W.C. No. 4-403-661.Industrial Claim Appeals Office.
October 7, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated June 11, 2008, that denied and dismissed the claimant’s petition to reopen. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant developed bilateral elbow, hand and wrist pain in 1998. The claimant was treated by Dr. Jenks who placed him at maximum medical improvement (MMI) on February 8, 2002 and determined an impairment rating for both upper extremities. A Division-sponsored independent medical examination (DIME) was requested and the DIME physician agreed with Dr. Jenks regarding MMI but determined the permanent impairment based upon loss of range of motion in the elbow. The respondents filed a final admission of liability (FAL) based upon the DIME report in 2003. In 2007 the claimant wrote to the insurer asking that the claim be reopened. The claimant chose to see saw Dr. Hall, reporting symptoms predominantly on the right side, starting in the neck and upper back, with bilateral elbow symptoms. Dr. Hall diagnosed overuse syndrome, found the claimant was more symptomatic than when he was placed at MMI and recommended treatment. The claimant was examined by Dr. Richman at the request of the respondents. Dr. Richman concluded that any worsening of the claimant’s condition did not result directly from work for the employer and recommended against further treatment. The ALJ determined that the claimant had failed to prove by a preponderance of the evidence that he suffered a change of condition as a natural consequence of his admitted occupational disease to his bilateral upper extremities.
I.
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The petition to review contains two contentions of error. The claimant first contends the ALJ erred in denying the petition to reopen. We disagree.
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. Cordova v. Indus. Claim Appeals Office, 55 P.3d 186, 189
(Colo.App. 2002); Heinicke v. Industrial Claim Appeals Office, P.3d (Colo.App. No. 07CA1640, September 4, 2008). 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. Indus. 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.
In our view, the ALJ did not abuse his discretion in denying the claimant’s petition to reopen. The ALJ, with record support, made the following findings. The claimant had persistent bilateral elbow pain when he was placed at MMI in 2002 and that has not changed. Exhibit I at 40-41; Exhibit A at 1. The claimant at the time of the hearing had more proximal symptoms in his shoulders and neck. Dr. Richman opined that the claimant’s cervical symptoms did not correlate with the work for the employer and that the claimant had worsened over time despite not working. Exhibit A at 3. Dr. Richman noted exaggerated pain behaviors likely due to psychological factors. Exhibit A at 3. Dr Richman opined that any worsening of the claimant’s condition was not related to his industrial occupational disease and further care was neither reasonable nor necessary. Exhibit A at 3.
The ALJ also found that the claimant’s problems with his shoulders and neck appeared subsequent to the time he left work for the employer nine years before. The ALJ concluded that the evidence did not adequately explain how the bilateral elbow and forearm problems, which were admitted and reasonably related to the claimant’s work, naturally resulted in later shoulder and neck problems. These findings are supported by the opinion of Dr. Richman. Exhibit A. Moreover, the claimant has failed to provide a
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transcript of the hearing and, therefore, we must presume that the ALJ’s factual findings are supported by the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).
The ALJ’s findings of fact are sufficient to permit appellate review and the ALJ resolved conflicts in the evidence based upon weighing of the evidence and his credibility determinations. See § 8-43-301(8), C.R.S. 2008. Further, the ALJ’s findings are amply supported by substantial evidence in the record and the findings support the conclusion that the claimant failed to prove entitlement to reopening of his claim. Accordingly, we perceive no basis on which to disturb the order.
II.
The claimant next contends the ALJ erred in denying the petition to reopen, since the treating physician’s opinion on causation is binding on the parties barring a DIME. Hence, the claimant argues that the ALJ should have credited that opinion and reopened the claim. We are not persuaded.
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). We first note that it is not clear what evidence the claimant relies on to suggest that a treating physician has offered an opinion on causation that would require the ALJ to make a different finding on causation. The ALJ noted that the claimant chose to be examined by Dr. Hall who offered opinions on the claimant suffering from an overuse syndrome relating to upper extremity, upper back and neck symptoms. Exhibit 2. However, as we read the ALJ’s order he did not consider Dr. Hall to be a treating physician. Therefore, we are not persuaded that a treating physician offered an opinion on causation contrary to the resolution of causation by the ALJ.
Further, we note that, in general, proof of causation is a threshold issue, which the claimant must establish by a preponderance of the evidence. The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ. Section 8-43-201, C.R.S. 2008; Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844
(Colo.App. 2000). Here, the ALJ found with record support that the record did not adequately explain how the admitted bilateral elbow and forearm problems resulted in later shoulder and neck problems. We perceive no reason to disturb this finding.
Moreover, in Cordova v. Industrial Claim Appeals Office, supra., the court explained that the opinion of the DIME physician is given “presumptive effect” only when the statute so requires, and that it does not require the DIME physician’s opinion on question of causation to be given special weight in cases of an alleged worsening of the claimant’s condition. We are not aware of any authority, and the claimant has not cited
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any, which compels an ALJ to give special weight to the opinions of a treating physician on the threshold issue of causation involving a petition to reopen. Gracia v. Minco, W. C. No. 4-513-601 (January 07, 2003). Despite the claimant’s assertion regarding the binding effect of a treating physician’s opinion on causation, under the circumstances here we perceive no reason to disturb the decision not to reopen the claim.
IT IS THEREFORE ORDERED that the ALJ’s order issued June 11, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
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CARL STROMBITSKI, PARKER, CO, (Claimant).
DOMINOS/MAN MADE PIZZA, COLORADO SPRINGS, CO, (Employer).
CAMBRIDGE INTEGRATED SERVICES, PHOENIX, AZ, (Insurer).
ALEXANDER AND RICCI PC, Attn: WILLIAM A ALEXANDER JR, ESQ., COLORADO SPRINGS, CO, (For Claimant).
TREECE, ALFREY, MUSAT BOSWORTH, PC, Attn: KATHLEEN M FAIRBANKS, ESQ., DENVER, CO, (For Respondents).
WESTERN GUARANTY FUND, Attn: MICHAEL KRAMISH, DENVER, CO, (Other Party).
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