W.C. No. 4-586-522.Industrial Claim Appeals Office.
May 3, 2006.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated October 3, 2005 that denied the claimant’s petition to reopen the claim based upon a worsened condition. We affirm.
A hearing was held on the sole issue of the claimant’s petition to reopen based upon a worsening of her condition. Following the hearing the ALJ entered factual findings that may be summarized as follows. The claimant was employed as a housekeeper and on July 17, 2003 she sustained a compensable injury to her low back when she lifted a mattress. She was examined by Dr. Ogrodnick, who diagnosed a lumbar strain and noted from her x-rays that she had degenerative spurring at several levels of her lumbar spine. He prescribed medication and imposed lifting restrictions not to exceed ten pounds with no bending. Several days later he prescribed a course of physical therapy and imposed lifting restrictions of 20 pounds with no squatting or twisting. In October 2003 an MRI was obtained, which showed degenerative disc disease with mild foraminal stenosis and a protrusion at the L4-L5 level of the lumbar spine. On December 31, 2003 Dr. Ogrodnick released the claimant to regular work, and in January, 2004 he reiterated his diagnosis of lumbar strain and determined that the claimant had reached maximum medical improvement. The ALJ found that “apparently” the claim was closed by a final admission of liability, although the document was not submitted to the ALJ at the hearing. In February 2005 the claimant was examined by Dr. Rook, who reported that her condition had worsened. In May Dr. Ogrodnick examined her and stated that she had not worsened since reaching maximum medical improvement. An MRI was obtained in July 2005, which both experts agreed disclosed no significant changes since the MRI taken in 2003. The ALJ weighed the competing medical evidence and credited the opinions of Dr. Ogrodnick that the claimant’s condition had not worsened. Based upon these findings the ALJ concluded that the petition to reopen should be denied.
The claimant appealed and contends that the ALJ’s findings are not supported by substantial evidence and that the ALJ failed to resolve conflicts in the evidence. We disagree that the ALJ committed reversible error and therefore affirm the order.
Section 8-43-303(1), C.R.S. 2005, permits a claim to be reopened based on a worsened condition. In order to reopen, the claimant bears the burden of proof to establish the worsening of a physical or mental condition which is causally related to the original industrial injury. Osborne v. Industrial Commission, 725 P.2d 1033 (Colo.App. 1986). Proof of a worsened condition is not restricted to medical evidence. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997); Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). However, the ALJ is not bound to accept the claimant’s testimony. The ALJ’s findings that claimant’s subjective complaints of a worsened condition were not persuasive and did not outweigh the objective medical evidence, are supported by substantial evidence in the record.
The ALJ is granted wide discretion in determining whether the claimant met her burden of proof, and we must uphold that determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004; Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082 (Colo.App. 2002); Richards v. Industrial Claim Appeals Office, 996 P.2d 756 (Colo.App. 2000). 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).
Under this standard of review it is the ALJ’s sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. We may not substitute our judgment for that of the ALJ unless the testimony the ALJ found persuasive is rebutted by such hard, certain evidence that it would be error as a matter of law to credit the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). Testimony which is merely biased, inconsistent, or conflicting is not necessarily incredible as a matter of law. People v. Ramirez, 30 P.3d 807
(Colo.App. 2001). The existence of evidence which, if credited, might permit a contrary result also affords no basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). Moreover, the ALJ’s order is sufficient for purposes of review if the legal and factual bases of the order are apparent from the findings of fact and conclusions of law. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Here there is ample evidence supporting the ALJ’s finding that the claimant’s condition resulting from her compensable injury had not worsened. The ALJ implicitly credited the opinions of Dr. Ogrodnick, who stated in a report dated August 15, 2005, that “[b]ased on the MRI reports, Ms. Kiker has not sustained any worsening of her back injury from work-related causes or anything else for that matter. In fact, the MRI report shows a stable condition from 2003-2005, at least objectively.” He further explained that if the claimant was complaining of subjectively worsened symptoms, they would likely be “a natural progression of the multi-segmental degenerative changes (arthritis) in her lumbar spine,” and “would not be considered work-related.” Dr. Ogrodnick testified by deposition consistently with that report, responding to counsel’s question whether it was his opinion that the claimant did not sustain a worsening of her condition by stating, “yes.” Deposition of John Ogrodnick, M.D. at 39. See also Ogrodnick Depo. at 15 (“I don’t think Ms. Kiker’s condition is worsened.”) Contrary to the claimant’s argument, Dr. Ogrodnick’s expert opinions constitute substantial evidence supporting the ALJ’s findings that the claimant’s condition had not worsened.
We also disagree with the claimant’s argument that conflicts in the evidence are not resolved. The ALJ is only required to make specific findings on evidence found persuasive and determinative, and is under no obligation to expressly cite evidence he determined to be unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra. Here, the ALJ was not persuaded by the evidence contrary to Dr. Ogrodnick’s opinions. Consequently it is immaterial that the ALJ did not cite and discuss every piece of evidence that tended to undermine or conflict with the opinions credited by the ALJ.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 3, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
Mary Kiker Clemmens, 1903 Olympic Dr., Colorado Springs, CO, Carol Pierce, Sheraton Colorado Springs Hotel, Dr., Colorado Springs, Jeff Bassett, Zurich American Insurance, Kansas City, MO, Kimball Gardner, Esq., Colorado Springs, CO, (For Claimant).
Frank M. Cavanaugh, Esq., Denver, CO, (For Respondents).