W.C. No. 4-639-152.Industrial Claim Appeals Office.
January 22, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated August 20, 2009, that denied the dismissed the claimant’s petition to reopen her claim. We affirm.
The claimant sustained an admitted injury to her left knee on January 27, 2005. The mechanism of the claimant’s injury involved pivoting to her right to avoid boxes that fell while she was unloading a truck. Dr. McMillan performed an arthroscopic surgery on March 16, 2005. The claimant’s authorized treating physician, Dr. Jenks, placed the claimant at maximum medical improvement as of August 8, 2006.
The claimant underwent a magnetic resonance imaging scan of her left knee on September 6, 2006, which showed severe degenerative changes. Dr. Jenks and Dr McMillan suggested a total knee replacement surgery to address the effect of the claimant’s severe degenerative joint disease. Dr. McMillan opined that the claimant’s left knee problems were related to her injury at the employer. Exhibit 6 at 2. Dr. Jenks opined that because the claimant had a similar disease processes in both knees; it was unlikely that the disease process in the claimant’s left knee was caused by her injury at the employer on January 27, 2005. Exhibit B at 6.
The insurer filed a Final Admission of Liability on March 6, 2007 based upon Dr. Jenks’ recommendation of no maintenance care. The claimant’s claim closed by operation of law. On February 6, 2009 the claimant filed a petition to reopen based on an alleged change in condition of her left knee.
Page 2
The ALJ found that the claimant had failed to carry her burden to show that her worsened left knee condition was proximately caused by the mechanism of the industrial injury. The ALJ found that Dr. McMillan’s opinion was based on assumption, but failed to show it medically probable that a total knee replacement surgery was proximately caused by the compensable injury. The ALJ credited Dr. Jenks’s medical opinion that the claimant’s injury at the employer caused a temporary and acute aggravation of her left knee condition that was addressed by Dr. McMillan’s arthroscopic surgery. The ALJ found the claimant had failed to show it more probably true that her condition from her left knee injury was worsened. The ALJ found that the claimant’s left knee condition was the proximal result of the progression of her underlying disease process, and not the result of her injury at the employer.
Therefore, the ALJ found that the claimant’s need for total knee replacement surgery to address the effects of her underlying severe degenerative joint disease was unrelated to her injury at the employer. The ALJ denied and dismissed the claimant’s petition to reopen her claim. The claimant contends on appeal that the ALJ’s determination is not supported by substantial evidence in the record. We disagree.
Section 8-43-303, C.R.S., 2009, 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. 2009. 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 contends that the ALJ’s conclusion that the recommended knee surgery is unrelated to her 2005 industrial injury is based on a misinterpretation of the
Page 3
facts and is unsupported by substantial evidence in the record. The claimant argues that the ALJ erred in basing, at least in part, his finding that the claimant’s knee had become symptomatic because of the natural progression of the degenerative process because the claimant had degenerative changes in both knees. The claimant argues that the claimant’s symptoms are the direct result of the specific injurious events and not a part of the natural progress of her underlying degenerative findings. We are not persuaded to interfere with the ALJ’s order.
Citing a report from Dr. McMillan, the claimant argues that her knee pain was not caused by a natural progression but by specific unnatural injurious events. The claimant argues that these specific unnatural injurious events were the industrial injury and “sitting with her right knee crossed under her left leg and had a sudden pain in the medial aspect of the right knee.” Exhibit C. In our view, this medical report does not compel the conclusion that crossing of her legs must be viewed as an unnatural injurious event as opposed to some evidence of the natural progression of a degenerative process in the claimant’s knee. We also note that the ALJ is presumed to possess special expertise and competence in dealing with medical evidence. Thus, we presume that the ALJ is competent to evaluate evidence in cases of this character. Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941).
In any event, the ALJ was free to credit the opinions of Dr. Jenks that he could not attribute her degenerative arthritis in her left knee to her work injury. Exhibit B at 7. 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). The ALJ found the opinions of Dr. Jenks, the treating physician, more persuasive than the opinions of the surgeon, Dr. McMillan. This assessment of expert testimony is a matter within the discretion of the ALJ as fact finder Rockwell Int’l v. Turnbull, 802 P.2d 1182, 1183 (Colo. App. 1990).
The claimant also argues that the ALJ misinterpreted the medical evidence when he found that “Dr. McMillan’s opinion seems to be based on the assumption that claimant’s injury at employer caused the degenerative disease process in her left knee.” The claimant argues that nowhere in the medical records is there support for such a finding and that Dr. McMillan specifically recommended a left knee replacement as necessary to address the claimant’s industrial injury. The claimant cites various portions of the medical record, which support a finding that Dr. McMillan’s opinion was that the industrial injury caused the need for the proposed surgery.
However, here the ALJ found that Dr. McMillan stated, “I think it is reasonable to assume that the left knee problem is due to the pivoting injuries to the left knee and therefore this is work related.” (emphasis added). Exhibit 6 at 2. We note that to the
Page 4
extent an expert’s opinions are subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the expert’s statements. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
Moreover, the ALJ made other uncontested findings of fact, which brought into question the causal connection between the claimant’s industrial injury and any worsening in her left knee. 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 ALJ found that the claimant testified that her left knee condition continued to deteriorate since reaching maximum medical improvement. The ALJ found that subsequent to her industrial injury the claimant worked as a corrections officer, which required walking that hurt her left knee. The claimant also worked as a grocery cashier, which involved standing for eight hours a day. This work also hurt the claimant’s left knee and she experienced swelling and popping while working. These findings are consistent with the ALJ’s conclusion that it is unlikely that the present disease process in the claimant’s left knee was caused by her industrial injury in 2005. Further, the ALJ’s conclusion is supported by the opinions expressed by Dr. Jenks. In our view, there is substantial evidence in the file to support the ALJ’s determination. Consequently, we are not persuaded that the ALJ’s denial of the claimant’s request to reopen her claim constituted an abuse of discretion.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 20, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Page 5
STEPHANIE ARCHULETA, DEL NORTE, CO, (Claimant).
DUCKWALL-ALCO STORES, INC., Attn: RHONDA EDWARDS, MONTEVISTA, CO, (Employer).
LIBERTY MUTUAL INSURANCE COMPANY, Attn: MALCOLM CHANDLER, ENGLEWOOD, CO, (Insurer).
FOGEL, KEATING, WAGNER, POIDORI SHAFNER, Attn: NICK D FOGEL, ESQ., DENVER, CO, (For Claimant).
LAW OFFICES OF RICHARD P MYERS, Attn: DAVID G KROLL, ESQ., DENVER, CO, (For Respondents).
Page 1