W.C. No. 4-545-460.Industrial Claim Appeals Office.
September 17, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated May 15, 2008, which denied his petition seeking to reopen his claim and obtain maintenance medical benefits. We affirm.
We previously remanded this matter for the ALJ’s further consideration after determining that the claimant’s petition to reopen due to an alleged worsening of condition was not barred by the doctrine of claim preclusion. The ALJ had determined in an earlier proceeding that the claimant’s torn rotator cuff was not causally related to the claimant’s work injury and, also, that the claimant no longer required further medical treatment to maintain maximum medical improvement. The claimant sought to reopen his claim to obtain additional medical treatment based on an alleged worsening of his condition. In support of his petition, the claimant submitted a report from Dr. Rook, which the ALJ characterized as opining that the claimant had undergone a worsening of his condition as indicated by his subjective complaints and the rotator cuff tear. The ALJ considered the issues barred by his previous determinations concerning the relatedness of the claimant’s rotator cuff tear to his work injury, together with the denial of ongoing maintenance medical benefits. We concluded that although the ALJ determined that the torn rotator cuff was not causally related to the claimant’s work injury, there still remained the question of whether the claimant’s claim should be reopened based on an alleged worsening of his condition.
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The ALJ subsequently issued his Findings of Fact, Conclusions of Law, and Order on Remand (Order). The ALJ’s findings are summarized as follows. The claimant sustained admitted industrial injuries to his right shoulder, neck, and left foot when he fell in June 2002. Dr. Steig conducted a Division-sponsored independent medical examination on January 6, 2003 and recommended an MRI of the neck. The MRI did not indicate a tear of the claimant’s right rotator cuff. Dr. Stieg placed the claimant at maximum medical improvement as of April 6, 2004 and provided an impairment rating. Another ALJ later adjusted the impairment rating and ordered the respondent insurer to pay for reasonable and necessary medical treatment after maximum medical improvement. A second MRI taken on November 7, 2005 showed a full tear of the claimant’s rotator cuff. Dr. Bergland opined that the rotator cuff tear was not causally related to the claimant’s work injury. He also opined that no further medical treatment was reasonable and necessary to maintain the claimant’s condition. According to Dr. Bergland, the cause of the claimant’s current pain is unknown. Dr. Rook opined that the claimant’s work-related condition had worsened in light of the claimant’s subjective complaints and the torn rotator cuff. The ALJ credited Dr. Bergland’s opinions and found that the claimant failed to establish that his current pain complaints were due to his work-related injury “versus his unrelated rotator cuff tear.” Order at 4, ¶ 15. The ALJ thus determined that the claimant had not been shown to have suffered a worsening of his condition due to his industrial injury after reaching maximum medical improvement and denied the claimant’s petition to reopen his claim.
Section 8-43-303, C.R.S., 2008, permits a claim to be reopened based upon “a change in condition.” The claimant has the burden of proof in seeking to reopen a claim. Richards v. Industrial Claim Appeals Office, 996 P.2d 756 (Colo.App. 2000). The power to reopen under the provisions of § 8 43-303 is permissive and left to the sound discretion of the ALJ. Consequently, we may not interfere with the ALJ’s decision unless the record reveals fraud or a clear abuse of discretion. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996) Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986). An abuse of discretion is not shown unless the ALJ’s order is beyond the bounds of reason, as where it is contrary to the law or not supported by the evidence. Rosenberg v. Board of Education of School District No. 1, 710 P.2d 1095 (Colo. 1985).
When considering the sufficiency of the evidence, we must uphold the ALJ’s factual findings if supported by substantial evidence. Section 8-43-301(8), C.R.S. 2008. This standard of review requires us to 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). We specifically note that we may not interfere with the ALJ’s decision to credit testimony unless, in extreme circumstances, the testimony is overwhelmingly rebutted by such hard,
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certain evidence the ALJ would err as a matter of law in crediting it Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000). Moreover, the ALJ is not required to credit testimony that may be viewed as uncontroverted by other evidence. Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993); Monfort, Inc. v. Rangel, 867 P.2d 122
(Colo.App. 1993).
The claimant seeks additional medical treatment for his continuing chronic pain based on changes in his condition as found by Dr. Rook. The claimant asserts on appeal that the ALJ erred in relying on Dr. Bergland’s opinions to find that the claimant had not suffered a worsening of condition warranting the reopening of his claim for additional medical benefits. According to the claimant, the ALJ erred in two respects. First, the ALJ misconstrued his position to the extent that the ALJ made findings regarding the cause of the claimant’s torn rotator cuff. The ALJ, in fact, found that Dr. Bergland opined that the rotator cuff tear is not causally related to the claimant’s work injury since the tear was not present on the earlier MRI. Order at 3, ¶ 9. This finding reiterates the ALJ’s previous determination that the claimant’s work injury did not cause his torn rotator cuff. As we previously determined, that finding does not dispose of the question whether the claim should be reopened due to an alleged worsening of the claimant’s condition. However, insofar as the ALJ understood the claimant’s argument to be that the rotator cuff tear, at least in part, caused the worsened condition, that finding is relevant. Even if not, in any event, the ALJ also addressed the question of whether the claimant’s condition worsened based upon his chronic pain and related medical reports as directed in our order of remand. In our view, a fair reading of the ALJ’s order discloses that he fully understood the scope of the remand and the additional findings and conclusions that were required by that remand. We therefore do not infer from his repetition of the determination regarding the cause of the rotator cuff tear that the ALJ misapprehended the pertinent issue on remand. While we do not decide that the ALJ’s findings regarding the causality of the claimant’s torn rotator cuff are error, even if they are error, they are at most harmless and must be disregarded. See A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988) (error which is not prejudicial will be disregarded).
The claimant further asserts that the ALJ erred by relying on Dr. Bergland’s opinions to find that the claimant had not suffered a worsening of his condition. The claimant reasons that Dr. Rook’s opinion that the claimant’s condition worsened provides the only current evidence for the ALJ’s consideration because it was not refuted by any later medical opinions. We are not persuaded that the ALJ erred in denying the claimant’s request to reopen his claim.
The claimant argues that Dr. Bergland did not render a firm opinion as to his medical condition and refers to Dr. Bergland’s testimony to the effect that whether the
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claimant’s condition worsened depends on whether the claimant’s pain was due to the rotator cuff tear or to his chronic pain since the industrial injury. When asked if any need to treat the claimant’s chronic pain is related to the claimant’s industrial injury, Dr. Bergland replied that “[i]t depends on if his pain generator is actually the tear or if his pain generator is chronic discomfort that’s been persistent and unchanged since the time of the injury.” Bergland Depo. at 26. This passage from Dr. Bergland’s testimony, standing alone, can be fairly characterized as ambiguous regarding the cause of the claimant’s continuing pain. However, Dr. Bergland provided additional testimony concerning the claimant’s need for continuing medical benefits and the cause of his medical condition.
Dr. Bergland ordered another MRI because his “physical findings did not coincide or did not support the negative finding of the previous MRI.” Bergland Depo. at 6. The second MRI revealed a rotator cuff tear. Bergland Depo. at 7. He concluded that the findings of the new MRI were not related to the claimant’s industrial injury. Bergland Depo. at 8. No documentation suggested that the claimant sustained a new injury, but the previous MRI done soon after the industrial injury did not show a tear. Thus, Dr. Bergland stated that he could not fairly relate the claimant’s surgery or need for other medical treatment to his industrial injury. Bergland Depo. at 16. Moreover, he could not “find a rational reason to be able to relate” the claimant’s need for continuing treatment to his industrial injury. Bergland Depo. at 19. Dr. Bergland further opined that a full-thickness tear of the rotator cuff could cause chronic shoulder pain. Bergland Depo. at 27.
The ALJ determined that Dr. Bergland opined that no further medical treatment was reasonable and necessary to maintain the claimant’s condition due to his work injury and, also, that the “pain generator” for the claimant’s pain is unknown. Order at 3, ¶ 10. As noted above, Dr. Bergland testified that he could find no rational reason to relate the claimant’s continuing need for treatment to the claimant’s work injury.
The ALJ reviewed several of Dr. Rook’s findings, including the claimant’s report of an increase in right shoulder pain, a “popping sensation” in the shoulder, and a weaker arm than when placed at maximum medical improvement. Concerning Dr. Rook’s opinion that the claimant’s condition worsened, the ALJ stated that “Dr. Rook does not relate how the Claimant’s subjective complaints differed from his subjective complaints at the date of [maximum medical improvement].” Order at 3, ¶ 12. The ALJ further found that the claimant’s subjective complaints reported to Dr. Rook “were no different qualitatively or quantitatively from what they were when he reached [maximum medical improvement].” The ALJ referred to previous medical findings concerning the claimant’s pain in 2004 when he was placed at maximum medical improvement. Order at 4, ¶ 12. The claimant complained of significant soft tissue pain on the date he was placed at
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maximum medical improvement. Several months later, the claimant complained of pain that he rated at 9-10. Order at 2, ¶ 4, 3, ¶ 6, and 3-4, ¶ 12. As we read the ALJ’s order, he determined that the claimant’s pain complaints as reported to Dr. Rook were not objectively different since the claimant reached maximum medical improvement. The ALJ gave the greatest weight to Dr. Bergland’s opinions. Order at 4, ¶ 13. We conclude that the ALJ’s findings of fact are supported by the evidence and that the ALJ did not abuse his discretion in denying the claimant’s petition to reopen.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 15, 2008, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_____ John D. Baird
_____ Curt Kriksciun
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JOSEPH C PELLETIER, COLO SPRINGS, CO, (Claimant).
AMERICAN PROTECTION INSURANCE CO, Attn: MYRA JELINEK, C/O: SPECIALTY RISK SERVICES, DALLAS, TX, (Insurer).
STEVEN U MULLENS PC, Attn: JAMES A MAY, ESQ., COLO SPRINGS, CO, (For Claimant).
WHITE AND STEELE. PC, Attn: TED A KRUMREICH, ESQ, C/O: DOMINION TOWERS NORTH TOWER, DENVER, CO, (For Respondents).
WHITE STELLE, Attn: MATTHEW W TILLS, ESQ., DENVER, CO, (Other Party).
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