W.C. No. 4-637-580.Industrial Claim Appeals Office.
January 28, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated September 3, 2010, that denied and dismissed the claimant’s request to reopen his Workers’ Compensation claim. We affirm.
The claimant sustained an admitted industrial injury to his right shoulder on June 21, 2004. The claimant underwent surgery on his right shoulder in the form of a superior labral tear from anterior to posterior (SLAP) tear. The authorized treating physician placed the claimant at maximum medical improvement (MMI) and assigned the claimant a 13 percent scheduled impairment. The respondents filed a Final Admission of Liability (FAL) based on that report. The FAL was not challenged.
On April 29, 2010 the claimant filed a Petition to Reopen his claim asserting that he suffered a change in condition to his right shoulder after he reached MMI. The ALJ determined that the claimant’s underlying osteoarthritis may have been aggravated by his June 21, 2004 industrial incident but it would be speculative to attribute his ongoing symptoms to that event. Instead the ALJ found the persuasive evidence demonstrated that the claimant’s continuing symptoms constituted the natural progression of his underlying right shoulder osteoarthritis. Thus the ALJ concluded that the claimant had failed to demonstrate that any worsening of his condition was related to his June 21, 2004 industrial injury. The claimant brings this appeal.
Section 8-43-303, C.R.S., permits a claim to be reopened based upon “a change in condition.” 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
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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. 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 the testimony of a witness unless, in extreme circumstances, the testimony is overwhelmingly rebutted by such hard, 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).
Here, the petition to review contains only general allegations of error, derived from § 8-43-301(8) C.R.S. Moreover, the claimant has not filed a brief in support of his petition to review and, therefore, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo. App. 1986).
The case involved contrasting medical opinions. Dr. Price testified that the claimant’s continued right shoulder pain was related to his June 21, 2004 industrial injury because he did not have shoulder problems prior to the incident and had experienced progressive symptoms. However, the ALJ was persuaded by Dr. Lindberg’s testimony that the claimant had remained at MMI because any worsening of his right shoulder condition was caused by the natural progression of his osteoarthritis. Dr. Lindberg also explained that the proposed total right shoulder replacement would be a disaster and that any surgical procedure was doomed to failure because of the claimant’s continued use of narcotic pain medications.
In our view the report of Dr. Lindberg constitutes substantial evidence supporting the ALJ’s conclusion that the claimant’s continuing symptoms constituted the natural progression of his underlying right shoulder osteoarthritis and that the claimant had failed to demonstrate any worsening of his condition related to his industrial injury. Exhibit I. Therefore we must uphold the ALJ’s determination. Section 8-43-301(8), C.R.S. We are not persuaded to interfere with the discretion of the ALJ in refusing to reopen the claim.
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IT IS THEREFORE ORDERED that the ALJ’s order dated September 3, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksiun
____________________________________ Thomas Schrant
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MITCH PETERS, 493 OL’SUND DRIVE, GRAND JUNCTION, CO, (Claimant) DUCEY’S ELECTRIC, RANGELY, CO, (Employer) PINNACOL ASSURANCE, Attn: HARVEY D. FLEWELLING, ESQ., DENVER, CO, (Insurer).
RITSEMA LYON — DENVER, Attn: KELLY F. KRUEGEL, ESQ., DENVER, CO, (For Respondents).
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