W.C. No. 3-928-246Industrial Claim Appeals Office.
December 18, 1997
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Erickson (ALJ) which denied and dismissed her petition to reopen her claim for workers’ compensation benefits. We affirm.
On December 18, 1988, the claimant suffered a compensable low back injury while working as a nurse for the respondent. As a result of the injury, the claimant underwent a fusion at the L4-5 and L5-S1 areas. On March 18, 1991, the claimant was placed at maximum medical improvement (MMI), with a medical impairment of 24 percent of the whole person and permanent work restrictions.
On May 12, 1992, the claimant reinjured her back while lifting a patient onto a bed pan at the Erhling Berquist Hospital. At the time of the injury, the claimant felt a pop in her back and immediate pain. Thereafter, the claimant’s back condition worsened until February 23, 1993, when she was unable to continue working due to back pain. On October 17, 1995, the claimant underwent additional back surgery by Dr. Olive, which included exploration of the fusion mass, a laminectomy at L3-4, a revision of pseudarthrosis at L4-5, and a posterolateral fusion at L3-4. Following the surgery, Dr. Olive opined that the original fusion surgery had been unsuccessful, and thus, the claimant’s need for further surgery was due to the original injury. The claimant then sought to reopen her claim regarding the 1988 injury.
However, crediting the opinions of Dr. Brantigan and Dr. Hufft, the ALJ found that claimant’s worsened condition and need for additional surgery was caused by the May 12, 1992 incident, and that the claimant had failed to sustain her burden to prove a causal connection between the worsened condition and the 1988 injury. Consequently, he denied the petition to reopen.
On review, the claimant contends that the ALJ abused his discretion in failing to reopen the claim. We perceive no reversible error.
The reopening of a claim is discretionary with the ALJ. Section 8-43-303 C.R.S. 1997. Consequently, we may disturb the ALJ’s order in the absence of an abuse of discretion. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177
(Colo.App. 1996).
The legal standard in reviewing an alleged abuse of discretion is whether, under the totality of circumstances, the ALJ’s order exceeds the bounds of reason. Renz v. Larimer County School District Poudre R-1, supra. In resolving this issue, it is proper to consider whether the ALJ’s order is supported by substantial evidence in the record, and the applicable law Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
Substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995). Furthermore, in determining whether the ALJ’s order is supported by substantial evidence, we must defer to the ALJ’s credibility determinations, his resolution of conflicts in the evidence, and his assessment of the sufficiency and probative weight of the evidence. Durocher v. Industrial Claim Appeals Office, supra. In this regard, the ALJ is not required to explain his credibility determinations. Wells v. Del Norte School District C-7, 753 P.2d 770 (Colo.App. 1987).
Here, there is a direct conflict in the medical evidence concerning the cause of the claimant’s worsened condition and need for further treatment. It is apparent from the ALJ’s factual determinations that he resolved the conflict against the claimant by crediting the opinions of Dr. Brantigan and Dr. Hufft, and rejecting the contrary opinions of Dr. Oliver and Dr. Mitchell. Thus, we disagree with the claimant’s arguments that the ALJ’s findings are insufficient to permit appellate review and that the ALJ failed to resolve the pertinent conflicts in the evidence See Boice v. Industrial Claim Appeals Office, 800 P.2d 1339
(Colo.App. 1990) (ALJ’s findings are sufficient if the basis for the order is apparent).
We also reject the claimant’s contention that the ALJ ignored the opinions of Dr. Olive and Dr. Mitchell. The ALJ expressly cited the opinions of Dr. Mitchell and Dr. Olive concerning the cause of the claimant’s need for further treatment. See Findings of Fact 25, 27-31. However, the ALJ found the opinions of Dr. Brantigan and Dr. Hufft more persuasive.
Further, in view of the conflict in the evidence, we cannot say as a matter of law that the ALJ erred in crediting the opinions of Dr. Brantigan and Dr. Hufft. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). Thus, we may not interfere with the ALJ’s credibility determinations.
However, the claimant asserts that the ALJ was bound by Dr. Olive’s unrefuted testimony that the 1989 fusion surgery was unsuccessful. Because the reports of Dr. Brantigan and Dr. Hufft predate the claimant’s October 1995 surgery and Dr. Olive’s subsequent report that the operation revealed a failed fusion, the claimant argues that the opinions of Dr. Brantigan and Dr. Hufft lack evidentiary value. See High v. Industrial Commission, 638 P.2d 818 (Colo.App. 1981) (expert opinion buttressed by assumed facts at variance with actual facts has no evidential efficacy). Again we disagree.
Contrary to the claimant’s argument, it was not undisputed that the original fusion surgery failed. Further, the ALJ did not ignore Dr. Olive’s opinions, even though he did not find them persuasive. Consequently, the claimant’s reliance on Johnson v. Industrial Commission, 366 P.2d 864 (Colo. 1996), is misplaced.
In any case, even unrefuted medical evidence is not binding on the ALJ. Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981). Therefore, even if Dr. Olive’s opinion regarding the failed fusion was uncontroverted, the ALJ was not required to credit Dr. Olive’s opinion.
Admittedly, the fact that the medical reports of Dr. Brantigan and Dr. Hufft were issued prior to Dr. Olive’s surgery is pertinent to the weight of their opinions. However, the ALJ did not adopt Dr. Olive’s opinion that the original fusion surgery failed. Thus, the opinions of Dr. Brantigan and Dr. Hufft were not at variance with “actual facts.”
We also note that Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995), pertains to the special weight afforded the opinion of the “attending physician,” concerning whether a claimant is capable of performing regular employment for purposes of terminating temporary disability benefits under §8-42-105(3)(c), C.R.S. 1997. Therefore, Burns does not support the claimant’s assertion that the ALJ could not disregard Dr. Olive’s testimony on the cause of the worsened condition.
The claimant’s remaining arguments concerning the credibility of the medical experts the ALJ found persuasive have been considered and do not alter our conclusions. Further, because the ALJ was not persuaded that the original fusion surgery was unsuccessful, he did not err in refusing to reopen the claim based upon a mistake of fact concerning the success of the original fusion surgery.
The claimant also contends that the record does not support the ALJ’s finding that she failed to prove a causal connection between the worsening of her condition after May 12, 1992, and the original injury. In particular, the claimant contends that the ALJ erroneously inferred that she was “functioning at a high level” until May 12, 1992. We are not persuaded.
The ALJ explicitly acknowledged the claimant’s permanent impairment and medical restrictions resulting from the original back injury. However, the ALJ found that the claimant applied for a job as a nurse at the Midlands Community Hospital in May 1991, and passed a pre-employment physical for that job. The also found that the claimant later applied for and passed a pre-employment physical for work as a nurse with a placement agency called Nurse Finders, which eventually placed the claimant at the Erhling Berquist Hospital. The ALJ found that the claimant worked forty hours a week and performed all of her regular employment duties at the Erhling Berquist Hospital until May 12, 1992. Further, the ALJ determined that the claimant attend a CPR training class without difficulty.
Because the ALJ’s findings are supported by substantial evidence in the claimant’s testimony, they must be upheld. (Tr. pp. 43-45, 49). Consequently, insofar as the ALJ’s findings may be read as reflecting an inference that the claimant was functioning at a high level prior to the May 12, 1992 injury, we are bound by that inference.
Lastly, we do not dispute the claimant’s contention that the record contains evidence which, if credited, might support the claimant’s contention that her worsened condition was a natural consequence of the 1988 injury. However, where different plausible inferences may be drawn from the evidence, it is solely the ALJ’s prerogative to determine the inference to be drawn. We may not reweigh the evidence on appeal. Wackenhut Corporation v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA0726, December 11, 1997).
Here, the ALJ’s findings of fact are plausible inferences from the testimony of the claimant and the medical reports of Dr. Brantigan and Dr. Hufft. Under these circumstances, we cannot say that the ALJ abused his discretion in failing to reopen the claim. See Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
IT IS THEREFORE ORDERED that the ALJ’s order dated January 22, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill Whitacre
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed December 18, 1997 to the following parties:
Elma Garner, R.R. 3 Box 4040, Stockton, MO 65785
Ginny Weed, Penrose Hospital, P.O. Box 7021, Colorado Springs, CO 80933
Shirley Va’i, Catholic Health Initiatives, Employee Injury Management, 1115 Elkton Dr., Ste. 400, Colorado Springs, CO 80907
Cynthia M. Pring, Esq., 802 S. Tejon, Colorado Springs, CO 80903 (For the Claimant)
Diane M. Astourian, Esq., P.O. Box 6094, Colorado Springs, CO 80934-6094
Susan Kurachi Reeves, Esq., 111 S. Tejon, #700, Colorado Springs, CO 80903 (For the Respondent)
By: _______________________________