W.C. No. 4-602-654.Industrial Claim Appeals Office.
October 6, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated May 21, 2008, that denied the claimant’s petition to reopen. We affirm.
A hearing was held on the issue of whether the claimant’s petition to reopen should be granted. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant sustained a compensable injury to his low back on October 1, 2003, and received medical treatment from Dr. Cazden until April 5, 2004, when Dr. Cazden discharged him from treatment. Dr. Lesnak performed an electrodiagnostic consultation, and noted in his report that the claimant stated that he had not had any previous low back problems. Dr. Cazden determined that the claimant reached maximum medical improvement on April 5, 2004, with no impairment. The claimant obtained a Division-sponsored independent medical examination (DIME), which was performed by Dr. Hughes. Dr. Hughes stated that the claimant denied previous low back problems and that the history he related was “markedly discrepant” with various medical records. Dr. Hughes agreed with the date of maximum medical improvement and determined that the claimant had sustained permanent impairment of five percent of the whole person. The respondents filed a final admission of liability admitting for benefits based on Dr. Hughes’ impairment rating. The claimant did not contest the final admission. He subsequently filed a petition to reopen based on a worsened condition.
Following the filing of the petition to reopen, Dr. Burke examined the claimant and reported that there was no material change in his condition based upon any objective
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criteria. The claimant was examined by his personal chiropractor, Dr. Masteller, who stated that his condition had worsened and that it was attributable to his October 1, 2003, back injury. Dr. Pettine also evaluated the claimant and stated a similar opinion. However, the ALJ noted with regard to both opinions that neither doctor had sufficiently considered the claimant’s history of previous low back problems. The ALJ credited the opinions of Dr. Pettine and Dr. Masteller that the claimant’s condition had worsened; however, he rejected the opinions that the worsened condition was caused by the October 1, 2003, compensable injury. Rather, he credited the opinions of Dr. Basse, who examined the claimant and stated that his worsened condition was attributable to the natural progression of his disease process, which was ongoing prior to the injury in October 2003. The ALJ further credited Dr. Basse’s opinion that the claimant’s ongoing disease process was only “minimally altered” by the injury in October 2003. The ALJ therefore found that the claimant’s worsened condition was attributable to the natural and ongoing progression of his disc disease, and that it was not causally related to the October 1, 2003, injury.
Based upon his factual findings concerning the cause of the claimant’s condition, the ALJ denied the petition to reopen. The claimant appealed the ALJ’s order and advances two arguments. First, the claimant argues that the ALJ’s determination that he was not credible regarding his reports of no prior back problems should not have formed the basis for denial of the petition to reopen. And, second, the claimant argues that the respondents’ failure to explain the cause of his undisputed torn disc compels the conclusion that his worsening was caused by the October 1, 2003, injury. We reject both of these arguments and conclude that the ALJ did not err or abuse his discretion in denying the petition to reopen.
Generally, the authority to reopen a claim under 3 8-43-303(1), C.R.S. 2008, is discretionary with the ALJ. Thus, we may not interfere with the order unless there is fraud or a clear abuse of discretion. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996). An abuse of discretion is not shown unless the order is beyond the bounds of reason, as where it is unsupported by the law or contrary to the evidence. See Coates, Reid Waldron v. Vigil, 856 P.2d 850
(Colo. 1993). Moreover, whether the claimant’s condition is due to the natural progression of the pre-existing condition or a new industrial accident is one of fact for resolution by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999). Further, the questions whether the claimant proved a worsened condition, and whether the worsening was causally related to the industrial injury, are factual in nature.
Insofar as the ALJ relied upon determinations that are factual in nature, we are bound by those determinations if they are supported by substantial evidence in the record.
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Section 8-43-304(8), C.R.S. 2008; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Substantial evidence is that quantum of proof which would support a reasonable belief in the existence of a fact without regard to contradictory evidence and conflicting inferences Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). We note that expert medical opinion is not needed to prove or disprove causation where circumstantial evidence supports the ALJ’s inferences regarding the claimant’s condition. Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). Where expert medical opinion is presented, however, it is solely for the ALJ as fact finder to weigh the evidence and resolve any conflicts. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Here, the ALJ’s factual findings are supported by substantial evidence and his inferences are reasonable ones from the factual record. The ALJ’s dispositive determination was that the claimant failed to carry his burden of showing that the worsening of his condition was caused by his compensable injury. That determination is amply supported by the medical reports of Dr. Hughes, Dr. Burke, and Dr. Basse, and the testimony of the latter. Indeed, as we understand the claimant’s argument on appeal, he does not contend that the ALJ’s factual findings are not supported by substantial evidence in the form of the medical reports from the doctors mentioned. Rather, the claimant contends, first, that the ALJ erred in resolving this matter based at least in part on the claimant’s lack of credibility in reporting his prior history. And, second, the claimant contends that the absence of any explanation for the herniated disc compelled the ALJ to conclude that it was caused by the October 1, 2003, compensable injury.
First, we do not read the ALJ’s order as resolving this matter exclusively on the basis of the claimant’s lack of credibility in reporting his prior back problems to his examining physicians. It is true that the ALJ considered the fact that Dr. Pettine and Dr. Masteller did not have accurate histories of the claimant’s prior condition in formulating their opinions concerning the cause of his worsened condition. However, this is certainly a factor that the ALJ could properly consider in weighing the probative value of the expert testimony. Moreover, we note that during the parties’ closing argument the claimant’s counsel argued that the question of medical causation should not turn on the claimant’s credibility, and even the respondents’ attorney conceded that to characterize the question as one of the claimant’s credibility was “a little simplistic.” Tr. at 48. As we read the ALJ’s order, he considered the completeness of the medical record from which Dr. Pettine and Dr. Masteller formed their opinions on causation, which to some extent implicated the accuracy of the claimant’s recitation of that history to the doctors. This was an appropriate factor for the ALJ to consider in weighing the expert evidence.
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Second, we reject the claimant’s argument that the lack of an explanation for his herniated disc compelled the ALJ to conclude that it was caused by the claimant’s compensable injury and that it, in turn, caused the claimant’s worsened condition. There was evidence at the hearing to the contrary on both points. Dr. Basse testified in response to questions from the respondents’ counsel that the discogram did not address either “the question of worsening of condition or causality.” Tr. at 31. She further questioned the soundness of Dr. Pettine’s opinions regarding the discogram, noting that numerous other diagnostic testing had not revealed the same anatomical tear. Tr. at 32-33. We note that the ALJ expressly stated that, in crediting the opinions of Dr. Basse, he was at the same time rejecting as less credible contrary opinions regarding the cause of the claimant’s worsened condition. Under these circumstances we are unpersuaded by what we consider the claimant’s request that we reweigh the expert evidence and draw inferences different from those reached by the ALJ. We may not usurp his function as the fact finder by doing so. Because his factual findings are supported by substantial evidence and because his conclusions are supported by applicable law, we may not disturb his order.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 21, 2008, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________ Curt Kriksciun
________________________ Thomas Schrant
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JOSE SANCHEZ, FT LUPTON, CO, (Claimant).
KMART CORPORATION, Attn: MR JOHN HARRIS, C/O: THE PARENT SEARS HOLDINGS CORP, BRIGHTON, CO, (Employer).
ACE AMERICAN INSURANCE COMPANY, Attn: MR JASON BOCK, C/O: SEDGWICK CMS, GREENWOOD VILLAGE, CO, (Insurer).
IRWIN BOESEN, PC, Attn: LANE N COHEN, ESQ., DENVER, CO, (For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: ERIC J POLLART, ESQ.BENJAMIIN P KRAMER, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).
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