W.C. No. 3-974-933Industrial Claim Appeals Office.
November 12, 1998
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Gandy (ALJ) which denied his petition to reopen. We affirm.
The claimant suffered an admitted injury on June 28, 1989, from a chemical exposure which aggravated his pre-existing contact dermatitis. Thereafter, the claimant was treated by Dr. Van Schooneveld for chronic contact dermatitis manifesting “flare-ups” of rashes and blisters. The claim was closed following an order dated August 24, 1994, which awarded maximum permanent partial disability benefits.
In 1997, the claimant petitioned to reopen the claim on grounds that his medical, psychological and vocational condition from the industrial injury had worsened, and requested additional medical benefits. Further, the claimant alleged that the worsened condition rendered him unable to work. Therefore, the claimant requested permanent total disability benefits.
Based upon the evidence presented at a hearing March 31, 1998, the ALJ found that the claimant suffers from chronic contact dermatitis which began in 1981, and manifests a pattern of “flare-ups” and remission. The ALJ also found that the claimant’s 1998 testimony concerning his condition is essentially the same as the testimony he gave in July 1994, when he was awarded permanent partial disability benefits. Therefore, the ALJ determined the claimant failed to sustain his burden to prove by a preponderance of the evidence that he suffered a worsening of condition from the industrial injury.
On review the claimant contends the ALJ’s findings of fact are inconsistent with the evidence, and that the findings of fact do not support the ALJ’s conclusions of law. The claimant contends that Dr. Schooneveld’s reports reflect an increase in the frequency and severity of the contact dermatitis “flareups” since 1994. The claimant also contends that he was not diagnosed and treated for depression until January 1996. Further, the claimant relies on Dr. Mark Litvin’s July 17, 1997 report which concluded that the claimant is permanently and totally disabled. We perceive no error.
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 ALJ’s 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 which he found persuasive. See Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Furthermore, insofar as the evidence is subject to conflicting inferences we are bound by the ALJ’s plausible inferences from the evidence. See Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995).
On March 11, 1998, the claimant admitted that he experienced daily contact dermatitis in 1994 and that he continues to experience daily contact dermatitis. (Tr. p. 15). The claimant also admitted that he began suffering from depression prior to July 1994. (Tr. p. 25). Under these circumstances, we reject the claimant’s contention that Dr. Van Schooneveld’s reports compel the finding of a worsened condition.
We also note that the claimant did not provide a transcript of the July 1994 hearing. See Amended Petition to Review April 14, 1998. Consequently, we must presume the ALJ’s factual determinations concerning the claimant’s 1994 testimony are supported by substantial evidence in the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).
In any case, the claimant admitted that his 1994 testimony was essentially the same as his 1998 testimony. (Tr. pp. 15). The claimant stated that the rashes and blisters produced by the contact dermatitis have continuously appeared since July 1994 and that he is “pretty much” the same as he was in 1994. (Tr. pp. 6, 20). Moreover, the claimant did not present evidence of any new medical restrictions. Consequently, the claimant’s testimony supports the ALJ’s finding that the claimant failed to establish a change in his physical condition.
Similarly, the ALJ’s findings are consistent with the deposition testimony of Dr. Huff and Dr. Van Schooneveld. In fact, Dr. Huff stated that his 1994 and 1996 examinations of the claimant produced “very much similar findings” (Huff depo p. 16).
Moreover, the ALJ correctly recognized that a change in vocational status is not sufficient to reopen a claim. See Lucero v. Climax Molybdenum Co., 732 P.2d 642 (Colo. 1987); Ward v. Ward, 928 P.2d 739 (Colo.App. 1996); Loucks v. Safeway Stores, 757 P.2d 639 (Colo.App. 1988). However, insofar as the claimant sought to establish a deterioration of his physical condition through evidence that his vocational capabilities have worsened, there is substantial evidence to support the ALJ’s determination that the claimant failed to sustain his burden of proof.
It is undisputed that in July 1994 vocational rehabilitation expert, Anthony Manuele opined the claimant suffered at least a 90 percent loss of access to the labor market as a result of the industrial injury. The claimant admitted that in July 1994 he testified that he was unable to work as a result of the contact dermatitis. (Tr. pp. 15). The claimant also stated that he did not conduct a job search between July 1994 and October 1997. (Tr. p. 15).
Furthermore, Dr. Litvin relied upon Mr. Manuele’s opinion, and the claimant’s self-report of his limitations to conclude the claimant is permanently and totally disabled. Under these circumstances, the ALJ could, and did, reasonably infer that Dr. Litvin’s 1998 opinion concerning the claimant’s employability would have been the same in 1994, and this finding supports the ALJ’s order denying the petition to reopen.
However, the claimant asserts that the ALJ should have awarded additional medical benefits because Dr. Schooneveld testified that all medical treatment he has provided the claimant since maximum medical improvement is reasonable and necessary to relieve the industrial injury. Because the ALJ found the claimant failed to establish grounds to reopen the claim, Dr. Schooneveld’s opinion of the reasonableness of the claimant’s treatment since 1994, is alone insufficient to support an award of ongoing medical benefits. Section 8-43-303 C.R.S. 1998; Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988); Milco Construction v. Cowan, 860 P.2d 539 (Colo.App. 1992).
IT IS THEREFORE ORDERED that the ALJ’s order dated March 31, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
NOTICE This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed November 12, 1998
to the following parties:
Randy G. Richardson, 515 N. 3rd Ave., Sterling, CO 80751
Deb Carlock, Workers Compensation Coordinator, Excel Corporation, C.S. 4100, Fort Morgan, CO 80701
Stacy Strickland, Crawford Co., P.O. Box 6502, Englewood, CO 80155-6502
Allen J. Kincaid, Esq., Jennifer W. Gruidel, Esq., 6312 S. Fiddler’s Green Cr., #270 N, Englewood, CO 80111 (For the Claimant)
Tama L. Levine, Esq., 1515 Arapahoe St., Tower 3 #600, Denver, CO 80202 (For the Respondent)
BY: ______________________