W.C. No. 4-746-012.Industrial Claim Appeals Office.
May 18, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mottram (ALJ) dated December 23, 2009 that denied the claimant’s petition to reopen the claim. We affirm.
A hearing was held on the issue of whether the claimant’s claim should be reopened and, if so, whether she was entitled to medical benefits and to temporary total disability benefits. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. On January 2, 2008 the claimant sustained a compensable injury to her back. She received medical treatment from Dr. Kinder, who at one point reported that she was nearly hysterical and refused to cooperate with the doctor’s attempt to take a history and perform an examination. Dr. Kinder noted that his examination was not consistent with the claimant’s description of the injury. He released her to return to work with no lifting. She returned to Dr. Kinder on January 14, 2008 with continued complaints of severe pain. He released her at that point to full duty with no recommended follow-up care. Dr. Kinder stated that the claimant reached maximum medical improvement on January 14, 2008 with no permanent impairment. The respondents filed a final admission of liability on February 14, 2008, admitting for two days of temporary total disability benefits and no permanent impairment. The claimant did not object to the final admission and the claim closed.
The ALJ found that the claimant testified that she continued to experience low back pain and that she treated with Dr. Thielen for other conditions; however, she did not complain to her of low back pain. She stated that in November 2008 she sought treatment at an emergency room. In December 2008 the claimant was diagnosed with a
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likely disc injury and underwent an MRI test that revealed disc protrusions at the L4-5 and the L5-S1 levels of her spine. The ALJ weighed the conflicting lay and medical testimony and found that the claimant failed to show that her back condition, including the herniated discs, were related to her January 2, 2008 compensable injury. The ALJ credited the medical records over the testimony of the claimant and found that the symptoms caused by the herniated discs did not occur until 11 months following the injury. The ALJ also entered factual findings concerning the claimant’s job separation and concluded that she was responsible for her termination from employment.
Based upon his factual findings, the ALJ concluded that the claimant failed to show that her condition had worsened as a result of the compensable injury. Accordingly, he denied the claimant’s petition to reopen.
The claimant appealed and argues that the ALJ “erred as a matter of fact and law” in determining that she failed to show that her current condition is not related to the compensable injury. The claimant also argues that the ALJ erred in ruling that the claimant was responsible for her termination from employment. We are unpersuaded that the ALJ committed reversible error or abused his discretion.
We initially note that § 8-43-303 C.R.S. 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, 197 P.3d 220, (Colo. App. 2008); Cordova v. Industrial 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. Industrial 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.
Moreover, whether the claimant•s condition is due to the natural progression of the pre-existing condition or a new industrial accident is one of fact for resolution by the
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ALJ. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo. App. 1999). Further, the questions whether the claimant proved a worsened condition, and whether the worsening was causally related to the industrial injury, are factual in nature.
Because of the factual nature of these questions, we are bound by the ALJ•s determinations in this regard if they are supported by substantial evidence in the record. Section 8-43-304(8), C.R.S. City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997). Substantial evidence is that quantum of proof which would support a reasonable belief in the existence of a fact without regard to contradictory evidence and conflicting inferences. Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo. App. 1996). We note that expert medical opinion is not needed to prove or disprove causation where circumstantial evidence supports the ALJ’s inferences regarding the claimant’s condition. Savio House v. Dennis, 665 P.2d 141 (Colo. App. 1983). Where expert medical opinion is presented, however, it is solely for the ALJ as fact finder to weigh the evidence and resolve any conflicts. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo. App. 1990).
Here, the ALJ’s factual findings are supported by substantial evidence and his inferences are reasonable ones from the factual record. The ALJ’s dispositive determination was that the claimant failed to carry her burden of showing that any worsening of her condition was caused by her compensable occupational disease. As we read the ALJ’s order, he relied in part upon the medical opinions of Dr. Kinder and Dr. German and upon the factual circumstances surrounding the claimant’s complaints of increased symptoms. In this latter regard, we note that the ALJ considered certain of the claimant’s testimony to lack credibility and therefore to be unpersuasive. And, contrary to the claimant’s argument, we are unpersuaded that the record contains such hard, certain evidence that it was error as a matter of law for the ALJ to reject the claimant’s testimony as not credible and persuasive. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1970). Rather, to the contrary, where the hearing officer rejected the claimant’s testimony as not credible it was in most cases because conflicting medical evidence rebutted that testimony.
The ALJ found that the claimant’s condition at the time of her request to reopen the claim was not caused by or the result of the natural progression of her industrial injury. It is evident from the ALJ’s order that the basis for his determination was largely the length of time that elapsed between the closure of the claim with no permanent impairment and the development of symptoms of the claimant’s disc problems. The ALJ’s inference in this regard is a reasonable one from the factual record. His findings are supported by substantial evidence and he correctly applied the relevant legal principles. The claimant’s argument on appeal is essentially a request that we reweigh the factual record and draw inferences of our own different from those of the ALJ’s.
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However, because his findings are supported by the record and his conclusions by the applicable law, we may not do so. We disagree with the claimant’s argument that the factual record admits of only a single result and that the ALJ was compelled to reopen the claim. In our view the ALJ did not abuse his discretion in refusing to reopen the claimant’s claim.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 23, 2009, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Curt Kriksciun
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ANNETTE STEVENSON, 848 ASHLEY ROAD, CRAIG, CO, (Claimant).
WAL MART, CRAIG, CO, (Employer).
AMERICAN HOME ASSURANCE, Attn: LISA SMITH, BENTONVILLE, AR, (Insurer).
THE LAW FIRM OF JOANNA C JENSEN, Attn: JOANNA C JENSEN, ESQ., GRAND JUNCTION, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK, PC, Attn: DIANE MURLEY, ESQ., GRAND JUNCTION, CO, (For Respondents).