W.C. No. 4-697-298.Industrial Claim Appeals Office.
March 9, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) dated October 25, 2010, that denied and dismissed the claimant’s petition to reopen. We affirm.
The claimant suffered an admitted bilateral shoulder and elbow industrial injury on July 10, 2006. On September 26, 2006 the claimant underwent an arthrogram of his left shoulder that showed a recurrent tear of the left rotator cuff tendon. On August 3, 2006 the claimant underwent an MRI which revealed a retracted full thickness tear of the supraspinatus tendon. The claimant underwent surgeries. The claimant obtained a Division-sponsored independent medical examination (DIME). The DIME physician placed the claimant at maximum medical improvement (MMI) as of December 8, 2008 and provided the claimant with a 25 percent whole person impairment rating. The DIME physician opined that the claimant should not undergo a fourth left shoulder surgery. The respondents filed a Final Admission of Liability, dated June 16, 2009 based on the report of the DIME physician. However, the claimant objected and a hearing was held before ALJ Mottram. ALJ Mottram found that the claimant had failed to prove by a preponderance of the evidence that he was permanently totally disabled but granted a whole person impairment award. On February 16, 2010 the claimant reported worsening pain and requested TTD from that date. An MRI taken in February 2010 demonstrated a recurrent full thickness tear of the rotator cuff. The claimant then sought to reopen the claim.
The ALJ found that the medical record and objective examination did not support the claimant’s claim of a changed condition. The ALJ found that the claimant’s request
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for a fourth left shoulder surgery was not a reasonable or necessary medical treatment. The ALJ concluded that the claimant had failed to establish by a preponderance of the evidence that he suffered a worsened condition and denied the Petition to Reopen. The claimant appeals contending that the ALJ’s findings of fact do not support the conclusions that the claimant failed to establish a worsened condition. The claimant asks that his Petition to Reopen be granted and that the ALJ’s order be reversed.
Section 8-43-303, C.R.S., permits a claim to be reopened based upon “a change in condition.” The power to reopen under the provisions of § 8 43-303 is permissive and left to the sound discretion of the ALJ. Consequently, we may not interfere with the ALJ’s decision unless the record reveals fraud or a clear abuse of discretion. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo. App. 1996); Osborne v. Industrial Commission, 725 P.2d 63 (Colo. App. 1986). An abuse of discretion is not shown unless the ALJ’s order is beyond the bounds of reason, as where it is contrary to the law or not supported by the evidence Rosenberg v. Board of Education of School District No. 1, 710 P.2d 1095 (Colo. 1985).
When considering the sufficiency of the evidence, we must uphold the ALJ’s factual findings if supported by substantial evidence. Section 8-43-301(8), C.R.S. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). We specifically note that we may not interfere with the ALJ’s decision to credit the testimony of a witness unless, in extreme circumstances, the testimony is overwhelmingly rebutted by such hard, certain evidence the ALJ would err as a matter of law in crediting it. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo. App. 2000).
The claimant argues that the evidence is uncontroverted that the claimant suffered a worsening of his admitted medical condition and that the change was causally connected to the original industrial injury. The claimant argues that the ALJ found that he had suffered a recurrent full thickness tear of the rotator cuff. The claimant argues that the evidence cited by the ALJ in her findings support the conclusion that the claimant’s condition has worsened since the date of MMI. The claimant argues that while it may have been within the ALJ’s discretion to deny the proposed surgical procedure, conflicts in the evidence were not properly addressed. We are not persuaded to interfere with the ALJ’s order.
Contrary to the assertions of the claimant the ALJ, in our view, made extensive findings of fact that support her determination to deny the Petition to Reopen. The following represents some of those findings. The claimant reported to Dr. Motz that after the first shoulder surgery he had stiffness and persistent problems with his shoulder. The
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claimant further reported that after the second shoulder surgery his pain really did not improve in terms of use. Dr. Motz reviewed and compared the 2010 MRI with the 2006 MRI. Dr. Motz credibly opined that the claimant was at MMI and it was “highly improbable” that a fourth surgery on the left shoulder would be successful. Exhibit C D. The claimant testified that after the prior shoulder surgery, his pain did not improve and he had persistent discomfort in his shoulders with difficulty elevating his arms above his head. Multiple MRIs before and after surgery continue to document recurrent full-thickness tear of the supraspinatus tendon with moderate atrophy of the supraspinatus muscle and the MRIs were essentially unchanged despite multiple surgeries. Dr. O’Meara examined the claimant and objectively reported that the claimant’s range of motion from prior exams remained unchanged. Exhibit G. The claimant’s subjective complaints contradict the medical records and are not deemed sufficient or substantial evidence of a changed condition.
The claimant does not directly challenge these findings of fact but directs our attention to other portions of the record noted by the ALJ that would support the conclusion that the claimant’s condition had worsened. However, the existence in the record of conflicting testimony or of evidence that would support a contrary result does not provide a basis for setting aside the ALJ’s order. See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo. App. 1999) (the existence of conflicting evidence does not lessen the import of substantial evidence in support of a finding).
The ALJ’s order resolved the conflicts in the record as she was charged to do. See Rockwell Int’l v. Turnbull, 802 P.2d 1182, 1183 (Colo. App. 1990) (ALJ, as fact-finder, is charged with resolving conflicts in expert testimony). As noted above the ALJ was persuaded by the opinions of Dr. O’Meara and was not persuaded by the claimant’s subjective complaints. Further, the ALJ was in part persuaded by Dr. O’Meara’s evaluation that while the claimant noted decreased range of motion from prior shoulder surgeries, otherwise his examination was unchanged, and by his opinion that the claimant had already reached MMI. Exhibit H at 1-2. The ALJ also noted that Dr. Millet did not indicate that the proposed surgery would reduce the claimant’s pain. Exhibit 3.
Here the ALJ’s findings are supported by substantial evidence in the record and we are therefore bound by them. Section 8-43-301(8), C.R.S. Further, those findings support the ALJ’s determination to refuse to reopen the claim and we perceive no reason to interfere with the ALJ’s exercise of her discretion on reopening.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 25, 2010 is affirmed.
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INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Krikscium
____________________________________ Thomas Schrant
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PETE MARTINEZ, 447 S. 12TH STREET, MONTROSE, CO, (Claimant).
CTSI, Attn: DEBBIE MCDERMOTT, DENVER, CO, (Insurer).
TIMOTEO GALLEGOS, ESQ., Attn: TIMOTEO GALLEGOS, ESQ., DELTA, CO, (For Claimant).
DWORKIN, CHAMBERS, WILLIAMS, YORK, BENSON EVANS, PC, Attn: DAVID DWORKIN, ESQ., DENVER, CO, (For Respondents).
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