W.C. No. 4-206-067Industrial Claim Appeals Office.
February 14, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Corchado (ALJ) which denied her petition to reopen. We affirm.
In October 1993, the claimant suffered an admitted left knee injury at EGG Rocky Flats Inc. (Rocky Flats). The claimant left Rocky Flats shortly after the injury for reasons unrelated to the injury. The claimant subsequently held several employments.
The left knee injury was treated by Dr. Tramutt who diagnosed a MCL tear and arthritis. Dr. Tramutt also noted the claimant was overweight. On June 6, 1994, Dr. Tramutt discharged the claimant from treatment and released her to return to work without restrictions. The claim was subsequently closed pursuant to the respondents’ filing of an uncontested Final Admission of Liability.
In 1995, the claimant returned to Dr. Tramutt with complaints of right knee pain. In December 1996, Dr. Tramutt treated the claimant for bilateral knee pain.
In 1998 the claimant petitioned to reopen the claim and alleged a worsening of her condition from the 1993 injury. In support, the claimant relied on the opinions of Dr. Tramutt who performed a total left knee replacement in February 1999.
In denying the petition to reopen, the ALJ found the claimant has severe arthritis and has been at least 70 pounds overweight during the years following the 1993 injury. The ALJ also found the condition of the claimant’s left knee was substantially aggravated during her employment subsequent to leaving Rocky Flats. Consequently, the ALJ determined the claimant’s knee problems were caused by her long history of obesity, her preexisting arthritis and her employment activities after 1993, and not the 1993 injury.
On review the claimant contends the ALJ erroneously ignored Dr. Tramutt’s testimony that the total left knee replacement was “more probable than not” necessitated by the 1993 injury. Further, the claimant argues there is no evidence to refute Dr. Tramutt’s opinion that the claimant’s worsened condition is causally related to the 1993 injury. Therefore, the claimant contends the ALJ was compelled to grant the petition to reopen . We reject these arguments.
Section 8-43-303(1), C.R.S. 2000, authorizes the ALJ to reopen a claim on the ground of a change in condition within six years of the injury. A “change in condition” refers to a change which is causally connected to 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 ALJs determination in the absence of fraud or an abuse of discretion. Brunetti v. Industrial Commission, 670 P.2d 1246
(Colo.App. 1983). The standard on appeal of 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).
In determining whether the ALJ’s findings of fact are supported by the evidence, we must defer to the ALJ’s credibility determinations, and the probative weight he afforded the evidence found persuasive. ee Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). The claimant concedes expert medical evidence is neither required nor determinative of the cause of a condition. Rockwell International v. Turnbull, supra. Furthermore, the ALJ was not required to credit expert medical evidence, even if uncontroverted. Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981). Neither is the ALJ required to explicitly cite the expert medical evidence before rejecting it or explain the reasons he was unpersuaded by the medical testimony Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo.App. 1988); Wells v. Del Norte School District C-7, 753 P.2d 770 (Colo.App. 1987). To the contrary the ALJ was only required to make findings on the evidence he found persuasive and determinative. General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994).
Contrary to the claimant’s contention, Dr. Tramutt’s opinion that the left knee replacement was the proximate result of the 1993 injury was not uncontroverted. In fact, Dr. Tramutt’s own testimony is subject to conflicting inferences. Dr. Tramutt testified that the worsening of the claimant’s left knee was attributable to “just a normal course of events, a combination of weight, the cartilage damage that she had. It was going to progress, probably no matter.” (Tramutt depo. p. 10). Dr. Tramatt also opined that a person, such as the claimant, who has a 20 year history of obesity can expect degenerative changes in both knees and that the degenerative changes can be aggravated by prolonged walking and sitting. (Tramutt depo. pp. 17, 26).
The record alos contains substantial evidence to support the ALJ’s finding that the claimant’s condition from the left knee injury was substantially aggravated by the walking activities required of her employment subsequent to leaving Rocky Flats. The claimant admitted that her left knee worsened while working for the International Arabian Horse Association (IAHA) in the Spring of 1994, and that her employment at IAHA required more walking than her job duties at Rocky Flats. (Patterson depo. p. 53). She added that her subsequent employment at Vari-L was more physically demanding than all her prior employments except IAHA. (Patterson depo. pp. 34, 40). Even Dr. Tramutt recognized that some of the claimant’s job duties after 1993 were tougher on her knees than others.” (Tramutt depo. p. 27).
Furthermore, the claimant did not report any right knee pain at the time of the 1993 injury. In fact, Dr. Tramutt’s records indicate that on July 13, 1995, the claimant reported a history right knee pain for a “few months” with the left knee “still doing well.” Dr. Tramutt’s also admitted that he did not exam the claimant for bilateral knee pain until December 1996, which was two and one-half years after the industrial injury. (Tramutt depo. pp. 15, 16). Under these circumstances, we cannot say Dr. Tramutt’s testimony compelled the ALJ to find a causal connection between the claimant’s worsened condition and the 1993 left knee injury.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 16, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
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 February 14, 2001 to the following parties:
Linda Patterson, 11028 Lambert Ln., Northglenn, CO 80234
EG G Rocky Flats, P. O. Box 464, Golden, CO 80402-0464
Liberty Mutual Insurance Company, 13111 E. Briarwood Ave., Englewood, CO 80112
Peter H. McGuire, Esq., 1325 S. Colorado Blvd., #405, Denver, CO 80222 (For Claimant)
Scott M. Busser, Esq., 300 S. Jackson St., #570, Denver, CO 80209 (For Respondents)
International Arabian Horse Association, 10805 E. Bethany Dr., Aurora, CO 80014
Legal Department, Colorado Compensation Insurance Authority d/b/a Pinnacol Assurance —
Interagency Mail (For International Arabian Horse Association)
Douglas L. Stratton, Esq., 999 18th St., #3100, Denver, CO 80202 (For International Arabian Horse Association)
Vari L Company, Inc., 4895 Peoria St., Denver, CO 80239
Fremont Compensation Insurance Group, 1471 Shoreline Dr., #200, Boise, ID 83702
Patricia Jean Clisham, Esq., 1200 17th St., #1700, Denver, CO 80202 (For Vari L Company, Inc. and Fremont Compensation Insurance Group)
CEI Automation, 563 Sable Blvd., Aurora, CO 80011-0808
Travelers Indemnity Co., 7600 E. Orchard Rd., #200N, Englewood, CO 80111
Julie D. Swanberg, Esq. and Kevin L. Flynn, Esq., P. O. Box 5148, Denver, CO 80217-5148
(For CEI Automation and Travelers Indemnity Co.)
Federal Insurance Company, Chubb Group of Insurance Companies, 9155 E. Nichols Ave., #100, Englewood, CO 80112-3497
Pacific Indemnity Company, Chubb Group of Insurance Companies, 9155 E. Nichols Ave., #100, Englewood, CO 80112-3497
Travelers, P. O. Box 173762, Denver, CO 80217-3712
E. W. Scripps, Robert H. Coate, Esq., 950 17th St., #2100, Denver, CO 80202
Baker Hostetler, LLP, 303 17th St., #1100, Denver, CO 80203-1264
Katherine Markheim Lee, Esq., 1700 Broadway, #1900, Denver, CO 80290-1901
(For Baker Hostetler, LLP and Pacific Indemnity Company)
BY: A. Pendroy