W.C. No. 3-950-074.Industrial Claim Appeals Office.
September 19, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated March 30, 2007, that reopened the claim and allowed the respondents to cease payment of permanent total disability (PTD) benefits. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant suffered an injury to his left hand when it was pulled into a mixing machine on July 17, 1989. There were no fractures in the left hand, but the claimant suffered injuries to his muscles and nerves. Despite concerns regarding the credibility of his presentation, the claimant’s treating physician diagnosed him with probable complex regional pain syndrome (CRPS) also known as reflex sympathetic dystrophy (RSD). The claimant underwent a functional capacity evaluation (FCE) in 1994 at which he refused to use his left hand and reported to the FCE examiner that he was not independent in his activities of daily living. The claimant received significant medical restrictions following the FCE due in part to the fact that he could not use his left hand at the time. The respondent admitted the claimant was permanently and totally disabled in a 1995 admission. The claimant did not seek any medical treatment for his work injury from late 1997 through mid-2006. The claimant went almost nine years without requesting or receiving any medical treatment for his work-related condition. The claimant did not request medical treatment for his condition until after he was notified that the respondent was investigating his current medical condition.
Page 2
The ALJ determined the respondent had established by a preponderance of the evidence that there had been a change in the claimant’s physical condition which justified reopening the issue of permanent disability. The ALJ found the claimant’s condition had improved since the original award of permanent total disability benefits in 1995 and the claimant at the time of the hearing had some use of his left hand and arm. The surveillance video and the opinions of Dr. Roth demonstrated that the claimant had use of his left arm, thumb and index finger. The claimant repeatedly used his left arm and hand for daily activities during the surveillance video. The claimant performed activities with his left hand and arm that he had denied he was able to perform. The claimant’s use of the left hand and arm in the video was markedly different than what was reported in 1994 and 1995 when the respondent admitted for PTD benefits. The lack of medical treatment was consistent with the claimant’s improved function in his left hand and arm as demonstrated in the surveillance video. The ALJ determined that a preponderance of the conflicting evidence showed that the claimant had regained efficiency in some substantial degree as a working unit in the fields of general employment and that the claimant was capable of earning a wage. The ALJ concluded that the claimant was not permanently and totally disabled, and was no longer entitled to PTD benefits. The ALJ noted that the respondent had argued that the claim should be reopened on the ground of fraud, but this argument was in the alternative to respondent’s argument for reopening on the ground of change in condition and, therefore, the order did not need to reach the issue of fraud.
I.
On appeal the claimant first contends that the ALJ erred in allowing the respondents to relitigate the issue of whether the claimant has CRPS. The claimant argues that in light of the respondent’s admission, which was in part based on a diagnosis of CRPS, the respondent’s only option to challenge the prior admission of liability was on the basis of fraud. We disagree.
The petition to reopen filed in this matter seeking to terminate PTD benefits states fraud as one of the grounds for reopening the claim, but also lists change in medical condition as evidenced by the surveillance and medical reports. Exhibit 40.
Pursuant to § 8-43-303(1), C.R.S. 2006 the respondent sought to reopen the award for PTD benefits on the grounds of change in condition and fraud. The determination whether to reopen a claim is discretionary with the ALJ and, absent fraud or a clear abuse of that discretion, we may not disturb the ALJ’s order. Osborne v. Industrial Claim Appeals Office, 725 P.2d 850 (Colo.App. 1986). An abuse of discretion is only shown where the order exceeds the bounds of reason, such as where it is unsupported by substantial evidence or is contrary to law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
Page 3
Further, the findings of fact upon which the ALJ bases his determination must be upheld if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2006. In applying the substantial evidence test, we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences that he drew from the evidence. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). To the extent medical evidence is presented, it is solely the ALJ’s responsibility to assess the weight of that evidence and resolve any conflicts or inconsistencies Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
We understand the ALJ noted Dr. Roth’s testimony that the claimant did not have CRPS. However, the ALJ’s determination to reopen the claim and deny PTD benefits did not turn on whether the claimant currently had CRPS or even if the claimant had CRPS at the time the admission for PTD was made. Instead the ALJ expressly noted that the claimant’s medical restrictions were not controlled by the proper diagnosis rather the restrictions are based on the claimant’s functional abilities. Findings of Fact, Conclusions of Law, and Order (Order) at 11, ¶ 50. On the issue of functional abilities the ALJ credited the testimony of Ms. Kratzer, the respondent’s expert in vocational rehabilitation, who testified that the claimant was currently regularly employable in a well-known branch of the labor market and that the claimant had regained efficiency in some substantial degree as a working unit in the fields of general employment. The ALJ’s determination is supported by the opinions of both Dr. Roth and the respondent’s vocational expert. Exhibit A; Kratzer Depo. at 40-41, 49. The surveillance tape also supported this finding. Exhibit 2. In our opinion the ALJ’s determination that the respondent had established by a preponderance of the evidence that the claimant’s condition had improved since the original award of PTD benefits and that the change justified reopening the issue of permanent disability is supported by the record.
In our view the claimant’s reliance on City and County of Denver v. Industrial Claim Appeals Office, 58 P.3d 1162 (Colo.App. 2002) is misplaced. In City and County of Denver the main issue was whether an employer was entitled to recoup lump sum disability benefits already paid to a claimant where, after the claim was reopened, the claimant obtained additional treatment resulting in a lower impairment rating, and a division-sponsored independent medical examination results in a zero percent impairment rating. In City and County of Denver the ALJ specifically found that there was no improvement of the claimant’s condition after the reopening and that the original rating simply indicated a difference of opinion between physicians. The court of appeals determined this finding was within the ALJ’s province and, inasmuch as it was supported by the evidence, did not disturb it. In contrast to City and County of Denver v. Industrial Claim Appeals Office of State, here, the ALJ with record support found that there was improvement of the claimant’s condition and we may not disturb that finding.
II.
Page 4
The claimant contends that the surveillance video only shows the claimant engaged in activities that were within the range of medical restrictions given by the treating physicians. Therefore the claimant argues the video is insufficient to support the ALJ’s finding that the claimant’s mere use of the left upper extremity in daily life activities established he no longer had CRPS.
We again note that we do not read the order as finding the claimant no longer had CRPS. Instead the ALJ found the surveillance video showed the claimant had use of his left arm, his thumb and index finger. The ALJ further found that the claimant performed normal activities such as driving, typing, going to the store, working out at the gym and using his hand to open doors and carry items. Order at 13, ¶ 8. We have reviewed the surveillance video and the inferences drawn by the ALJ by from this evidence are plausible. Exhibit 2.
The claimant points to evidence that Dr. Roth in reviewing the surveillance video could not say that the claimant surpassed the restrictions placed on the claimant earlier by a treating physician and cites Ying v. Lockeed Martin W. C. No. 4-505-136 (May 09, 2003). I Ying the ALJ was not persuaded the surveillance video demonstrated the claimant’s ability to lift exceeded the claimant’s physical limitations as outlined by a physician and therefore failed to credit an expert’s option on what jobs were appropriate for the claimant. We ruled that this was a plausible inference to be drawn from the evidence and consequently upheld the finding on review. In contrast here the ALJ found that the evidence, including the surveillance video, demonstrated the claimant had regained efficiency as a working unit and was capable of earning a wage. In our opinion, as noted above, this finding has support in the record and therefore we decline to interfere with the ALJ’s finding.
III.
The claimant contends that the respondents were obligated to demonstrate that the right shoulder condition had improved since it was one of the original injury components admitted to by the respondents. The claimant also argues that the respondent did not demonstrate that the claimant was no longer depressed, but only presented evidence involving the claimant’s left upper extremity.
The respondent argues that the claimant agreed at the onset of the hearing that he would not proceed with any claim that the right arm and shoulder condition was related to the present industrial accident. In any event we disagree that the ALJ committed error in allowing the claim to be reopened without finding that there had also been an improvement in the claimant’s right arm and depression conditions. The claimant has not cited any authority for the proposition that in order for a claim to be reopened there must be a demonstration of a change in all of the separate components originally found to have been a part of the condition caused by the industrial injury. In our view a change in any
Page 5
one of the conditions related to the industrial injury can be sufficient to support a reopening. See Alvin H. Watkins, Inc. v. Hamilton, 159 Colo. 257, 411 P.2d 15 (Colo. 1966).
IV.
The claimant finally contends that the ALJ erred in relying on Dr. Roth’s opinion that the claimant is employable because Dr. Roth’s opinion is unreliable. The claimant argues that the ALJ erred in crediting Dr. Roth’s opinion that the claimant is employable because Dr. Roth did not have a current FCE to review and the surveillance video was an unreliable FCE to terminate PTD benefits.
Dr. Roth was qualified as an expert. Tr. (December 12, 2006) at 96. Dr. Roth examined the claimant and reviewed an extensive medical record. Exhibit 32. Dr. Roth, after viewing the surveillance video which he considered a virtual FCE, expressed the opinion that the claimant was capable of working full time in a sedentary or light duty capacity. Exhibit 33 at 447.
The claimant has not cited, nor are we aware of any, authority that requires a FCE be performed when the issue involves termination of PTD benefits. See Manzanares v. Kelloff W. C. No. 4-137-498 (September 29, 1998) (in determining the claimant’s ability to earn wages there is no requirement that an ALJ credit the results of an FCE). The claimant’s contention regarding the absence of a formal FCE concerns the weight to be afforded the expert’s opinion, a matter within the ALJ’s discretion See Rockwell International v. Turnbull, supra; Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981). Contrary to the claimant’s argument, the ALJ was not compelled to find this expert’s opinion unpersuasive. Cf. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). Therefore, we cannot say the ALJ abused his discretion by crediting Dr. Roth’s testimony.
The claimant’s ability to earn wages is a factual question and the ALJ’s determination must be upheld if supported by substantial evidence Christie v. Coors Transp. Co. 919 P.2d 857 (Colo.App. 1995) aff’d, 933 P.2d 1330 (Colo. 1997). The inquiry regarding claimant’s ability to earn wages is to be done on a case by case basis. Weld County School Dist. RE-12 v. Bymer 955 P.2d 550 (Colo. 1998). Here the ALJ resolved conflicts in the evidence and made plausible inferences drawn from the evidence. We perceive no basis on which to interfere with the ALJ’s finding. We have considered the claimant’s remaining arguments and they do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 30, 2007, is affirmed.
Page 6
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
Page 7
JOSEPH LEE SOLANO, COMMERCE CITY, CO, (Claimant).
THE SOLANO LAW OFFICES, Attn: MANUEL J. SOLANO, THORNTON, CO, (For Claimant).
THOMAS POLLART MILLER LLC, Attn: BRAD J MILLER, GREENWOOD VILLAGE, CO, (For Respondents).
SEDGWICK CMS, Attn: SHARMIE JENSEN, SALT LAKE CITY, UT, (Other Party), SEDGWICK CMS, Attn: JOHN BEARSS, DENVER, CO, (Other Party 2).
Page 1