W.C. No. 4-109-384Industrial Claim Appeals Office.
November 6, 1995
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Stuber (ALJ) which denied and dismissed his petition to reopen. We affirm.
The record reveals that the claimant suffered a compensable low back injury on September 25, 1991, during his employment as a street sweeper. The claim was closed pursuant to the respondents’ filing of an uncontested Final Admission of Liability dated August 17, 1992. The admission listed the date of maximum medical improvement (MMI) as April 7, 1992.
In October 1994, the claimant filed a petition to reopen the claim based upon a worsening of condition. In support, the claimant filed the May 23, 1995 report of Dr. Burke which states that the claimant presents with a worsening lumbar disc disease, “most likely related to the original Work Comp injury with some aggravation since that time.”
The ALJ determined that the claimant failed to sustain his burden to prove that he suffered a worsening of his condition as the natural consequence of the original industrial injury. Consequently, the ALJ denied the petition to reopen.
On review, the claimant concedes that he bore the burden to establish by a preponderance of the evidence that he suffered a worsening of his condition as a result of the original industrial injury. The claimant also concedes that the determination of whether he sustained his burden of proof is a question of fact for the ALJ. However, the claimant contends that he presented prima facie evidence of a worsened condition through his testimony and the May 23 report of Dr. Burke, and the respondents failed to refute this evidence with substantial evidence to the contrary. Therefore, the claimant argues that the ALJ was compelled to reopen the claim. We reject this argument.
The claimant mistakenly asserts that the ALJ was required to credit his testimony. Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970). To the contrary, the ALJ was free to credit all, part or none of the claimant’s testimony. El Paso County Department of Social Services v. Donn, 865 P.2d 877
(Colo.App. 1993). Similarly, the ALJ was not bound by Dr. Burke’s May 23 opinions, even if unrefuted. Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981).
The pertinent issue is whether there is substantial evidence in the record to support the ALJ’s determination that the claimant did not suffer worsening of his condition as a natural consequence of the original industrial injury. Furthermore, in applying the substantial evidence test we must disregard the existence of evidence which, if credited, might support the conclusions sought by the claimant. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
The ALJ found that prior to MMI the claimant underwent a functional capacity evaluation, and a course of work hardening. The ALJ found that after the work hardening, the claimant demonstrated a functional capacity in the “medium work category.” The ALJ found that a second functional capacity evaluation was performed on July 20, 1994, and the results indicated that the claimant was capable of returning to work in the “heavy” work category which included his prior employment as a street sweeper. These findings are consistent with the medical record.
Notwithstanding the claimant’s argument to the contrary, the claimant’s functional capacity is some evidence of the claimant’s medical condition. Consequently, an increase in the claimant’s physical abilities supports an inference that the claimant’s medical condition has improved, rather than deteriorated. See Lantern Inn v. Industrial Commission, 624 P.2d 929 (Colo.App. 1981) (where there is no direct evidence the issue is whether the ALJ’s inferences were permissible ones in light of the totality of the circumstances). Therefore, the record contains substantial evidence to support the ALJ’s finding that the claimant’s condition has “not appreciably worsened since” August 1992.
Further, the claimant testified that his back pain had increased since May 1992, and that he experienced several pain “flares,” which required emergency room treatment. Tr. pp. 9, 10. However, the ALJ found that the medical records did not support the claimant’s contention that he received emergency room treatment several times between May 1992 and February 1994. Instead, the ALJ found that the hospital records revealed no emergency room visits prior to February 1994, which was one month after the claimant began working as a dishwasher. This finding is supported by the evidence. Moreover, it is not improbable to infer from the absence of medical treatment between May 1992 and February 1994, that the alleged need for additional medical treatment is related to the claimant’s employment as a dishwasher and not the original industrial injury. See Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951) (the issue on review is whether the evidence when viewed in the light most favorable to the prevailing party is sufficient to support the ALJ’s finding).
Even Dr. Burke’s May 23 report suggests that the claimant’s worsened condition may be attributable to an “aggravation.” Therefore, we must uphold the ALJ’s finding that any worsening of the claimant’s condition is due to the claimant’s employment as a dishwasher. See Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995).
The ALJ’s factual determinations support his conclusion that the claimant failed to sustain his burden of proof. Furthermore, we may not substitute our judgment for that of the ALJ with regard to the sufficiency and probative weight of the evidence, and decline the claimant’s invitation to do so. General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994); Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992). Therefore, the ALJ did not abuse his discretion in failing to reopen the claim. See Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985) (abuse of discretion occurs where the ALJ’s order exceeds the bounds of reason).
IT IS THEREFORE ORDERED that the ALJ’s order dated March 23, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed November 6, 1995 to the following parties:
Larry Westwood, 5460 Harlan St., #37, Arvada, CO 80002
Lynn Jones d/b/a Jefferson Co. Sweeping, 7537 W. Trail Dr. South, Littleton, CO 80125
Colorado Compensation Insurance Authority, Attn: C. Kriksciun, Esq. (Interagency Mail)
Glen B. Goldman, Esq., and Joseph W. Ruppert, Esq., 950 S. Cherry St., Ste. 1400, Denver, CO 80222
(For the Claimant)
Jill Haberland, Esq., 1873 S. Bellaire St., Ste. 1400, Denver, CO 80222
(For the Respondents)
BY: _______________________