W.C. No. 4-563-417 4-461-532.Industrial Claim Appeals Office.
May 20, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) dated November 20, 2008, that denied and dismissed the claimant’s petition to reopen in W.C. No. 4-461-532 and denied and dismissed the claim designated as W.C. No. 4-563-417. We affirm.
The appeal involves two workers’ compensation claims. The first, designated as W.C. No. 4-461-532 is an admitted claim concerning a left knee injury that occurred on February 7, 2000 (2000 claim). At the hearing, the claimant sought to reopen his 2000 claim. The second claim designated as W.C. No. 4-563-417 concerns an alleged bilateral knee injury occurring on April 26, 2002 (2002 claim). The claimant sought temporary total disability benefits on both claims for the same period and medical benefits on both claims. The ALJ denied the petition to reopen the 2000 claim and denied the claimant’s claim involving the 2002 claimed injury.
I.
On appeal, the claimant first contends that the ALJ erred in denying and dismissing the 2002 claim. The claimant argues that contrary to the ALJ’s determination that the claimant’s testimony was inconsistent and unpersuasive, a close examination of the evidence reveals that the history provided by the claimant is essentially consistent. The claimant argues that he is predominantly Spanish speaking, and understandably, there may have been misunderstandings when his statements were translated. Further,
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the claimant cites portions of the medical record that support his claim. However, we are not persuaded that the ALJ committed reversible error in denying the claim.
To prove a compensable injury, the claimant had the burden to prove by a preponderance of evidence that his 2002 claimed injury arose out of and in the course of his employment. Section 8-43-301(1)(c), C.R.S. 2008; Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999) Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). Proof by a preponderance of the evidence requires the proponent to establish that the existence of a “contested fact is more probable than its nonexistence.” Page v. Clark, 197 Colo. 306, 592 P.2d 792, 800
(1979). The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ. In resolving this issue the ALJ was not required to cite disputed evidence before rejecting it as unpersuasive. Jefferson County Public Schools v. Dragoo, 765 P.2d 636
(Colo.App. 1988). To the contrary, the ALJ is only required to enter findings on the evidence he found dispositive of the issues, and evidence and inferences inconsistent with the order are presumed to have been rejected. Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Consequently, the absence of specific findings of fact on the evidence the claimant relies upon in support of his claim does not compel a finding the ALJ failed to consider the evidence. Cf. Wecker v. TBL Excavating, Inc., 908 P.2d 1186
(Colo.App. 1995); Dravo Corp. v. Industrial Commission, 40 Colo. App. 57, 569 P.2d 345 (1977) (presumption exists that ALJ considered and gave due weight to relevant statutory factors).
Here the ALJ made the following findings of fact which are supported by substantial evidence in the record. The claimant testified that on April 26, 2002, his left foot slipped on a piece of vinyl, causing his entire body to move to the right. Tr. at 26-27. The claimant testified that he felt pain in both knees as a result of this episode. Tr. at 27. However, the ALJ noted that this version of the event bears little resemblance to the versions of the incident described in the written claims for compensation and medical record. Exhibit 21; Tr. 47-50; Exhibit C; Exhibit 11 at 1. The claimant did not seek treatment for his alleged bilateral lower extremity injuries from July 2002 through November 2005. Exhibit M at 6; Exhibit U at 3. Dr. Hattem opined that the interval of time from July 22, 2002 and November 14, 2005 lead him to the conclusion that the claimant’s current medical condition could not be related to the April 26, 2002 incident. Exhibit M at 6; Exhibit U at 3. Dr. Hattem opined that the claimant’s current condition is more likely than not related to degenerative changes of the claimant’s bilateral lower extremity, unrelated to the April 26, 2002 incident. Exhibit M at 6; Exhibit U at 3.
The claimant argues that substantial and competent evidence was presented at the hearing that would support a determination that he suffered a compensable injury on April 26, 2002. However, on review the issue is whether the ALJ’s findings of fact are
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supported by substantial evidence, not whether there is substantial evidence, which, if credited, might support a contrary determination F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Under this standard we are required to defer to the ALJ’s resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999). In our view, the ALJ’s findings of facts are supported by substantial evidence.
II.
The claimant next contends that the ALJ erred in denying his petition to reopen the 2000 claim. We are not persuaded that the ALJ abused her discretion in this respect.
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, 197 P.3d 220, (Colo.App. 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.
The ALJ found the reports and hearing testimony of Dr. Hattem to be credible and persuasive. The claimant acknowledges that Dr. Hattem opined that the claimant’s worsening of condition is not related to his work. However, the claimant argues that Dr. Hattem’s opinion is flawed and that both Dr. Diaz and Dr. Lindenbaum both opined that the claimant’s condition is now worse and is related to his work.
We first note that the weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). Further we may not set aside a credibility finding unless the testimony of a particular witness, although direct and unequivocal, is “so overwhelmingly rebutted by hard, certain evidence directly contrary” that a fact finder would err as a
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matter of law in believing the witness. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997).
Although the claimant contends that Dr. Hattem’s opinions concerning the claimant’s complaints of knee pain between 2002 and 2005 are wrong, he does not direct us to anything in the record directly establishing that Dr. Hattem’s opinion is rebutted by hard and certain evidence. In contrast we note that there are numerous reports from Dr. Hattem in the years from 2002 through 2008 and it is a reasonable inference that Dr. Hattem was in a position to evaluate the claimant’s complaints of knee pain through the relevant period of time.
The ALJ concluded that the claimant provided no credible testimony as to how his left knee condition was worse at the time of the hearing or how the symptoms differed from symptoms he had at the time of his reaching maximum medical improvement on June 8, 2001. In his brief, the claimant does not challenge the conclusion of the ALJ other than to assert, without record citation, that his testimony was that the condition of his knees progressively became worse. However, the testimony is susceptible to different inferences, and nothing in it compelled the ALJ to draw any of the permissible inferences regarding the claimant’s alleged worsened condition. Indeed, the ALJ found the testimony of the claimant to be inconsistent and unpersuasive, which was fully within her prerogative to do. The ALJ’s credibility determination is binding except in extreme circumstances, and in our opinion those extreme circumstances do not exist here. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000).
IT IS THEREFORE ORDERED that the ALJ’s order issued November 20, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
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PABLO C VALERA, AURORA, CO, (Claimant).
EXCEL MANUFACTURING, Attn: INTERNATIONAL ALUMINUM CORPORATION, C/O: CRAIG WHITE, MONTEREY PARK, CA, (Employer).
FIREMAN’S FUND INSURANCE COMPANY, Attn: GERALDINE LACY, ATLANTA, GA, (Insurer).
THE FRICKEY LAW FIRM, Attn: PAUL H LEIBOWITZ, ESQ., LAKEWOOD, CO, (For Claimant).
OVERTURF MCGATH HALL DOHERTY, Attn: CHRISTOPHER CONDIT, ESQ., DENVER, CO, (For Respondents).
FIREMAN’S FUND INSURANCE COMPANY, Attn: FRANCES HARPER, SAN FRANCISCO, CA, (Other Party).
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