W.C. No. 4-329-861Industrial Claim Appeals Office.
March 12, 2001
FINAL ORDER
The pro se claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied and dismissed her petition to reopen based upon an alleged change of condition. We affirm.
On December 11, 1996, the claimant suffered an admitted low back injury which was treated by Dr. Reichhardt. An MRI on January 27, 1997, revealed degenerative changes, but no protruding or herniated discs. On February 27, 1997, Dr. Reichhardt placed the claimant at maximum medical improvement (MMI) with 8 percent whole person impairment. Dr. Reichhardt also imposed permanent lifting and bending restrictions. The respondents filed an uncontested Final Admission of Liability consistent with Dr. Reichhardt’s findings, and the claim was closed.
In May 1997 the claimant returned to Dr. Reichhardt with complaints of back pain. On June 5, 1997, the claimant was again treated by Dr. Reichhardt. The ALJ found the claimant reported she was “50% worse” on June 5, and that her “pain came back real bad,” after she engaged in repetitive bending and lifting during a household move. Dr. Reichhardt recommended physical therapy and reported the claimant remained at MMI.
In January 1998, the claimant was treated by Dr. Cedillo, whom the ALJ found was the claimant’s “own physician.” Dr. Cedillo opined the claimant’s exacerbated back pain was related to the 1996 injury. Relying on Dr. Cedillo’s opinions, the claimant filed a Petition to Reopen and requested additional benefits.
In January 2000, the claimant was examined by Dr. Dwyer, who diagnosed lumbar spondylosis and right trochanteric bursitis. Dr. Dwyer recommended physical therapy and an exercise program.
On May 11, 1998, the claimant was reexamined by Dr. Reichhardt. At that time, an MRI indicated an L5-S1 disc protrusion with S1 impingement. Dr. Reichhardt opined that the change in the claimant’s condition was due to a new process and not the industrial injury. Dr. Reichhardt reexamined the claimant on October 18, 2000, and again opined that the claimant’s worsened condition was not a natural consequence of the 1996 injury.
Based upon the evidence presented at a hearing on November 16, 2000, the ALJ found the claimant failed to prove a causal relationship between the industrial injury and her worsened condition. To the contrary, the ALJ found the change was more probably due to intervening work activities or the claimant’s activities of daily living. In so doing the ALJ credited the opinions of Dr. Reichhardt. Consequently, the ALJ denied and dismissed the petition to reopen. The claimant timely appealed the ALJ’s order.
Section 8-43-303(1), C.R.S. 2000 allows the ALJ to reopen a claim based on a “change of condition.” A “change of condition” refers to a change in condition caused by the original compensable injury. Chavez v. Industrial Commission, 714 P.2d 1328
(Colo.App. 1985).
The determination of whether to reopen a claim is discretionary with the ALJ. Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986). We may not disturb the ALJ’s determination in the absence of fraud or an abuse of discretion Brunetti v. Industrial Commission, 670 P.2d 1246 (Colo.App. 1983). The standard of review for an alleged abuse of discretion is whether the ALJ’s determination exceeds the bounds of reason, as where it is contrary to the evidence or the applicable law 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).
On appeal, the claimant requests a new hearing to present the testimony of Dr. Dwyer, which she contends her former attorney of record failed to present at the November 16 hearing. The claimant contends Dr. Dwyer will establish a medical connection between the industrial injury and her worsened condition.
Our authority to review the ALJ’s order is defined in §8-43-301(8), C.R.S. 2000. That statute precludes us from disturbing the ALJ’s order unless the ALJ’s findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ’s findings, the findings do not support the order, or the order is not supported by the applicable law.
Furthermore, parties are expected to present all of their evidence at the appointed hearing before the ALJ. Frank v. Industrial Commission, 96 Colo. 364, 43 P.2d 158 (1935). The record does not suggest the claimant was deprived of an opportunity to present Dr. Dwyer’s testimony. Consequently, we have no authority to set aside the ALJ’s order based upon an allegation of ineffective assistance of counsel.
In addition, our review is limited to the record before the ALJ. City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995). Therefore, we have not considered the Social Security Administration determination of disability which was attached to the claimant’s appellate brief, but was not part of the record before the ALJ.
Next, the claimant contests the ALJ’s finding that Dr. Cedillo was her “own physician.” However, the claimant has not provided a transcript of the hearing. Under these circumstances, we must assume the ALJ’s finding is supported by substantial evidence in the record. See Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).
Finally, the claimant contends that Dr. Dwyer was the “treating physician” and, therefore, his medical reports should have been given greater weight than the opinions of Dr. Reichhardt. The claimant argues this result is compelled by evidence that Dr. Reichhardt confused her with another patient. We disagree.
Admittedly, Dr. Reichhardt’s October 18 report makes one erroneous reference to the claimant as “Ms. Martinez.” However, the report repeatedly refers to the claimant as “Ms. Lovato.” In addition, the error was made in the context of a note that the claimant treated with “Dr. Martinez” for depression, and was referred to Dr. Dwyer for evaluation. It is obvious the claimant does not dispute she was examined by Dr. Dwyer. Under these circumstances, we cannot say the record compels a finding that Dr. Reichhardt mistakenly confused the claimant’s condition with another patient. Rather, the weight to be assigned the report was a credibility issue for the ALJ.
Moreover, insofar as it could be found that Dr. Dwyer was a treating physician, his opinions created a conflict with the opinions of Dr. Reichhardt. The ALJ was not required to give any special weight to the opinions of either physician. See Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998) (ALJ final arbiter of conflicting expert medical evidence); Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122
(Colo.App. 1992) (ALJ free to credit one medical opinion to the exclusion of a contrary medical opinion). However, in view of evidence that Dr. Reichhardt treated the claimant consistently after the 1996 injury, the ALJ could reasonably infer that the opinions of Dr. Reichhardt concerning the etiology of the claimant’s objective lumbar changes were more persuasive than the opinions of a physician who did not examine the claimant prior to January 2000.
We may not substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the evidence, including the medical evidence. Therefore, the claimant has failed to establish grounds which afford us a basis to grant appellate relief.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 27, 2000, 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. 2000. 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 12, 2001 to the following parties:
Mary Lovato, 05 Lang Rd., Las Lunas, NM 87031
Glenn Mickelson, United Parcel Service, 5020 Ivy St., Commerce City, CO 80022
Joellen Walter, Liberty Mutual Insurance Company, P. O. Box 168208, Irving, TX 75016-8208
John M. Connell, Esq., and Scott D. Sweeney, Esq., 1675 Larimer St., #710, Denver, CO 80203 (For Respondents)
BY: A. Pendroy