W.C. No. 4-430-639.Industrial Claim Appeals Office.
September 28, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which denied and dismissed claimant’s petition to reopen his claim. We affirm.
The ALJ’s pertinent findings of fact are as follows. Claimant worked for employer as manager of its bar and nightclub from 1992 until he quit on April 11, 2001. Claimant sustained an admitted hearing loss from exposure to loud music and noise as a result of his prolonged exposure while working in nightclubs.
In 1996 claimant’s personal care physician referred him to Audiologist Edward J. Jacobson, Ph.D., for persistent auditory/vestibular symptoms. Dr. Jacobson performed audiometric testing at that time.
Ultimately a Division-sponsored independent medical examination (DIME) physician opined that claimant reached maximum medical improvement on November 8, 1999, with 5 percent whole person impairment. The insurer filed a Final Admission of Liability admitting liability based upon 5 percent whole person impairment. The claim was closed following a January 2001 order which denied permanent total disability benefits but granted an award of future medical benefits.
On August 18, 2004 claimant filed a Petition to Reopen his claim, alleging a change in medical condition. Claimant based his Petition upon a report from Otolaryngologist Alan Lipkin, M.D. who rated the claimant’s permanent medical impairment as 15 percent of the whole person.
The ALJ credited the testimony of Dr. Jacobson who persuasively analyzed claimant’s noise exposure at employer based upon the history he obtained, past testing of noise exposure at employer and the claimant’s prior testimony. The ALJ accepted Dr. Jacobson’s opinion that the claimant’s progressive hearing loss between 1999 and August of 2004 was multi-factorial, and unrelated to his exposure to noise at employer after November 8, 1999. The ALJ was unpersuaded by Dr. Lipkin’s higher impairment rating relied upon by claimant to show his condition had worsened, finding the rating reflected a difference in medical opinion concerning the appropriate rating of claimant’s impairment as of November 8, 1999.
On review claimant argues that the findings of fact and the conclusions of law made by the ALJ are inadequate, and that the findings are not supported by the record. We disagree.
Under the statutory provisions currently codified at § 8-43-303, C.R.S. 2005, the claimant is precluded from receiving further benefits after a claim is closed, unless there is an order reopening the claim on the grounds of error, mistake, or change of condition. See Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991).
To open a claim based upon a change, the claimant must prove a change in his physical or mental condition which is causally-related to the industrial injury. Further, the change of condition must warrant additional benefits. Whether the claimant has sustained his burden of proof on these issues involves issues of fact for determination by the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002); Richards v. Industrial Claim Appeals Office, 996 P.2d 756
(Colo.App. 2000).
Because reopening is discretionary with the ALJ, we may not interfere unless an abuse of discretion is shown. Renz v. Larimer County School District, 924 P.2d 1177 (Colo.App. 1996). 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 unsupported by the evidence. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001). Thus, we must uphold the ALJ’s resolution if supported by substantial evidence. Section 8-43-301(8), C.R.S. 2005. This standard of review requires us to view 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. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). In this regard, we note it is the ALJ’s province to resolve conflicts between medical experts. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
Although the record contains some medical evidence which might support a contrary result, the ALJ’s reliance on Dr. Jacobson’s testimony supports the order on the issue of reopening. Consequently, the existence in the record of conflicting testimony or evidence does not provide a basis for setting aside the ALJ’s order. Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo.App. 1999).
However, the claimant asserts the ALJ should not have allowed Dr. Jacobson to testify as an expert witness because Dr. Jacobson is an audiologist, not a medical doctor. We reject this argument.
An expert is an individual who, as a result of knowledge, skill, experience, training, or education, possesses specialized knowledge which will assist the trier of fact to understand the evidence or determine a fact in issue. Sims v. Industrial Claim Appeals Office, 797 P.2d 777
(Colo.App. 1990) An ALJ has wide discretion in determining whether a person is qualified to testify as an expert, and we may not interfere with the ALJ’s decision unless a clear abuse has been shown. People v. Williams, 790 P.2d 796 (Colo. 1990).
Dr. Jacobson testified that he has a Ph.D. in clinical diagnostic audiology. He is a fellow of the American Academy of Audiology, a diplomate of the American Board of Forensic Medicine, and a fellow of the American College of Forensic Examiners Internationally. His Curriculum Vitae also lists many other qualifications. Furthermore, Dr. Lipkin endorsed Dr. Jacobson’s medical expertise. Under these circumstances, we cannot say the ALJ abused his discretion in qualifying Dr. Jacobson as an expert, and in allowing him to testify concerning the disputed issue of the claimant’s hearing condition.
The claimant’s remaining arguments have been considered and do not alter our conclusions. The respondents’ filed a motion to strike or bifurcate hearing issues. Over claimant’s objection this motion was granted by Order of December 23, 2004 and the issues of permanent total disability and permanent partial disability were stricken from the claimant’s hearing application. The claimant contends the Order of bifurcation was an unconstitutional denial of due process and denial of access to the courts.
The ALJ’s determination that the claimant failed to prove grounds to reopen the claim bars the claimant’s recovery of any further benefits including benefits for permanent total and permanent partial disability, unless and until the claimant establishes grounds to reopen the claim. Accordingly, the claimant had no right to litigate the issues of permanent total and permanent partial disability regardless of the bifurcation order. Consequently, the claimant’s due process rights were not violated by the ALJ’s refusal to hear those issues at the hearing on the petition to reopen.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 20, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ Kathy E. Dean
____________________ Tom Schrant
Charles Persichitte, Lakewood, CO, Brewski’s Pub and Grill, Inc., Legal Department, Pinnacol Assurance — Interagency Mail, Jack Kintzele, Esq., Denver, CO, (For Claimant).
Douglas P. Ruegsegger, Esq. and Michele Stark Carey, Esq., Denver, CO, (For Respondents).