W.C. No. 3-805-137Industrial Claim Appeals Office.
October 2, 1996
FINAL ORDER
This matter has been transmitted to us for review of an order of Chief Administrative Law Judge Felter (ALJ) which denied and dismissed the claimant’s Petition to Reopen. We affirm.
The stipulated facts reveal that the claimant suffered a compensable left knee injury in 1982. On July 29, 1991, the respondents filed a Final Admission of Liability which admitted liability for permanent partial disability benefits based upon a partial loss of use of the left leg at the knee. The claimant timely objected.
In an order dated July 21, 1994, the Director of the Division of Workers’ Compensation (Director) closed the claim for lack of prosecution. On August 11, 1994, the claimant petitioned to reopen the claim on grounds of a worsening of his condition and sought additional medical benefits and benefits for permanent total disability.
The ALJ determined that the claimant failed to sustain his burden to prove a change in his physical condition from the industrial injury. Therefore, the ALJ denied and dismissed the petition to reopen.
The claimant timely petitioned for review of the ALJ’s order and a briefing schedule has been established. Although, it is was not included in the record, the claimant states that, on June 26, 1996, he filed a petition for review of the Director’s July 21 order, and the record contains a briefing schedule governing that petition. Further, the claimant has filed a “Motion for Consolidated Resolution of Claimant’s Two Separate Petitions For Review.”
I.
The briefing period pertaining to the claimant’s petition to review the Director’s order has not expired, and thus, the statutory period provided for the Director to issue a supplemental order has not elapsed. Section 8-43-301(4), C.R.S. (1996 Cum. Supp.). We also note that the ALJ did not, and could not, transmit the matter for our review of the Director’s order Section 8-43-301(4). Under these circumstances, we lack jurisdiction to review the Director’s July 21 order because it has not been transmitted to us under § 8-43-301(7), C.R.S. (1996 Cum. Supp.). Consequently, we must deny the claimant’s motion for a “consolidated” review. See Hasbrouck v. Industrial Commission, 685 P.2d 780 (Colo.App. 1984) (limitations on administrative review are jurisdictional and jurisdiction cannot be conferred by waiver or estoppel).
As a result, we do not consider the claimant’s argument that the Director’s order is void ab initio. It follows that it is premature to consider the claimant’s contention that the claim is “open” and that no petition to reopen was required. That argument was not addressed to the ALJ and was not considered by him.
II.
Alternatively, the claimant contends that the ALJ abused his discretion in failing to reopen the claim. In support, the claimant argues that the undisputed evidence demonstrates that he has experienced degenerative changes in his left knee, and as a result requires additional medical treatment including a total knee replacement. We disagree.
The ALJ has discretion to determine whether there has been a worsening of condition sufficient to justify reopening a claim Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986). The standard of review for an alleged “abuse of discretion” is whether, under the totality of the circumstances, the ALJ’s determination “exceeds the bounds of reason.” Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985). The ALJ’s determination does not exceed the bounds of reason if it is supported by substantial evidence in the record and the applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850
(Colo. 1993); Louisiana Pacific Corporation v. Smith, 881 P.2d 456
(Colo App. 1994).
Notwithstanding the claimant’s arguments, the ALJ’s findings reflect his consideration of the applicable law. The ALJ determined that the claimant failed to demonstrate any “qualitative” change in his physical condition from the industrial injury, and that determination is supported by substantial evidence. See Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995) (substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence).
We recognize that in reaching his determination the ALJ found the claimant to be a “credible and honorable man.” However, the ALJ’s findings reflect that the probative weight the ALJ afforded the claimant’s testimony regarding the worsening of his condition was insufficient to sustain the claimant’s burden of proof, and we may not interfere with that determination. See Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993).
Further, the 1994 medical records concerning “degenerative changes” in the claimant’s left knee did not compel the ALJ to reopen the claim, because the ALJ could, and did, find that the evidence did not demonstrate a worsening of the degenerative problems. Specifically, in 1990 Dr. Holmes diagnosed the claimant as suffering from “mild degenerative changes in the knee,” and Dr. Curran diagnosed “moderate degenerative changes” in the left knee. Similarly, in his report of November 11, 1991, Dr. Biber stated that the claimant had “progressive degenerative arthritis.”
Moreover, the ALJ was not persuaded that the claimant established a need for further medical treatment. Rather, the ALJ found that the claimant’s need for a total knee replacement was “speculative,” and this finding is supported by the medical record. In particular, the medical record contains evidence that the attending physicians noted the claimant’s need for a total knee replacement as early as 1990. However, the attending physicians have not recommended that the claimant proceed with that surgery. For example, in his report of July 30, 1990, Dr. Curran indicated the “possibility” that the claimant may require a joint replacement, but Dr. Curran stated that no such surgery was needed at that time. See also, Dr. Biber report November 11, 1991. Similarly, in a clinic note dated July 27, 1994, Dr. Holmes stated that in the claimant’s “lifetime” a knee joint replacement will be necessary, but he indicated “no time frame for that intervention” and recommended no surgical intervention “at this juncture.”
The ALJ’s finding that there is no current recommendation that the claimant undergo a knee replacement supports the conclusion that, at the time of the ALJ’s order, knee replacement surgery was not reasonable and necessary treatment to cure and relieve the effects of the industrial injury. See Milco Construction v. Cowan, 860 P.2d 539 (Colo.App. 1992) (determination of whether medical report which stated that the claimant “may” require a total knee replacement “at some time in his life” constituted substantial evidence that further treatment was reasonably necessary was a question of fact for ALJ); see also Gonzales v. Industrial Claim Appeals Office, 905 P.2d 16
(Colo.App. 1995) (claimant at MMI where recommended surgery counter indicated until claimant undergoes heart surgery). Therefore, the ALJ’s findings support the order denying further benefits. Cf Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854
(Colo.App. 1995).
III.
For their part, the respondents argue that the claim is barred from reopening under the statute of limitations. However, the respondents did not appeal the ALJ’s order and consequently, the respondents waived this argument. See Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987).
IT IS THEREFORE ORDERED that the ALJ’s order dated November 22, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed October 2, 1996 to the following parties:
J.C. Rivale, P.O. Box 26, Campo, CO 81029
Tom Kelly, Delaware North Companies, Inc., One Delaware North Plaza, 438 Main St., Buffalo, N.Y. 14202
Lisa Cruz, Crawford Co., 7000 S. Yosemite, Ste. 150, P.O. Box 6502, Englewood, CO 80155-6502
Christie de Balbine, Crawford Co., One International Blvd., Ste. 300, Mahwah, NJ 07495
Ralph Ogden, Esq., 1750 Gilpin St., Denver, CO 80218 (For the Claimant)
Karen Gail Treece, Esq. John R. Haberland, Esq., 400 S. Colorado Blvd., Ste. 700, Denver, CO 80222 (For the Respondents)
BY: _______________________