W.C. No. 4-491-883.Industrial Claim Appeals Office.
March 23, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cain (ALJ) dated December 9, 2008, that denied and dismissed the claimant’s petition to reopen. We affirm.
The claimant suffered a compensable work injury in a March 17, 2000 car accident, which injured her cervical and lumbar spine. A 2005 Final Admission of Liability was filed based on a date of maximum medical improvement (MMI) of November 9, 2004. The respondents admitted to ongoing Grover medical care through authorized providers. The claimant filed a petition to reopen in 2008 alleging a worsening of condition. The ALJ determined that the preponderance of credible evidence established that although the claimant perceived a significant increase in her pain complaints, her pain complaints in 2008 were actually in the same range as reported by her when she achieved MMI. The ALJ found that the claimant failed to establish a worsening of condition, such that her claim should be reopened. Therefore, the ALJ denied and dismissed the claimant’s request for a reopening of her claim. The claimant brings this appeal.
I.
The claimant first contends that the ALJ erroneously overlooked and made no findings regarding evidence that would support a reopening of the claim. We are not persuaded that we should interfere with the ALJ’s order.
We initially note that § 8-43-303 C.R.S. 2008 authorizes an ALJ to reopen “any award” on the grounds of, among other things, error, mistake, or a change in condition.
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Heinicke v. Industrial Claim Appeals Office, 197 P.3d 220, (Colo.App. 2008); Cordova v. Industrial Claim Appeals Office, 55 P.3d 186, 189
(Colo.App. 2002). A change in condition refers either “to a change in the condition of the original compensable injury or to a change in claimant’s physical or mental condition which can be causally connected to the original compensable injury.” Chavez v. Industrial Comm’n, 714 P.2d 1328, 1330 (Colo.App. 1985); accord Anderson v. Longmont Toyota, Inc., 102 P.3d 323, 330 (Colo. 2004).
The reopening authority granted ALJs by section 8-43-303 “is permissive, and whether to reopen a prior award when the statutory criteria have been met is left to the sound discretion of the ALJ.”Cordova, 55 P.3d at 189. The party seeking reopening bears “the burden of proof as to any issues sought to be reopened.” Section 8-43-303(4), C.R.S. 2008. In the absence of fraud or clear abuse of discretion, the ALJ’s decision concerning reopening is binding on appeal. Jarosinski v. Indus. Claim Appeals Office, 62 P.3d 1082, 1084 (Colo.App. 2002). An abuse of discretion occurs when the ALJ’s order is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law Id.
Here the ALJ made the following findings of fact with record support. Dr. Sabin testified that because the claimant’s principal diagnosis was myofascial pain without identification of any specific pain generator, it is reasonable to expect the claimant’s symptoms to wax and wane. Tr. 36-42. Dr. Sabin further testified that it is reasonable to expect the claimant to experience “exacerbations” of her pain, but the mere exacerbation of pain does not require the conclusion that the claimant is no longer at MMI. Tr. at 42-43. Dr. Sabin testified that there was no real objective evidence that the claimant’s condition had changed since she was put at MMI, that she remained at MMI, and that she needed maintenance care. Tr. at 44. The ALJ credited medical reports showing that although the claimant subjectively believed her symptoms had become worse since she was placed at MMI, she has consistently reported pain in the range of 5 to 7 on a scale of 10, both before and after MMI. Support for this finding can be found in the following exhibits. Exhibit 9 at 12; Exhibit C at 19, 21-22; Exhibit 11 at 5; Exhibit 18 at 6.
In our view, the above constitutes substantial evidence supporting the ALJ’s ultimate conclusion that the claimant failed to prove that she sustained a worsened condition that would warrant reopening. Therefore, we perceive no abuse of discretion that would justify setting the ALJ’s order aside.
Further, regarding the evidence the claimant argues that the ALJ overlooked, we note that the existence of evidence which, if credited, might support a determination contrary to that reached by the ALJ does not afford us grounds to grant appellate relief. Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d. 28
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(1963). The ALJ is not required to cite or discuss every piece of evidence before crediting evidence to the contrary. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48
(1970). Rather, as expressly recognized by the ALJ, evidence not cited is implicitly rejected as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Therefore, we perceive no reversible error in the ALJ’s order because some of the evidence the claimant relied on was not expressly noted in the ALJ’s order.
In addition we disagree that the ALJ ignored certain evidence as contended by the claimant. The claimant argues that the ALJ ignored her evidence that she had received more prescriptions. We disagree. The ALJ specifically found that the claimant testified that her medications had changed frequently prior to the November 2008 hearing, but she also testified that it was not uncommon over the entire eight-year history of her claim to have her prescriptions changed. Finding § 21 at 4.
The claimant argues that the ALJ ignored her evidence that she had more conditions that are degenerative. We again disagree and note that the ALJ made several findings regarding the claimant’s multi-level degenerative joint disease. Findings § 13-§ 16. These findings are supported by the medical records of Dr. Wong. Exhibits 12, 16.
The claimant argues that the ALJ ignored her claim that she had more doctor-approved time off from work and more restrictions, which showed a worsening of her condition. However, the ALJ specifically concluded that he was not persuaded that the claimant’s decision to stop working was more than a personal decision based on her reaction to her symptoms, and was certainly not credible and persuasive evidence that the claimant’s condition was in fact worsened. Finding § 29 at 7. As noted above the ALJ, credited medical record that showed that, although the claimant may have experienced a subjective worsening of her condition, her overall complaints and symptoms had not significantly changed.
II.
The claimant next contends that the ALJ erroneously required the claimant to prove beyond the preponderance of the evidence that she suffered a worsened condition that justifies reopening the claim. We are not persuaded that the ALJ imposed an incorrect burden of proof.
We first note that the ALJ described the first issue for hearing as whether the claimant proved by a preponderance of evidence that she suffered a worsening of condition that would justify reopening the claim. The ALJ described the second issue for hearing as whether the claimant proved by a preponderance of the evidence entitlement to Botox injections.
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Further in his conclusions of law, in our view, the ALJ set forth the correct legal standard by stating the claimant has the burden of proving entitlement to benefits by a preponderance of the evidence and a preponderance of the evidence is that which leads the trier of fact, after considering all of the evidence, to find that a fact is more probably true than not. Page v. Clark, 197 Colo. 306, 592 P.2d 792
(1979). The ALJ concluded that the claimant failed to meet her burden of establishing a worsened condition. We perceive no error in the ALJ’s application of the burden of proof.
Because we have affirmed the ALJ’s decision not to reopen the case it is unnecessary to address the remaining argument of the claimant that if the claim is reopened, did she prove by a preponderance of the evidence that Botox injections constitute reasonable and necessary medical treatment to cure and relieve the effects of the injury.
IT IS THEREFORE ORDERED that the ALJ’s order issued December 9, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
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TEBBIE MacLAUGHLIN/KRAMER, HENDERSON, CO, (Claimant), CAPITAL PACIFIC HOLDINGS, C/O: CAPITAL PACIFIC HOMES, NEWPORT BEACH, CA, (Employer), ACE PROPERTY AND CASUALTY INS. CO., Attn: SANDRA SHEFMAN, C/O: ESIS, PORTLAND, TAMPA, FL, (Insurer), JACK KINTZELE, Attn: ATTORNEY AT LAW, C/O: JACK KINTZELE, ESQ., DENVER, CO, (For Claimant).
CLIFTON, MUELLER BOVANRICK, PC, Attn: ERICA A. WEBER, ESQ., DENVER, CO, (For Respondents).
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