Opinion
W.C. No. 4-204-799.
March 25, 2010.
FINAL ORDER
The claimant seeks review of a corrected order of Administrative Law Judge Cannici (ALJ) dated October 30, 2009, that granted the respondents' request to reopen and terminate the claimant's permanent total disability (PTD) benefits. The ALJ also limited the claimant's medical maintenance benefits to eight physical therapy and eight massage therapy sessions per year in Cheyenne, Wyoming and found the claimant was not entitled to a health club membership. We affirm.
The claimant suffered an admitted back injury on February 28, 1992. The claimant underwent fusion surgeries in her lower back and thoracic spine. In 1998 the claimant underwent a Functional Capacity Evaluation that resulted in significant work restrictions. The respondents filed a Final Admission of Liability for PTD benefits on October 28, 1998.
The respondents filed a petition seeking to terminate payment of PTD benefits. In support of their petition, the respondents introduced surveillance video of the claimant that documented the claimant performing various activities that included lifting, bending, kneeling and squatting. Dr. Reichhardt reviewed the surveillance video and expressed the opinion that the claimant was capable of functioning in at least a light work category. A vocational consultant retained by the respondents prepared a report expressing the opinion that based on Dr. Reichhardt's restrictions the claimant was capable of earning wages in some capacity near her residence in Cheyenne, Wyoming.
The respondents also sought to limit the claimant's medical maintenance benefits. Dr. Reichhardt expressed the opinion that the claimant should be limited to no more than eight physical therapy visits per year and eight massage therapy visits per year. Dr. Reichhardt also explained that the claimant's massage and physical therapy sessions should be conducted in the Cheyenne area rather than the claimant traveling to Colorado. Dr. Reichhardt also opined that the claimant's health club membership in Loveland would more properly be considered under "general wellness and fitness" rather than work-related.
The ALJ found that the respondents had demonstrated by a preponderance of the evidence the claimant's condition had changed since she was deemed permanently and totally disabled in 1998. The ALJ granted the respondents' request to reopen. The ALJ credited the respondents' vocational consultant opinion that the claimant was capable of earning wages in some capacity in the Cheyenne, Wyoming area and granted the respondents' request to terminate the claimant's PTD benefits. The ALJ credited Dr. Reichhardt's recommendation, limited the claimant's medical maintenance benefits entitlement to eight physical therapy and eight massage therapy sessions in Cheyenne Wyoming, and ended the claimant's entitlement to a health club membership.
I.
The claimant contends the ALJ erred in determining the respondents had proven by a preponderance of the evidence that the claimant's PTD claim should be reopened. In our opinion, the ALJ did not abuse his discretion in granting the respondents' request to reopen the claim.
Pursuant to § 8-43-303(1), C.R.S. the respondents sought to reopen the award for PTD benefits on the grounds of a change in condition. The determination whether to reopen a claim is discretionary with the ALJ and, absent fraud or a clear abuse of that discretion, we may not disturb the ALJ's order. Osborne v. Industrial Claim Appeals Office, 725 P.2d 850 (Colo. App. 1986). An abuse of discretion is only shown where the order exceeds the bounds of reason, such as where it is unsupported by substantial evidence or is contrary to law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
Further, the findings of fact upon which the ALJ bases his determination must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. In applying the substantial evidence test, we must defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences that he drew from the evidence. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003). To the extent medical evidence is presented, it is solely the ALJ's responsibility to assess the weight of that evidence and resolve any conflicts or inconsistencies. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo. App. 1990).
In our opinion the ALJ's determination that the respondents had established by a preponderance of the evidence that the claimant's condition had improved since the original award of PTD benefits and that the change justified reopening the issue of permanent disability is supported by the record. Solano v. King Soopers Inc., W.C. No. 3-950-074 (September 19, 2007).
We have reviewed the surveillance video and the inferences drawn by the ALJ by from this evidence are plausible. Exhibit 5. Dr. Reichhardt's opinions on the functioning level of the claimant in 2009 as compared to condition at the time she was deemed permanently and totally disabled in 1998 support the ALJ's determination that a reopening was justified based upon a change in condition. Exhibit K at 106.
II.
The claimant next contends that the ALJ erred in determining that the respondents had demonstrated by a preponderance of the evidence that the claimant was no longer entitled to receive PTD benefits. Here the ALJ found that employment was reasonably available to the claimant and that she is capable of earning wages.
A claimant is permanently and totally disabled if he or she is "unable to earn any wages in the same or other employment." Section 8-40-201(16.5)(a), C.R.S. The determination whether a claimant is permanently and totally disabled is fact specific and is "made on a case by case basis." Holly Nursing Care Ctr. v. Industrial Claim Appeals Office, 992 P.2d 701, 703 (Colo. App. 1999). "[I]n making a PTD determination, the ALJ may consider the effects of the industrial injury in light of the claimant's human factors, including, inter alia, the claimant's age, work history, general physical condition, and prior training and experience." Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866, 868 (Colo. App. 2001).
The ALJ's factual determinations must be upheld on appeal if supported by substantial evidence in the record. § 8-43-301(8), C.R.S.; Christie v. Coors Transp. Co., 919 P.2d 857, 860 (Colo. App. 1995), affd, 933 P.2d 1330 (Colo. 1997); see also City of Northglenn v. Eltrich, 908 P.2d 139 (Colo. App. 1995) (ALJ's decision may be set aside only if the ALJ's findings are not supported by the evidence), affd sub nom., Price v. Indus. Claim Appeals Office, 919 P.2d 207 (Colo. 1996). We are bound by the ALJ's factual determinations even if the evidence was conflicting and could have supported a contrary result. It is the fact finder's sole province to weigh the evidence and resolve contradictions in the evidence. Pacesetter Corp. v. Collett, 33 P.3d 1230, 1234 (Colo. App. 2001); Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo. App. 1995) (reviewing court must defer to the ALJ's credibility determinations and resolution of conflicts in the evidence and may not substitute its judgment for the ALJ's).
Here, the ALJ found the testimony of the respondents' vocational consultant persuasive that the claimant was capable of earning wages in some capacity in the Cheyenne, Wyoming area. Exhibit P. 369-70. The ALJ found that the vocational consultant identified several jobs the claimant could perform which were readily available in her labor market. Montoya Depo. at 12. Based on this testimony of the respondents' vocational expert the ALJ concluded that the claimant was capable of earning wages in some capacity in the Cheyenne labor market. In our view the ALJ's determination that the respondents had demonstrated by a preponderance of the evidence that the claimant was no longer entitled to receive PTD benefits is supported by substantial evidence in the record.
III.
The claimant next contends that the ALJ erred in limiting her medical maintenance benefits because she had proven by a preponderance of the evidence that she should continue to receive physical therapy, massage therapy and attend a health club in Loveland, Colorado when residing in Cheyenne, Wyoming. We disagree.
Here the respondents had admitted liability for medical benefits. However, the respondents are only responsible for medical treatment which is reasonably necessary to cure or relieve the effects of the industrial injury and the claimant bears the burden to prove the causal connection between a particular treatment and the industrial injury. Section 8-42-101(1)(a), C.R.S.; Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo. App. 1997); see also Hanna v. Print Expediters, Inc., 77 P.3d 863 (Colo. App. 2003) (concerning Grover medical benefits). Accordingly, where the respondents contest liability for a particular medical benefit, the claimant must prove that it is reasonably necessary to treat the industrial injury. See Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).
Under § 8-42-101(1)(a), C.R.S., the respondents are liable for medical treatment which is reasonable and necessary to cure or relieve the effects of the industrial injury. Snyder v. Industrial Claim Appeals Office, supra. The question of whether a proposed treatment is reasonable and necessary is generally one of fact for determination by the ALJ. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo. App. 2002); Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo. App. 1999). We must uphold the ALJ's factual determinations if supported by substantial evidence in the record. Section 8-43-301(8). Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, supra.
Here, the claimant testified at the hearing that she visited her massage therapist and physical therapist in Loveland, Colorado on a weekly basis. The claimant also has a health club membership in the Loveland area. The claimant's mileage reimbursement records reflect that she has traveled from her residence in Cheyenne to Loveland several times each week and the mileage totaled over 4,000 miles each month. The claimant explained that she seeks to continue physical therapy and massage therapy in the Loveland area because her providers are familiar with her special condition and she trusts them. Dr. Reichhardt expressed the opinion that the claimant should be limited to no more than eight physical therapy visits per year and eight massage therapy visits per year. Reichhardt Depo. at 31. Dr. Reichhardt also explained that the claimant's massage and physical therapy sessions should be conducted in the Cheyenne area. Reichhardt Depo. at 31-32. Dr. Reichhardt also opined that the claimant's health club membership in Loveland would more properly be considered under "general wellness and fitness" rather than work-related. Reichhardt Depo. at 33-34.
The ALJ credited Dr. Reichhardt's recommendation and limited the claimant's medical maintenance benefits entitlement to eight physical therapy sessions and eight massage therapy sessions in Cheyenne, Wyoming, and ended the claimant's entitlement to a health club membership. In our opinion, the report of Dr. Reichhardt and his testimony constitute substantial evidence in support the ALJ's determination to limit the claimant's medical maintenance benefits. Exhibit K at 106.
IT IS THEREFORE ORDERED that the ALJ's corrected order dated October 30, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
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GALLAGHER BASSETT SERVICES, INC., Attn: JACKIE ZEARING, ENGLEWOOD, CO, (Insurer).
THE CARLSON FIRM, Attn: ALAN D. CARLSON, ESQ., FT COLLINS, CO, (For Claimant).
DWORKIN, CHAMBERS, WILLIAMS, YORK, BENSON EVANS, PC, Attn: GREGORY K. CHAMBERS, ESQ., DENVER, CO, (For Respondents).