W.C. No. 4-177-142Industrial Claim Appeals Office.
March 17, 2000
FINAL ORDER
The pro se claimant seeks review of an order of Administrative Law Judge Friend (ALJ Friend) which denied his petition to reopen based on a worsened condition. We affirm.
The claimant sustained an injury to the cervical, thoracic, and lumbar spine in 1993. The claim was originally closed by order of ALJ Stuber dated May 25, 1994. In that order, ALJ Stuber found the claimant failed to overcome the opinion of the Division-sponsored independent medical examination physician that the claimant reached maximum medical improvement on July 20, 1993, and had no permanent medical impairment. In 1995, the claimant filed a petition to reopen based on worsened condition, but the petition was denied.
On February 9, 1999, the claimant filed a second petition to reopen based on worsened condition. The report was accompanied by the December 1, 1998, report of Dr. Machanic. Dr. Machanic diagnosed fibromyalgia as a consequence of preexisting degenerative disc disease. The respondents offered the report of Dr. Kawasaki, dated July 14, 1999. Dr. Kawasaki stated the claimant’s “workup has been entirely negative other than cervical and lumbar degenerative changes, which are considered normal for the patient.” Dr. Kawasaki concluded the claimant has “a long history of pain complaints and a myriad of symptomatology, which does not appear to be physiologically or anatomically based.” Dr. Kawasaki also disputed Dr. Machanic’s diagnosis of fibromyalgia.
In an order dated October 15, 1999, ALJ Friend concluded the claimant failed to prove a worsened condition, and denied the petition to reopen. The ALJ explicitly credited Dr. Kawasaki’s July 14 report, and discredited conflicting medical reports.
Although the record contains a November 29, 1999, letter from a legal assistant to the claimant stating that a transcript of hearing was filed, the record contains no transcript. However, our review of the claimant’s petition to review, indicates the claimant did not request a transcript. Therefore, we understand the record to be complete.
The claimant’s brief in support of the petition to review generally asserts that he has been disabled since 1993, and that various medical records demonstrate this fact. However, we perceive no error in ALJ Friend’s order.
The claimant was required a prove a worsening of his physical or mental condition which is causally related to the industrial injury. Chavez v. Industrial Commission, 714 P.2d 1328
(Colo.App. 1985); § 8-43-303(1), C.R.S. 1999. The ALJ’s order denying the claim must be upheld in the absence of fraud or clear abuse of discretion. Richards v. Industrial Claim Appeals Office, __ P.2d ___ (Colo.App. No. 99CA0593, January 20, 2000). An abuse of discretion is not shown unless the ALJ’s order is beyond the bounds of reason, as where it is contrary to law or unsupported by substantial evidence. Rosenberg v. Board of Education of School District No. 1, 710 P.2d 1095 (Colo. 1985).
The ALJ’s pertinent findings of fact must be upheld if supported by substantial evidence in the record. §8-43-301(8), C.R.S. 1999. The weight and credibility of the medical evidence is a matter within the ALJ’s province as fact finder. Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990).
We have reviewed the medical records cited in the ALJ’s order. Although there are conflicting reports, the ALJ resolved the conflicts in favor of the respondents and found the claimant failed to prove a worsening of condition. The ALJ’s determination is supported by many medical records, particularly the July 14, 1999, report of Dr. Kawasaki. Under these circumstances, the ALJ did not abuse his discretion in denying the petition to reopen, and there is no basis for interfering with the order.
IT IS THEREFORE ORDERED that ALJ Friend’s order dated October 15, 1999, 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. 1999. 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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed March 17, 2000 to the following parties:
Ron Gatewood, 3400 Franklin St., #203, Denver, CO 80205
P/SL Healthcare System, 501 E. Hampden Ave., Englewood, CO 80110-2702
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority dba Pinnacol Assurance —
Interagency Mail (For Respondents)
Lisa A. Varriale, Esq., 600 17th St., #1600N, Denver, CO 80202
BY: A. Pendroy