial injury. Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970); Jarosinski v. Industrial Claim Appeals Office, supra. However, if the worsening is the result of an intervening cause, including an intervening industrial injury, the worsened condition is not a compensable consequence of the original industrial injury, but a new injury. Determination of whether a worsening of condition was proximately caused by a prior industrial injury or an intervening injury is ordinarily one of fact for the ALJ. See Owens v. Industrial Claim Appeals Office, 49 P.3d 1187 (Colo.App. 2002) (whether condition is result of independent intervening cause is one of fact) University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637
(Colo.App. 2001) (apportionment of temporary disability and medical benefits upheld where evidence supported ALJ’s finding that claimant’s worsened condition and need for treatment was equally attributable to a 1991 industrial back injury and a subsequently incurred occupational disease); F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
Because the issue of causation is factual, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review requires that we defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). Further, the ALJ is not held to a standard of absolute clarity in expressing findings of fact, and the ALJ need not explicitly reject evidence which he finds is not persuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Applying these principles here, we conclude ALJ did not abuse his discretion because the findings of fact are not inconsistent with the denial of the petition to reopen the claim. The ALJ determined that the July 18, 2000 industrial injury did not cause any permanent aggravation of the claimant’s preexisting DJD, and that the effects of the injury “resolved” by October 12, 2000, the date of MMI. Hence, the ALJ concluded the subsequent aggravations of the claimant’s condition were the result of intervening injuries or aggravations attributable to post-MMI work activities, not the result of a worsened condition caused by residuals of the July 18 injury. Because the claimant failed to prove the worsened condition was caused by the industrial injury, there was no factual or logical impediment to denial of the petition to reopen. Jarosinski v. Industrial Claim Appeals Office, supra.
The claimant’s assertion notwithstanding, this is not merely a case of elevating form over substance. The respondents may have defenses to a claim for a subsequent, intervening injury, and the claimant’s entitlement to benefits might well be different than for this claim. Of course, the claimant did not ask the ALJ to address a claim for a subsequent injury, and the respondents were not prepared to defend against such a claim. Thus, the issue may not be addressed on appeal Kuziel v. Pet Fair, Inc., 948 P.2d 103 (Colo.App. 1997).
Moreover, the ALJ’s findings concerning the cause of the claimant’s post-MMI worsening are supported by substantial evidence in the record. The ALJ credited the reports and testimony of Dr. Bradley insofar as they establish the claimant’s July 18 injury “resolved” by October 12, the date of MMI. Further, Dr. Bradley’s testimony contradicts the opinions of Dr. Berens and Dr. Hall, and the claimant’s assertion that she remained symptomatic at the time she reached MMI. The ALJ implicitly resolved the conflicts in favor of the respondents, and we have no basis to interfere with that determination.
Because the ALJ inferred the claimant’s condition returned to baseline on the date of MMI, he logically concluded the subsequent worsening was caused by the intervening work activities. Indeed, the claimant’s own testimony tends to corroborate this inference since she associated increased pain with her work. The fact other inferences were possible affords no basis for appellate relief. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
IT IS THEREFORE ORDERED that the ALJ’s order dated June 17, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed December 13, 2002 to the following parties:
Lilieth B. Edwards, 8 Bellflower Court, Pueblo, CO 81001
Wal-Mart Stores, Inc., 4200 Dillon Dr., Pueblo, CO 81008
American Home Assurance, c/o Shirley Tayrien, Claims Management, Inc., P. O. Box 1288, Bentonville, AR 72712-1288
Patrick C. H. Spencer, II, Esq., 830 Tenderfoot Hill Rd., #320, Colorado Springs, CO 80906 (For Claimant)
Richard A. Bovarnick, Esq., Gary L. Fleming, Esq., and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
By: A. Hurtado