W.C. No. 4-201-186Industrial Claim Appeals Office.
June 23, 1999.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied and dismissed her petition to reopen alleging a change of condition. We affirm.
The claimant had a left knee injury in 1991 while working for Air Host. Dr. Ciccone performed an arthroscopy on January 12, 1992, which revealed a 50% tear of the claimant’s anterior cruciate ligament (ACL). Dr. Ciccone recommended an ACL reconstruction in the future, and the claimant was treated conservatively. On July 15, 1992, the claimant reached maximum medical improvement (MMI) for the 1991 injury, and sustained 10 percent permanent impairment to the left lower extremity. The claim was settled.
This claim (W.C. No. 4-201-186) involves an admitted left knee injury on February 2, 1994, during the claimant’s employment as a delivery driver for Domino’s Pizza. The injury was treated by Dr. Ciccone who performed an arthroscopy on February 24, 1994, which revealed an intact ACL but a thickened anterior velum which he removed. On March 4, 1994, the claimant returned to regular employment. Dr. Ciccone placed the claimant at MMI on November 22, 1995, and the claim was closed pursuant to the respondents’ filing of an uncontested Final Admission of Liability for the payment of permanent partial disability benefits based on 4 percent whole person impairment.
On June 20, 1994, the claimant returned to Dr. Ciccone for treatment after twisting her left knee at a dog track. The claimant also received treatment following a motor vehicle accident on July 25, 1994. However, the claimant denied that these incidents caused any permanent injury to her left knee.
On May 1, 1997 the claimant returned to Dr. Ciccone for further knee treatment. Dr. Ciccone diagnosed ACL laxity and a possible meniscal tear, and an abnormal ACL with a more fragmented appearance than revealed in the 1991 MRI. Dr. Ciccone opined that the claimant suffered a worsening of the ACL from the 1994 injury and recommended reconstruction of the left knee.
The claimant was also examined by Dr. Oster. In a report dated October 22, 1997, Dr. Oster reported no signs of instability in the left knee, and therefore, he disagreed with Dr. Ciccone’s recommendation for surgery. In any case, Dr. Oster also opined that the claimant did not suffer a reinjury to the ACL during the 1994 industrial accident. Consequently, Dr. Oster opined that the need for surgery is unrelated to the 1994 injury.
Relying Dr. Ciccone’s opinions, the claimant filed a Petition to Reopen this claim alleging a worsening of condition caused by the 1994 injury. The respondents refused to reopen the claim.
Giving the greatest weight to the opinions of Dr. Oster, the ALJ determined the claimant failed to prove a worsening of her condition from the 1994 injury. Therefore, the ALJ denied the petition to reopen.
On review, the claimant contends that Dr. Ciccone’s testimony is sufficient to prove that she suffered a worsened condition as a natural consequence of the 1994 injury. Therefore, the claimant contends the ALJ erred in failing to reopen the claim. We disagree.
Section 8-43-303 C.R.S. (1996 Cum. Supp.), allows an ALJ to reopen a claim on the grounds of error, mistake or change of condition. The decision whether to reopen a claim is discretionary with the ALJ. Section 8-43-303(1), C.R.S. (1996 Cum. Supp.); 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 order exceeds the bounds of reason, we must accept the ALJ’s findings which are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. Furthermore, we must defer to the ALJ’s credibility determinations. In this regard the ALJ is not required to credit the claimant’s testimony. Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970). We must also defer to the ALJ’s resolution of conflicts in the evidence, his assessment of the sufficiency and probative weight of the evidence, and plausible inferences drawn from the record. See Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
A “change in condition” refers to a change which is causally connected to the original compensable injury. Chavez v. Industrial Commission, 714 P.2d 1328 (Colo.App. 1985) Here, there is a direct conflict between Dr. Ciccone and Dr. Oster concerning the nature and cause of the claimant’s knee condition. The ALJ resolved the conflict in favor of Dr. Oster and we may not interfere with that determination. See Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995); Rockwell International v. Turnbull, supra.
In determining the credibility of Dr. Oster’s opinions, the ALJ was free to consider the fact that Dr. Oster only examined the claimant on one occasion. However, that fact went to the weight of Dr. Oster’s opinion and did not preclude the ALJ from crediting it.
Furthermore, there is substantial evidence in Dr. Oster’s report to support the ALJ’s finding that the claimant’s worsened condition is not related to the 1994 injury. Consequently, it is immaterial that the record contains some evidence, including Dr. Ciccone’s testimony which, if credited, might support a contrary determination. See Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993).
The claimant’s also contends that the ALJ’s findings of fact misstate the evidence. Again we disagree.
Dr. Schutt’s clinic note dated November 2, 1994, supports the ALJ’s finding that the claimant told Dr. Schutt she “definitely aggravated her left knee problem” during the July 25 motor vehicle accident. (Finding of Fact 7). The claimant’s testimony to the contrary merely creates a conflict in the evidence, which the ALJ resolved against the claimant. The claimant’s further challenges to Dr. Schutt’s opinions have been considered and are unpersuasive.
The ALJ also found that Dr. Ciccone admitted that, “as of November 22, 1995, he did not feel claimant had injured her ACL in the February 2, 1994 accident,” and that Dr. Ciccone admitted the claimant’s knee condition “could have worsened from her daily activities.” (Finding of Fact 13). The claimant’s arguments not withstanding, Finding of Fact 13 is a plausible interpretation of Dr. Ciccone’s testimony. (Tr. pp. 35, 36). The ALJ’s inference is also consistent with Dr. Ciccone’s medical report dated November 25, 1995, where he stated that the claimant had a fifty percent tear of the ACL but that the “remaining portion of the ligament appears to be holding well.” Consequently, the claimant has failed to establish grounds which afford us a basis to grant appellate relief.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 16, 1998, 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. 1998.
Copies of this decision were mailed JUNE 23, 1999 to the following parties:
Donna M. Sheeks, 127 N. Claremont St., Colorado Springs, CO 80909
Inflated Dough Inc., 5875 Lehman Dr., Colorado Springs, CO 80918-3466
Kathleen W. Robinson, P.O. Box 60219, Colorado Springs, CO 80960-0219 (For Claimant)
Colorado Compensation Insurance Authority, Laurie A. Schoder, Esq., — Interagency Mail — (For Respondents)
Thomas M. Stern, 1700 Broadway, Ste. 1700, Denver, CO 80290-1701
BY:JLS