W.C. No. 4-518-876.Industrial Claim Appeals Office.
September 17, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated May 6, 2008, that dismissed the claimant’s petition to reopen and therefore dismissed his claim for temporary total disability benefits. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant suffered an admitted industrial injury to his back on August 21, 2001. On November 21, 2002, Dr. Schakaraschwili determined that the claimant had reached maximum medical improvement (MMI) and assigned him a 26 percent whole person impairment rating. The respondents filed a final admission of liability consistent with an opinion of a Division independent medical examination (DIME) physician for a 19 percent whole person impairment rating. ALJ Felter issued an order on May 18, 2005 finding that the claimant had not overcome the DIME physician’s opinions regarding the date of MMI and permanent impairment rating. The claimant sought to reopen his claim asserting that he had suffered a worsening of condition. The ALJ concluded that the claimant had failed to establish by a preponderance of the evidence that he suffered a worsening of condition after he reached MMI that was causally connected to his industrial injury.
The claimant has not filed a brief in support of his petition to review and, therefore, the effectiveness of our review is limited Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986). The petition to review contains general allegations of error, derived from § 8-43-301(8), C.R.S. 2008, but also specifically contends that the ALJ erred in finding that the claimant’s condition had not worsened and erred in denying the claimant’s petition to reopen.
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Section 8-43-303 C.R.S. 2008 authorizes an ALJ to reopen “any award” on the grounds of, among other things, error, mistake, or a change in condition. Heinicke v. Industrial Claim Appeals Office, _____ P.3d _____ (Colo.App. No. 07CA1640, September 4, 2008); Cordova v. Indus. Claim Appeals Office, 55 P.3d 186, 189 (Colo.App. 2002). A change in condition refers either “to a change in the condition of the original compensable injury or to a change in claimant’s physical or mental condition which can be causally connected to the original compensable injury.” Chavez v. Indus. Comm’n, 714 P.2d 1328, 1330 (Colo.App. 1985); accord Anderson v. Longmont Toyota, Inc., 102 P.3d 323, 330 (Colo. 2004).
The reopening authority granted ALJs by section 8-43-303 “is permissive, and whether to reopen a prior award when the statutory criteria have been met is left to the sound discretion of the ALJ.”Cordova, 55 P.3d at 189. The party seeking reopening bears “the burden of proof as to any issues sought to be reopened.” Section 8-43-303(4), C.R.S. 2008. In the absence of fraud or clear abuse of discretion, the ALJ’s decision concerning reopening is binding on appeal. Jarosinski v. Indutrial Claim Appeals Office, 62 P.3d 1082, 1084 (Colo.App. 2002). An abuse of discretion occurs when the ALJ’s order is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law Id.
Here, the ALJ with record support found that Dr. Reiss had testified a number of times that the claimant was not an appropriate surgical candidate and had not suffered a worsening of condition since he had reached MMI. Exhibit I at 120-21, 141; Exhibit J at 194, 200; Exhibit K at 253; Exhibit L at 292. The ALJ acknowledged Dr. Yamamoto’s opinion that the claimant had suffered a worsening of condition. However, the ALJ also noted that the doctor’s opinion was primarily based on the claimant’s subjective pain complaints, which had remained essentially unchanged since before he reached MMI. The claimant testified at hearing that he had severe back pain, and was afraid of falling because of right leg numbness and weakness. The claimant further testified that his condition interfered with a number of his activities including standing, walking, sleeping, driving and climbing stairs. The ALJ noted with record support that the DIME physician’s rating in 2003 specifically assigned the claimant an impairment for loss of function and loss of strength associated with the SI nerve root. Exhibit 5 at 7-8. The ALJ noted that the claimant had in 2002 reported to Dr. Schakraschwili that he had lower back pain that radiated into his right leg and caused a lack of balance and weakness in his right leg. Tr. (3/24/2008) at 33; Exhibit 7 at 1, 3, 32. The ALJ further noted that the claimant informed the DIME physician in 2003 that that he had significant numbness and tingling in his right lower leg that interfered with a number of daily activities including sleeping, lifting, bending and driving. Exhibit 5 at 2.
We do not find that the ALJ’s order was unsupported by the evidence or contrary to law. Accordingly, we may not disturb the ALJ’s finding on appeal.
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IT IS THEREFORE ORDERED that the ALJ’s order issued May 6, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_____ John D. Baird
_____ Thomas Schrant
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IGNACIO OLIVAS SOTO, EL PRADO, NM, (Claimant).
HARTFORD CASUALTY INSURANCE COMPANY, Attn: KELLY THOMPSON, C/O: SPECIALTY RISK SERVICES, DENVER, CO, (Insurer).
HALL EVANS LLC, Attn: DOUGLAS J KOTAREK, ESQ, DENVER, CO, (For Respondents).
TEAM AMERICA CORPORATION, Attn: ALEJO RANGEL, SOUTH JORDAN, UT, (Other Party).
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