W.C. No. 4-470-775.Industrial Claim Appeals Office.
October 19, 2006.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cain (ALJ) dated March 30, 2006 that denied and dismissed the petition to reopen. We affirm.
The ALJ’s pertinent findings of fact are as follows. In July 1999 the claimant sustained an admitted low back injury while employed as a bus driver. On May 31, 2000 Dr. Fillmore placed the claimant at maximum medical improvement (MMI) and assessed the claimant as having a 15 percent whole person impairment. The respondents filed a Final Admission of Liability (FAL) admitting for permanent partial disability benefits based on Dr. Fillmore’s impairment rating and for medical treatment after MMI based on Dr. Fillmore’s recommendation of “periodic medication rechecks.”
On July 25, 2001 Dr. Fall saw the claimant, who reported his condition was getting worse and stated he did not want physical therapy, injections or surgery, but more Ultram, an “inversion table” and “two to three weeks off for medical leave.” Dr. Fall opined that her examination of July 25, 2001 did not appear different than the examination performed by Dr. Fillmore on May 31, 2000. Dr. Fall stated the claimant remained at MMI.
On December 11, 2001 Dr. Watson performed an independent medical examination (IME) on the claimant and reported that the claimant’s symptoms were ongoing and at least subjectively worsening. Dr. Watson opined the claimant was no longer at MMI. and “may perhaps be worsening.” On August 10, 2004 Dr. Quick performed an IME and opined the diagnosis of the claimant was uncertain because the claimant had not undergone an MRI or EMG testing. Dr. Quick opined the claimant’s physical impairment had worsened.
Dr. Fall again examined the claimant on January 24, 2005 and reported there was no objective evidence that the claimant’s condition had changed since MMI or the last examination in July 2001. Dr. Jacobs examined the claimant on August 12, 2005 and agreed with Dr. Fillmore’s 15 percent rating and date of MMI and concurred with Dr. Fall’s opinion that the claimant’s “status regarding his back has not changed.” The claimant testified that after June 2000 his back pain increased and he was less able to move than before.
In the absence of an abuse of discretion, we may not disturb the ALJ’s determination that the claimant failed to sustain his burden of proof to reopen the claim. Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986). The standard on review of an alleged abuse of discretion is whether the ALJ’s order exceeds the bounds of reason, as where it is contrary to the applicable law or unsupported by the evidence. 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).
Further, the party asserting error has the burden to present a record sufficient to prove the ALJ’s findings are not supported by the evidence. If the appealing party fails to provide an adequate record, we must presume the ALJ’s pertinent findings of fact are supported by substantial evidence. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).
Here, the claimant has not provided a transcript of the December 1, 2005 hearing. Therefore, we must uphold the ALJ’s finding, based on what he found to be the persuasive evidence that the claimant failed to prove his injury-related industrial condition worsened so as to warrant reopening. Nova v. Industrial Claim Appeals Office, supra. The ALJ’s findings are sufficient to permit appellate review and the ALJ resolved conflicts in the evidence based upon weighing of the evidence and his credibility determinations. Further, the finding supports the conclusion the claimant failed to establish entitlement to a reopening. Accordingly, we perceive no basis on which to disturb the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 30, 2006 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ John D. Baird
____________________ Thomas Schrant
Doug Gruendl, Fort Morgan, CO, ATC/Vancom of Colorado, LP, Twin City Fire Insurance, Houston, TX, Ritsema Lyon, P.C., Kyle L. Thacker, Esq., Denver, CO, (For Respondents).
Bonner E. Templeton, Esq., Denver, CO, (For Claimant).