W.C. No. 4-280-423Industrial Claim Appeals Office.
July 1, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied and dismissed a petition to reopen. The claimant contends the ALJ’s findings of fact compel the conclusion that there was a worsening of condition warranting an award of temporary disability benefits. We affirm the denial of benefits.
The claimant sustained a compensable injury to her upper extremities, neck and back. On October 15, 1997, a treating physician, Dr. Ridings, placed the claimant at maximum medical improvement (MMI) with diagnoses including right lateral epicondylitis and chronic myofascial pain syndrome. At the time of MMI Dr. Ridings placed permanent limitations on the claimant’s use of the right upper extremity and restricted her to the light to sedentary work category. Dr. Ridings also recommended continuing medical treatments, including injections and physical therapy, to “maintain the claimant at her current level, rather than in further treatment of the [claimant’s] diagnoses.” (Report of Dr. Ridings, October 20, 1997; Finding of Fact 3).
The respondents filed a Final Admission of liability on July 23, 1998, in which they admitted liability for continuing medical benefits after MMI. Thereafter, the claimant complained of increasing symptoms on several occasions, including February 1999, February 2000, and November 2000. Throughout this period Dr. Ridings provided conservative treatment, rejected the claimant’s requests for certain types of treatment, and opined the claimant remained at MMI. (E.g., handwritten note of Dr. Ridings dated October 17, 2000; Report of November 13, 2000). As the ALJ found, there is no evidence that Dr. Ridings ever increased the claimant’s restrictions beyond those which existed at MMI. On November 16, 2000, Dr. Ridings referred the claimant to Dr. Hall to continue the claimant’s “maintenance care.”
Dr. Hall examined the claimant on January 2, 2001, and “questioned” whether the claimant remained at MMI. However, Dr. Hall also stated the claimant’s pain problems are chronic and indicated treatment cannot “cure” the claimant.
Implicitly crediting the opinions of Dr. Ridings and the corroborating testimony of Dr. Brunworth, the ALJ found the claimant failed to prove a change of condition, and failed to demonstrate any increase in disability since reaching MMI in 1997. Specifically, the ALJ found the claimant suffers from a chronic myofascial pain syndrome which is “subject to flare-ups.” However, the ALJ concluded the flare-ups do not prove the claimant’s condition is “significantly different” than when she reached MMI, or that she has sustained any increased disability. Consequently, the ALJ denied the petition to reopen.
On review the claimant argues the ALJ’s findings of fact compel the conclusion that the condition worsened. Specifically, the claimant argues the ALJ’s finding that the claimant experienced “flare-ups” in her symptoms is synonymous with a “change in condition” which could support reopening an award under § 8-43-303(1), C.R.S. 2001. The claimant further asserts the ALJ misapplied the law because a change of condition need not be “significant” to justify reopening. We find no error.
For purposes of § 8-43-303, a change in condition refers to a change in the claimant’s mental or physical condition. Cordova v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA0852, February 28, 2002); Chavez v. Industrial Commission, 714 P.2d 1328
(Colo.App. 1985). Further, reopening is discretionary with the ALJ, and we may not interfere with the ALJ’s decision absent an abuse of discretion. Cordova v. Industrial Claim Appeals Office, supra. 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 not supported by substantial evidence. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867
(Colo.App. 2001).
The ALJ’s pertinent findings of fact must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. This standard of review requires that we consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Further, the ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law as long as the order is sufficient to reveal its legal and factual bases. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Here, the ALJ found on substantial evidence that when the claimant was placed at MMI in 1997 it was fully anticipated she could expect her chronic pain condition to result in occasional “flare-ups” necessitating increases in palliative treatment. Indeed, in his report of October 20, 1997, Dr. Ridings stated the claimant “will require ongoing physician visits relating to exacerbations of her upper extremity diagnoses and cervical myofascial pain.” The opinion that the claimant’s permanent condition will cause periodic exacerbations which require increases in maintenance treatment was corroborated by Dr. Brunworth. (Tr. pp. 28-29, 40). However, neither Dr. Ridings nor Dr. Brunworth considered the exacerbations of the claimant’s symptoms or the consequent need for additional treatment to constitute evidence the claimant’s physical condition had changed since she reached MMI. Put another way, both of these physicians were convinced the claimant’s condition was stable and that nothing in the way of medical treatment had a reasonable prospect for improving her condition. Section 8-40-201(14), C.R.S. 2001.
Thus, the record supports the ALJ’s factual finding that the occurrence of the “flare-ups” did not represent any change in the claimant’s overall condition since she was placed at MMI. Rather, the exacerbations reflect the expected course of the claimant’s permanent condition. It follows the ALJ was not compelled to find a change of condition, and the record supports the ALJ’s finding that the claimant failed to establish the base requirement for granting a petition to reopen. See Cordova v. Industrial Claim Appeals Office, supra (claimant bears burden of proof to establish grounds to reopen). Therefore, the ALJ did not abuse his discretion in denying the petition to reopen.
Neither do we consider the ALJ’s references to “substantial” changes in condition as representing a misapplication of the law. Rather, in our view, the ALJ used the term “substantial” in the sense of a change in condition which would be legally sufficient to justify a reopening. In contrast, the ALJ found the “flare-ups” to be insubstantial because they do not represent any actual change in the claimant’s condition, but rather were the expected fluctuations in the condition.
The claimant also argues the ALJ confused the concepts of MMI and worsening of condition. However, where the claimant seeks only additional temporary disability benefits, the claimant must show the alleged worsening of condition resulted in deterioration such that the claimant was no longer at MMI. This is true because temporary benefits may not be awarded to a claimant who is at MMI. Richards v. Industrial Claim Appeals Office, 996 P.2d 756 (Colo.App. 2000).
Here, the respondents did not dispute their liability for ongoing medical benefits. As a consequence, the only benefits actually at issue were temporary total disability benefits. (Tr. pp. 6-7). Since the ALJ found on substantial evidence that the claimant remained at MMI, the ALJ correctly applied the law in denying the petition to reopen. Richards v. Industrial Claim Appeals Office, supra.
We note the claimant’s brief contains an argument based on a prior ruling of ALJ Wheelock. However, that ruling is not contained in the record, and counsel’s representations concerning that ruling do not constitute evidence. Subsequent Injury Fund v. Gallegos, 746 P.2d 71
(Colo.App. 1987). In any event, the ALJ was not required to credit Dr. Hall’s opinion insofar as it may be construed as evidence the claimant suffered a worsened condition which caused increased disability. Consequently, we have no grounds to interfere with the ALJ’s order based on this issue.
IT IS THEREFORE ORDERED the ALJ’s order dated August 14, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
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. 2001. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed July 1, 2002 to the following parties:
Gina M. Martinez, 2852 Preakness, Colorado Springs, CO 80906
Sealy Corporation, 6275 Lake Shore Ct., Colorado Springs, CO 80915-1609
Hartford Underwriters Insurance Co., _ Laurie Iverson, ITT Specialty Risk Services, 110 Woodland Pl., Park City, UT 84098
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Tama L. Levine, Esq., 999 18th St., #1755, Denver, CO 80202 (For Respondents)
By: A. Hurtado