W.C. Nos. 4-109-501, 4-204-077Industrial Claim Appeals Office.
October 4, 1996
FINAL ORDER
The claimant has filed a petition for review of an order issued by Administrative Law Judge Gandy (ALJ) which denied his petition to reopen and claim for additional workers’ compensation benefits. We affirm.
The claimant sustained an admitted industrial injury to his left shoulder in August 1991. Dr. Roth, the claimant’s treating physician, opined that the claimant was at maximum medical improvement as of June 24, 1992, with 10 percent permanent partial impairment of the left upper extremity. Dr. Ryan, who also treated the claimant, agreed with Dr. Roth’s opinion. Further, Dr. Adler opined that as of July 17, 1992, the claimant was capable of returning to work without restrictions.
The claimant underwent an Independent Medical Examination on November 5, 1992, and the examining physician, Dr. Talbott, opined that the claimant sustained 4 percent impairment of the left upper extremity. A Final Admission of Liability was filed in July 1992 for 10 percent permanent partial impairment based on Dr. Roth’s opinion. In December 1992, an amended Final Admission was filed for 4 percent permanent partial impairment based on Dr. Talbott’s report.
The ALJ implicitly determined that the claim was closed in December 1993, when the claimant failed to respond to an order issued by the Director of Workers’ Compensation, directing the claimant to show cause why the claim should not be closed for failure to prosecute. The Show Cause order was issued on November 8, 1993, and provided that if the claimant failed to respond to the order within thirty days, the claim would automatically be closed, subject to the reopening provisions of the statute See Workers’ Compensation Rule of Procedure X(A)(2)(b), 7 Code Colo. Reg. 1101-3.
The claimant filed a petition to reopen his claim in December 1994, seeking additional medical and temporary disability benefits. The petition alleged that the 1991 injury had worsened and was accompanied by a medical report from Dr. Donner. The respondents contested the petition, and had the claimant examined by Dr. Hughes, who opined that the claimant’s condition from the 1991 injury had not worsened. A hearing was held on March 20, 1996, wherein the claimant alternatively asserted that a petition to reopen was unnecessary because the claim was not properly closed.
The ALJ concluded that the claimant failed to meet his burden to prove that the 1991 injury had worsened, and therefore, denied the petition to reopen. The ALJ specifically found that Dr. Donner’s opinion should be given little weight because the claimant failed to give Dr. Donner a complete medical history, and that the opinions of Drs. Roth, Ryan, Adler, Talbott, and Hughes were credible. The ALJ also determined that the claimant failed to overcome Dr. Roth’s opinion that maximum medical improvement was attained in June 1992, or Dr. Adler’s opinion that the claimant was able to return to his regular employment in July 1992. Therefore, the ALJ alternatively concluded that the claimant was not entitled to further temporary disability benefits on this basis. See § 8-42-105(3)(a), C.R.S. (1996 Cum. Supp.); §8-42-105(3)(c), C.R.S. (1996 Cum. Supp.).
On appeal, the claimant asserts that the ALJ erred in discrediting Dr. Donner’s opinion, and in determining that the claimant failed to meet his burden of proof. However, before addressing the claimant’s substantive arguments on appeal, we address a procedural issue.
I.
The record reflects that after the claimant filed his petition to review and a transcript of the hearing was prepared, a briefing schedule was issued on June 28, 1996. In accordance with § 8-43-301(4), C.R.S. (1996 Cum. Supp.), the claimant was advised that he had twenty days to file a brief in support of the petition to review. The claimant did not file a brief within the twenty-day period, which expired on July 18, 1996. Rather, on July 24, 1996, the claimant submitted a motion for an extension of time to file his brief. Further, a second motion for extension of time was submitted on August 2, 1996.
However, the ALJ declined to rule on these motions because they were not accompanied by a proposed order, copies of the order, and envelopes. See Rule of Procedure VIII(D), 7 Code Colo. Reg. 1101-3 (a motion for entry of a procedural order must be accompanied by a proposed order, as well as copies of the proposed order and self-addressed, stamped envelopes if the moving party wishes to receive a copy). The claimant subsequently filed his brief by mail on August 12, 1996, the same day on which the case was transmitted to this office.
The record before us includes the originals of the motions for extension of time. The originals are accompanied by a proposed order with copies thereof, and self-addressed, stamped envelopes. However, the originals were mailed to this office, rather than to the ALJ, see Rule of Procedure 8(L)(2)(b), 7 Code Colo. Reg. 1101-3, and it does not appear that the originals ever reached the ALJ.
In any event, the motions for extension of time were not filed within the time specified for filing the brief, as required by Rule of Procedure VII(D)(4), 7 Code Colo. Reg. 1101-3. Consequently, it was mandatory that the motions be denied, and the claimant’s brief will not be considered.
II.
The claimant’s contention in his petition to review that the ALJ erred in discrediting Dr. Donner’s opinion, and in concluding that the claimant did not meet his burden of proof, is without merit. It is the ALJ’s prerogative to assess the credibility of witnesses and the probative value of the evidence. Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996); see also High v. Industrial Commission, 638 P.2d 818 (Colo.App. 1981) (expert opinion based on incorrect facts may be disregarded). It follows that there is no basis for disturbing the denial of the petition to reopen. See Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986) (reopening of a claim is discretionary with the ALJ and in the absence of fraud or an abuse of discretion, the exercise of discretion is absolute); see also Industrial Commission v. Kokel, 108 Colo. 353, 116 P.2d 915 (1941) (no abuse of discretion in refusing to reopen claim based on ankle condition where claimant failed to mention alleged ankle injury to original physicians and ankle injury was not discovered at the time the original injury was treated).
The claimant’s remaining contentions are also without merit. The ALJ’s findings of fact are supported by substantial evidence, and the findings support the order. Moreover, the findings are sufficient to permit appellate review, the conflicts in the evidence are resolved, and the order is consistent with applicable law. Section 8-43-301(8). C.R.S. (1996 Cum. Supp).
IT IS THEREFORE ORDERED that the ALJ’s order issued April 12, 1996, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ Dona Halsey
___________________________________ Bill Whitacre
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. (1996 Cum. Supp.).
Copies of this decision were mailed October 4, 1996 to the following parties:
Gabriel Saenz, 2706 6th Ave, Ln., Garden City, CO 80631
Gold Star Sausage Co., Inc., 2800 Walnut St., Denver, CO 80205-2236
Liberty Mutual Insurance Co., Attn: Kelle Walker, 13111 E. Briarwood Ave., #100 Englewood, CO 80112
Jonathan S. Robbins, Esq., 1120 Lincoln St., Ste. 1606, Denver CO 80203 (For the Respondents)
Richard K. Blundell, Esq., 800 8th Ave., #202, Greeley, CO 80631 (For the Claimant)
By: _______________________