W.C. No. 4-211-589Industrial Claim Appeals Office.
January 15, 1998
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Gandy (ALJ), which denied his petition to reopen based on a worsened condition. We affirm.
The claimant sustained a compensable back injury and underwent surgery. In December 1995, the claimant’s surgeon placed him at maximum medical improvement (MMI) noting that he had “lots of back complaints and leg complaints.” Subsequently, a Division-sponsored independent medical examination (IME) was performed by Dr. Hughes. Dr. Hughes gave the claimant an eleven percent whole person medical impairment rating based on the injury to the back. In so doing, Dr. Hughes concluded that the claimant did not sustain any permanent psychiatric impairment as a result of the injury, and noted that the claimant had “pre-existing anxiety and depressive manifestations.”
The claimant filed a Petition to Reopen alleging that his condition had worsened in the spring of 1996. The claimant testified that the worsening manifested itself in a wide array of symptoms including headaches, trigger finger, depression, and increased pain. However, the ALJ denied the Petition to Reopen finding that the claimant failed to demonstrate that he suffered any change in condition which could be “linked” to the 1994 industrial injury. In support of this determination, the ALJ found that the claimant admitted that “no physician had linked his new symptoms to his compensable injury.” The ALJ also found that none of the medical reports, including those issued by Dr. Harder, Dr. Krause, Dr. Theil, and Dr. Hughes established the requisite causal relationship.
On review, the claimant contends that the ALJ erred as a matter of fact and law in finding that he failed to prove a worsened condition causally connected to the 1994 industrial injury. The claimant argues that causation was established by the reports of several physicians, as well as his own testimony. Moreover, the claimant argues that none of his problems predated the industrial injury. We are not persuaded.
Section 8-43-303(1), C.R.S. 1997, permits reopening based on a “change in condition.” In order to prove entitlement to reopening, the claimant must demonstrate a change in the condition of the original compensable injury, or some condition which can be causally connected to the original injury. Chavez v. Industrial Commission, 714 P.2d 1328 (Colo.App. 1985).
The authority to reopen a claim is discretionary with the ALJ, and we may not interfere with the order unless the record demonstrates an abuse of discretion. Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986). An abuse is not shown unless the ALJ’s order is beyond the bounds of reason, as where it is contrary to the law or unsupported by substantial evidence See Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
The question of whether the claimant proved that there was a worsening of condition which is causally related to the 1994 injury is one of fact for determination by the ALJ. See City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997); Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981). In determining whether the ALJ’s findings are supported by the evidence, we must defer to his resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Although medical proof of causation is not necessary, to the extent such proof was presented it was for the ALJ to assess its weight and credibility Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The claimant relies on Dr. Theil’s report of August 14, 1996, in which the doctor stated that the claimant gave a history of getting worse over the last several months with symptoms including pain in his shoulder and locking of his fingers. However, as the ALJ determined, this report does not necessarily establish the requisite causal relationship because Dr. Theil stated that he could not “relate” the claimant’s “new symptoms” to the industrial back injury.
Neither does Dr. Harder’s report support the claimant’s position. Although Dr. Harder gave the claimant a higher impairment rating than that issued by Dr. Hughes, the ALJ was not persuaded that the rating was the result of a worsened condition stemming from the original injury. Rather, as the ALJ determined, Dr. Harder’s report may be read as simply presenting a different view of the claimant’s permanent impairment than that expressed by Dr. Hughes. (Tr. p. 41). This inference is permissible since Dr. Harder stated that he was unable to review any medical records prior to giving his rating.
Neither did Dr. Krause’s psychiatric report require the ALJ to find a worsening of condition related to the industrial injury. Dr. Krause not only stated that the claimant was “depressed,” but also stated that he did not “see any significant emotional factors that are interfering with [the claimant’s] functional ability.” The ALJ need not have read this opinion as being inconsistent with the report of Dr. Hughes, who noted depression, but stated that he did not believe that it rose to the level where a permanent impairment rating for the 1994 injury would be appropriate.
Furthermore, the mere fact that the claimant’s report of symptoms occurred after the industrial injury does not compel the conclusion that they are the result of the injury. This is particularly true in light of Dr. Gaffney’s report that the claimant has “hypochondriasis and hysteria” which leads him to “develop physical problems when he is under stress.”
It is true that some evidence in the record, including the claimant’s own testimony, would support a reopening based on a worsened condition. However, we are not at liberty to substitute our judgment for that of the ALJ concerning the weight and the inferences to be drawn from the lay and medical evidence in the record.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 20, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. 1997.
Copies of this decision were mailed January 15, 1998 to the following parties:
Alturo A. Romero, 19605 Roediger Ave., Ft. Morgan, CO 80701
City of Fort Morgan, P. O. Box 100, Ft. Morgan, CO 80701-0100
Carolyn A. Boyd, Esq., Colorado Compensation Insurance Authority — Interagency Mail
George T. Ashen, Esq., 3677 S. Huron St., Ste. 105, Englewood, CO 80110 (For Claimant)
By: _______________________________