W.C. No. 3-932-130.Industrial Claim Appeals Office.
November 22, 2011.
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Donald E. Walsh (ALJ) dated June 27, 2011, that denied and dismissed the respondent’s petition to reopen and determined that the claimant’s medical treatment was authorized and reasonable and necessary. We affirm the ALJ’s order and deny the claimant’s request for attorney fees.
The claimant sustained an admitted injury on December 16, 1988, when 70 pounds of frozen beef fell onto her right arm. The respondent admitted for permanent total disability benefits in January of 1992. On July 22, 2010, the respondent filed a petition to reopen. The petition to reopen states that the matter should be reopened because: “Change of Condition — Claimant is employed part-time, § 8-43-303(3), C.R.S.”
The respondent filed an application for hearing on August 13, 2010. In the application for hearing, in addition to other issues, the respondent checked the issue “Petition to Reopen Claim,” and typed in next to it, “§ 8-43-303(3), C.R.S.” In the section for other issues to be heard at the hearing, the respondent stated:
Upon information and belief of Respondents, claimant has been working and is no longer permanently and totally disabled. Insofar and (sic) the law may require a reopening to adjust average weekly wage (Respondent does not concede that the issue of AWW is closed), reopening pursuant to § 8-43-303(2)(a) is also an issue.
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A hearing was held on the issues of the petition to reopen, authorization of Beth A. Lancaster, D.C. and the reasonableness and necessity of certain medical treatment. After hearing, the ALJ entered an order denying the petition to reopen. The ALJ determined that the statute cited by the respondent as the sole basis upon which the respondent sought to reopen the claim did not exist on the claimant’s date of injury. However, the ALJ went on to apply that statute to the facts of this case and to conclude that the petition to reopen should be denied under § 8-43-303(3), C.R.S.
The ALJ further determined that Dr. Lancaster was an authorized treating physician in the chain of referral and that Dr. Lancaster’s treatment was reasonable and necessary. The ALJ also determined that the claimant’s prescribed medications were reasonable and necessary.
The respondent filed a timely petition to review and brief in support of the petition to review, asserting that Dr. Lancaster could not be an authorized treating physician because she was not Level I accredited and that the ALJ failed to address the issue presented by the respondent, which was “whether the claimant’s condition had improved to the extent that she was no longer permanently and totally disabled as evidenced by the fact that she participated in activities that indicate she had the ability to return to employment.” Respondent’s Brief at 1.
The claimant then filed a Motion to Strike Issue Contained in Respondents’ Brief in Support of Petition to Review, Combined with Claimant’s Brief in Opposition to Petition to Review and Request for Attorneys Fees and Costs Pursuant to C.A.R. 39 and 39.5. The claimant sought to strike the respondent’s issue concerning the authorization of Dr. Lancaster. According to the claimant, the respondent erroneously stated that Dr. Lancaster was not Level I accredited when, in fact, she was listed as Level I accredited on the Division of Workers’ Compensation website. In the reply to claimant’s motion, the respondent admitted the error was caused by an inadvertent mistake. Based on this admission we assume that the respondent has withdrawn this issue on appeal and, therefore, we do not address the merits here.
I.
The only remaining issue on appeal is whether the ALJ failed to address the respondent’s argument that the claimant’s condition had improved to allow her to participate in activities that would indicate she had the ability to return to employment. Respondent’s Brief at 1. The respondent does not dispute the
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fact that they are seeking to reopen pursuant to § 8-43-303(3), C.R.S. Although the transcripts indicate there was some confusion concerning the applicable statute, we understand the respondent to continue to proceed under § 8-43-303(3), C.R.S. Tr. (4/8/11) at 52-63.
Contrary to the respondent’s assertion, we do not see reversible error on this issue. Initially, we agree with the ALJ’s determination that § 8-43-303(3), C.R.S. is not applicable to this claim because the date of injury is prior to the effective date of the statute. Subsection 3 of § 8-43-303, C.R.S., was added by Senate Bill (SB) 218. SB 218 only applies to claims with a date of injury on or after 1991. See Colo. Sess. Laws 1991, Ch. 219 at 1342 Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo. App. 1992) (General Assembly expressly intended SB 218 to apply prospectively). Because the claimant’s date of injury is 1988, the ALJ correctly concluded that § 8-43-303(3), C.R.S. does not apply. We are not aware of any authority, and the respondent has not provided any, to support the contention that § 8-43-303(3), C.R.S., is applicable to this claim.
However, in the alternative, even if the statute were applied to the facts of this case, we perceive no error in the result reached here. See Skinner v. Industrial Commission, 152 Colo. 97, 381 P.2d 253 (1963) (no reversible error if correct result reached).
Section 8-43-303(3), C.R.S. provides, in pertinent part:
In cases where a claimant is determined to be permanently totally disabled, any such case may be reopened at any time to determine if the claimant has returned to employment. If the claimant has returned to employment and is earning in excess of four thousand dollars per year or has participated in activities which indicate that the claimant has the ability to return to employment, such claimant’s permanent total disability award shall cease and the claimant shall not be entitled to further permanent total disability benefits as a result of the injury or occupational disease which led to the original permanent total disability award.
Here, the ALJ found that the respondent failed to show that the claimant returned to work and was earning in excess of $4000. ALJ Order at 3 ¶ 4. The ALJ also found that the respondent provided insufficient evidence to establish that it is more likely than not that the claimant has participated in activities which indicate that the claimant has the ability to return to work. ALJ Order at 3 ¶ 5. Contrary to the respondent’s assertion, we read the ALJ’s order to address all of
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the requisite elements of § 8-43-303(3), C.R.S.
The reopening authority granted to an ALJ by § 8-43-303, C.R.S. “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 v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). 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. In the absence of fraud or clear abuse of discretion, the ALJ’s decision concerning reopening is binding on appeal. See Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082 (Colo. App. 2002). An abuse of discretion occurs when the ALJ’s order is beyond the bounds of reason, or where it is unsupported by the evidence or contrary to law. Id.
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, his credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995).
Here, the record amply supports the ALJ’s determination that the respondent failed to show that the claimant participated in activities which indicate that the claimant has the ability to return to work. Specifically, the ALJ found that the claimant had been out of the workforce and that she is incapable of returning to the workforce. A friend of the claimant, Iona Macaluso, testified that approximately 20 times over a 5 year period the claimant delivered sandwiches for her business. Depo. at 8. Macaluso testified that she did not pay the claimant for the delivery of sandwiches. Depo. at 12. Macaluso further testified that there were times when she would ask the claimant to help but that the claimant was not able to help due to her injuries and the fact that she was unable to get out of bed. Depo. at 22.
Dr. Furmansky testified that the claimant’s injuries made it impossible to predict the functional abilities of the claimant on a day to day basis. Specifically, Dr. Furmansky testified that the claimant’s intermittent depressive episodes, anxiety, inconsistent activities of daily living and decreased adaptation to stress would prohibit the claimant from being able to sustain regular employment. Tr. (5/13/11) at 34-35. In Dr. Furmansky’s opinion, the claimant would not be able to perform and get to work. Tr. (5/13/11) at 36. Dr. Furmansky further testified that the claimant’s “severe mental impairment” would affect many aspects of the claimant’s ability to return to employment. Tr. (5/13/11) at 74.
The respondent essentially requests that we reweigh the factual record and draw inferences of our own different from those of the ALJ’s. However, because the ALJ’s
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findings are supported by the record and his conclusions by the applicable law, we may not do so. Section 8-43-301(8), C.R.S.
To the extent that the respondent argues that the “change of condition” is relevant under § 8-43-303(3), C.R.S., the ALJ was not persuaded and as such, was not required to address the evidence in the order. Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000); Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970) (ALJ not required to expressly cite evidence before rejecting it as unpersuasive). In any event, there was evidence that the claimant’s condition has stayed the same since she was placed at maximum medical improvement. Dr. Pitzer testified, “It does not appear that anything has substantially changed in those 17 or 18 years since she was placed at MMI.” Tr. (4/8/11) at 24. Vocational counselor, Ms. Montoya agreed that the claimant’s ability to return to work had not improved since 1992, and in fact may have deteriorated. Tr. (4/8/11) at 38. Similarly, Dr. Furmansky testified that in his opinion, the claimant “appears to be in the same condition, possibly worse . . .” Tr. (5/13/11) at 41. Vocational counselor, Michael Fitzgibbons, testified that from a vocational perspective, the claimant’s abilities decreased since 1992 because of her age, the length of time she has been out of the workforce and lack of transferrable skills. Tr. (5/13/11) at 91.
Because the ALJ’s determination that the respondent failed to carry the burden to reopen the claimant’s award of permanent total disability under § 8-43-303(3), C.R.S. is sufficiently supported by the record, we perceive no abuse of discretion under these circumstances.
II.
The claimant requests attorney fees and costs pursuant to C.A.R. 39 and 39.5 and § 8-43-301(14), C.R.S. The claimant contends that the respondent’s attorney signed the petition to review and the brief in support thereof without a reasonable inquiry as to the accreditation of Dr. Beth Lancaster and the respondent’s attempt to retry the case below is improper. Respondent’s Brief at 24. We deny the request for attorney fees and costs.
Initially, we note that the rules of civil procedure do not apply in workers’ compensation cases insofar as they are inconsistent or in conflict with procedures and practices established by the Act Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo. App. 1988). As noted by the respondent, both § 8-43-301(14), C.R.S. and C.A.R. 39 and 39.5 set forth provisions for awarding attorney fees. To the extent that C.A.R. 39 and 39.5 are inconsistent with the provisions of the Workers’ Compensation Act, they are
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not applicable. Cf. Gardner v. Friend, 849 P.2d 817 (Colo. App. 1992) (provisions of the Act are complete, definitive and organic, without the need of supplementation).
Section 8-43-301(14), C.R.S., states that attorney fees may be awarded against an attorney who submits a petition to review or brief in support of a petition “which is not well grounded in fact and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” Although we do not agree with the respondent’s arguments, we do not consider the petition to review and appellate brief to be so lacking in merit that they may be classified as not well grounded in fact or law. Therefore, we decline to award attorney fees. See BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo. App. 1997) (resort to a judicial forum is not bad faith as long as there is a reasonable basis for appeal).
IT IS THEREFORE ORDERED that the ALJ’s order dated June 27, 2011 is affirmed.
IT IS THEREFORE FURTHER ORDERED that the claimant’s request for attorney fees is denied.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Brandee DeFalco-Galvin
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STEVEN U. MULLENS, P.C., Attn: PATTIE J. RAGLAND, ESQ., COLORADO SPRINGS, CO, (For Claimant).
THOMAS POLLART MILLER LLC, Attn: MARGARET D. KECK, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).
SEDGWICK CMS, Attn: MS. SHARMIE JENSEN, LEXINGTON, KY, (Other Party).
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