W.C. No. 4-634-136.Industrial Claim Appeals Office.
June 8, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh dated December 13, 2010 that denied his petition to reopen his claim based on an alleged worsening of his condition. We affirm.
Several of the ALJ’s findings of fact are summarized as follows. The claimant worked as a framer and sustained a compensable injury on December 2, 2004, when he dropped to the ground after hanging from a truss about eight feet high. An MRI showed a moderate disc protrusion at the L5-S1 level. Medical records indicated that the claimant sustained a low back strain in 2001. The claimant returned to modified duty. The claimant resigned in March 2005 and went to New Mexico where he was incarcerated for parole violations. The claimant spent time in and out of prison for the next several years.
Dr. Delahoussaye treated the claimant in New Mexico, placed the claimant at maximum medical improvement and provided a permanent impairment rating. Dr. Hemler testified that disc bulges such as the claimant’s tend to stabilize or shrink over time, which is what was observed on the claimant’s second MRI. He also noted symptoms related to another level of the claimant’s spine, the L4 level. Dr. Hemler opined that the claimant’s current symptoms are not related to his work injury. The ALJ credited Dr. Hemler’s opinions and determined that the claimant failed to establish that his current condition is related to his work injury in 2004. The ALJ specifically found the claimant’s testimony not credible and denied the claimant’s petition to reopen his claim.
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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 discretio 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, his credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995).
The claimant asserts that the ALJ’s findings that he went 16 months without seeking medical treatment while out of prison and that the claimant did not experience symptoms during that time are contrary to evidence in the record. The claimant refers to three exhibits in support of his contention that he sought medical treatment contrary to the ALJ’s findings. However, as noted by the respondents in their brief, the claimant’s complaint of back pain related to trauma sustained when he backed into something. Exhibit I at 98. Otherwise, the claimant complained of a lump on his neck. Exhibit I at 97. Moreover, a medical report dated May 31, 2007 indicates that the claimant sustained a L5-S1 disc injury that resolved. Exhibit I at 96. Another exhibit that the claimant references merely indicates that the claimant was referred to a vocational rehabilitation agency. Exhibit 4 at 67.
The claimant takes issue with the ALJ’s finding that in the event an MRI shows a worsened condition it was likely caused by an intervening activity, rather than a worsening of the claimant’s industrial injury. In support of that finding, the ALJ found that the claimant was written up for participating in a jail riot and arrested for being in a fight. The claimant was inconsistent in seeking medical care and there were long periods of time when the claimant’s location and activities were unaccounted for. The ALJ inferred from this evidence that the claimant had not been sedentary since his industrial injury. The claimant argues that the ALJ cannot find that the claimant suffered no symptoms for a 16-month period as discussed above and yet also find that an intervening event caused a worsening of the claimant’s condition. However, we do not understand the ALJ to have made contradictory findings. Instead, we understand the ALJ to have found on the one hand that the claimant had no symptoms for a period of 16 months. On
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the other hand the claimant engaged in altercations and was apparently active for several years, which would probably explain any worsened condition that an MRI might reveal. Moreover, the ALJ did not unequivocally find that the claimant had a worsened condition caused by an intervening event. Instead, the ALJ found that any worsening as reflected by an MRI was likely due to an intervening event.
The claimant further asserts that the ALJ wrongfully imposed on him the obligation to establish the absence of an intervening cause of his condition. The claimant refers to the ALJ’s factual findings to the effect that any change in the claimant’s condition is most likely because of an intervening event. However, as previously indicated, the ALJ merely found that any change in the claimant’s condition was not due to the work injury, but probably due to an intervening event. The ALJ was not persuaded that the claimant’s condition had worsened in the first instance. In this regard, the ALJ credited Dr. Hemler’s opinions. According to the ALJ’s findings and conclusions, Dr. Hemler reviewed MRI examinations which revealed “equivocal findings of a potential worsening of the disc at L5-S1” and was not certain that the MRI results represent a progressive worsening of the claimant’s condition. Findings of Fact, Conclusions of Law, and order at 5, ¶ 8. The ALJ also found that Dr. Hemler identified a potential intervening injury at another level of the claimant’s spine. In addition, Dr. Hemler noted that disc bulges such as that of the claimant tend to shrink or stabilize over time as indicated by the claimant’s second MRI.
The claimant also takes issue with the ALJ’s treatment of Dr. Delahousseye’s determinations surrounding maximum medical treatment and the claimant’s need for medical treatment. The ALJ found that Dr. Delahousseye placed the claimant at maximum medical improvement and never removed the claimant from that status. The claimant refers to evidence indicating that Dr. Delahousseye considered the claimant to be temporarily disabled and in need of medical treatment to improve the claimant’s condition. However, the ALJ did not credit Dr. Delahousseye’s opinions. See 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). Instead, the ALJ credited Dr. Hemler’s opinions in finding that the claimant failed to establish that his current condition was related to his industrial injury. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (ALJ may credit all, part, or none of an expert’s testimony); Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo. App. 1992) (ALJ free to credit one expert opinion to the exclusion of a contrary opinion); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo. App. 1990).
The claimant had the burden of proof in seeking to reopen his claim for a worsened condition. Richards v. Industrial Claim Appeals Office, 996 P.2d 756, 758 (Colo. App. 2000).
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Change of condition refers to a change in the condition of the original compensable injury or to a change in a claimant’s physical or mental condition that can be causally connected to the original compensable injury. Chavez v. Industrial Comm’n, 714 P.2d 1328, 1330 (Colo. App. 1985). The ALJ was not persuaded that the claimant met his burden to establish a worsening of his condition and the evidence in the record, although conflicting, fully supports the ALJ’s decision. We find no abuse of discretion under the circumstances.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 13, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Dona Rhodes
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WESLEY GONZALES, P O BOX 325, CARRIZOZO, NM, (Claimant).
DAVID H CONSTRUCTION INC., TRINIDAD, CO, (Employer).
PINNACOL INSURANCE, Attn: HARVEY F. FLEWELLING, DENVER, CO, (Insurer).
KONCILJA AND KONCILJA, PC, Attn: ROBERT D. BAUMBERGER, ESQ., PUEBLO, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN, Attn: LYNDA S. NEWBOLD, ESQ., DENVER, CO, (For Respondents).
WESLEY GONZALES, RUIDOSO DOWNS, NM, (Other Party).
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