W.C. No. 4-166-141Industrial Claim Appeals Office.
June 9, 1998
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ), which denied her Petition to Reopen and claim for permanent total disability benefits. We affirm.
The claimant suffered a compensable injury on May 11, 1992, to the cervical and thoracic areas of the spine. Dr. Kleen placed the claimant at maximum medical improvement (MMI) on July 20, 1994. The claim was closed following the respondents’ filing of a Final Admission of Liability for the payment of permanent partial disability benefits based on 32 percent whole person impairment.
In August 1994, the claimant began treating with Dr. Lane for headaches. On September 9, 1996, the claimant filed a Petition to Reopen, which alleged a worsening of her condition based upon the medical reports of Dr. Lane. The claimant also filed an Application for Hearing on the Petition to Reopen and permanent total disability.
Dr. Roth performed an independent medical examination on December 11, 1996. He opined that the claimant’s headache syndrome pre-dated the industrial injury, and stated: “It is normal and does not represent a worsening of condition for [sic] multi-faceted headache disorder to wax and wane.” Further, Dr. Roth opined that the claimant “presents a subjective change of complaints but no real new symptoms,” and no change in her neurologic status. Under these circumstances, Dr. Roth concluded the claimant did not present a worsening of her condition from the industrial injury.
The ALJ found the medical reports of Dr. Kleen and particularly Dr. Roth persuasive. The ALJ also found that the claimant’s pain complaints at the time of the hearing were similar to the complaints she made to Dr. Kleen at the time of MMI. Accordingly, the ALJ determined that the claimant failed to prove by a preponderance of the evidence that her condition has significantly changed or worsened since MMI. Therefore, the ALJ denied the Petition to Reopen and the claim for permanent total disability benefits.
In her petition to review, the claimant generally contends the ALJ failed to resolve conflicts in the evidence, and that he erred in failing to find a worsened condition and denying the claim for permanent total disability benefits. However, the claimant has not filed a brief in support of the petition to review. Therefore, the effectiveness of our review is limited Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
Under § 8-43-303(1), C.R.S. 1997, the ALJ has discretion to reopen a claim due to 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). We may not interfere with the ALJ’s exercise of discretion unless the record demonstrates an abuse of discretion. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996). 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).
Notwithstanding the claimant’s contention, the ALJ resolved conflicts in the evidence based upon his credibility determinations. The ALJ credited the opinions of Dr. Roth, and rejected the medical reports and testimony which were inconsistent with Dr. Roth’s opinion that the claimant’s condition had not worsened. There is substantial evidence to support this determination in the December 11, 1996 report of Dr. Roth, and Dr. Kleen’s report dated July 20, 1994, as well as the claimant’s testimony and Dr. Gross’s report dated November 19, 1991. Further, the ALJ’s findings support the conclusion that the claimant failed to sustain her burden to prove grounds to reopen the claim. (Tr. pp. 52, 53). Therefore, the ALJ did not err in denying the request for additional benefits. See Kuziel v. Pet Fair, Inc., 948 P.2d 103 (Colo.App. 1997); Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991).
IT IS THEREFORE ORDERED that the ALJ’s order dated April 30, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ Kathy E. Dean ____________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed June 9, 1998 to the following parties:
Brenda K. Sommer, 8869 Circle Dr., Westminster, CO 80030
Health-One of Rocky Mountain Rehabilitation Institute, 720 S. Colorado Blvd., #1260 S, Denver, CO 80222
Subsequent Injury Fund — Interagency Mail
Michael P. Serruto, Esq., Office of the Attorney General, 1525 Sherman St., 5th Flr., Denver, CO 80203-1760 (For SIF)
John Bearss, CIGNA Insurance Companies, P.O. Box 2941, Greenwood Village, CO 80150-0941
Robert W. Turner, Esq., 1120 Lincoln, #1001, Denver, CO 80203 (For the Claimant)
Julie D. Swanberg, Esq., 3900 E. Mexico Ave., Ste. 1300, Denver, CO 80210 (For the Respondents)
BY: _______________________