Opinion
W.C. No. 4-309-217.
March 11, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Broniak (ALJ) dated December 22, 2010, that denied and dismissed the claimant's petition to reopen and claim for penalties. We affirm.
On August 28, 1996, the claimant suffered a back injury in an admitted industrial accident. The claimant's authorized treating physician (ATP) was Dr. Shaw. Dr. Shaw opined the claimant had reached maximum medical improvement (MMI) on February 26, 1999 with a 13 percent whole person impairment rating. Dr. Shaw recommended future medical maintenance treatment that included physician follow-up every six months for the following two years, Darvocet as needed, and a home exercise program. The respondent filed a Final Admission of Liability consistent with Dr. Shaw's report.
In 2003 the claimant moved to St. Louis, Missouri and continued to receive post-MMI maintenance medical treatment with Dr. Shaw in Denver approximately every six months. Dr. Shaw retired and Dr. Shaw's former partner, Dr. Roth, was designated by the respondent as the new ATP. In 2008 Dr. Roth opined that the claimant's current symptoms were not caused by a rear end collision and low back strain that occurred in 1996 and recommend against further medical treatment in St. Louis.
The claimant in 2008 filed an application for hearing which was held before ALJ Cannici. ALJ Cannici issued a decision on October 20, 2008 finding that the claimant had not established that he was entitled to receive additional maintenance medical treatment and the claimant's request for a change of physician was moot because no further treatment was authorized. ALJ Cannici denied penalties requested by the claimant for the respondent's alleged failure to provide medical care and treatment. We affirmed ALJ Cannici's decision. Our order was affirmed by the Court of Appeals. Ford v. Regional Transportation District W.C. No. 4-309-217 (February 12, 2009), aff'd, Ford v. Industrial Claim Appeals Office 09CA0445 (Colo. App. February 11, 2010) (not selected for publication).
The claimant filed a Petition to Reopen his claim. The matter was heard before ALJ Broniak on the issue of whether the claim should be reopened based upon a change in condition, mistake or fraud and whether penalties should be assessed against the respondent. ALJ Broniak issued her order on December 22, 2010, which is the one under consideration here.
The ALJ found that there no mistake of facts sufficient to reopen the claim and that credible evidence had failed to establish that the claimant's condition had worsened. The ALJ also found no credible evidence of fraud. Therefore, the ALJ denied and dismissed the claimant's petition to reopen. The ALJ also denied the request for penalties.
The claimant filed a Petition to Review supported by a detailed brief alleging a great number of errors committed by the ALJ. However, a number of these arguments appear to be a reiteration of arguments rejected by ALJ Cannici in his order of October 20, 2008. In that order ALJ Cannici denied the claimant's request for a change of physician, denied medical maintenance benefits and denied penalties for illegal termination of benefits. As noted above we affirmed ALJ Cannici's order and we were affirmed by the Colorado Court of Appeals. Therefore, we have not addressed those arguments already addressed in ALJ Cannici's order and affirmed on appeal. We have attempted to group the claimant's remaining arguments, the ones involving issues properly before ALJ Broniak, into the following four categories.
I. Petition to Reopen (Change in Condition)
The claimant argues that the ALJ erred in finding that there was no credible evidence to support the proposition that his condition had worsened since Dr. Shaw placed him at MMI. We are not persuaded that the ALJ committed reversible error.
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 devotes a considerable portion of his brief attacking the credibility of Dr. Roth. Dr. Roth had expressed the opinion that the claimant's current symptoms were not caused by the 1996 industrial injury. The claimant instead points to the opinion of Dr. Shaw that the matter should be reopened due to the claimant's worsening condition. However, 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). Here, the ALJ credited the opinion of Dr. Roth that the claimant's current conditions were not the result of the industrial injury in 1996. We perceive no grounds to interfere with that credibility determination.
The claimant argues that the ALJ erred in concluding that there was no credible evidence supporting the claimant's allegation that his condition had worsened because the ALJ did not specifically discuss certain medical reports. However, the ALJ is not required to cite or discuss every piece of evidence before crediting evidence to the contrary. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970). Rather, evidence not cited is implicitly rejected as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000).
We are persuaded that the ALJ entered sufficient findings to indicate the legal and factual bases of the order so that we may conduct meaningful appellate review. The ALJ's pertinent findings of fact include the following. Dr. Wakeshima concluded that the claimant's condition had not clinically worsened since the date of MMI. Dr. Wakeshima noted the following: "There were no new structural abnormalities appreciated on his MRI study performed in 8/21/09 when compared to his MRI that was performed before he was placed at MMI. His electrodiagnostic studies, which were performed in 2009, were also normal." Exhibit A at 18. Dr. Primack opined that the claimant did not require additional work-related medical treatment and the claimant was still at MMI. Exhibit B at 20, 24; Primack Depo. at 14-16. As noted above, Dr. Roth concluded that the claimant's current symptoms were not caused by the 1996 industrial injury. Exhibit D at 63.
The ALJ concluded that the credible evidence failed to establish that the claimant's condition has worsened or changed since Dr. Shaw placed him at MMI or since the claim closed. In our view this conclusion is supported by substantial evidence listed above and therefore we are bound by it.
II. Petition to Reopen (Mistake)
As we read the claimant's brief he contends the ALJ erred in failing to reopen his claim on the grounds of mistake. Under § 8-43-303(1)(a), C.R.S., an ALJ may reopen any award on the grounds of error or mistake of law or fact. State Compensation Insurance Fund v. Industrial Commission, 80 Colo. 130, 249 P. 653 (1926); Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo. App. 1996). Where the claimant alleges a mistake the ALJ is required to determine "whether a mistake was made, and if so, whether it was the type of mistake which justifies reopening a case." Travelers Insurance Co., Industrial Commission, 646 P.2d 399 (Colo. App. 1981). Again, because the ALJ's authority is discretionary we may not interfere with the ALJ's decision to deny a petition to reopen unless the ALJ's rule constitutes an abuse of discretion. Renz v. Larimer County School District Poudre R-1, supra; 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 unsupported by the evidence or is contrary to the applicable law. Coates Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1994).
On the issue of mistake the ALJ made the following findings. It is apparent from the evidence that three different physicians have reached three separate conclusions concerning the source of the claimant's ongoing symptoms and whether or not such symptoms were causally related to the 1996 industrial injury. ALJ Cannici, in his prior order, chose to rely upon the opinions of Dr. Primack and Dr. Roth. No persuasive evidence suggests that the opinions of Dr. Primack and Dr. Roth were based upon mistaken facts. Rather, both Drs. Primack and Roth reached opinions concerning causation that merely differ from Dr. Shaw's opinion. The ALJ here did not view these varying opinions as evidence of a mistake of fact sufficient to reopen the claimant's workers' compensation claim.
The claimant argues that the ALJ noted that Dr. Primack modified his opinion to now acknowledge the claimant's injury, but did not consider Dr. Shaw's opinion when he made it clear that Dr. Primack erroneously referenced a procedure where the claimant received an injection at the left SI joint. The claimant further argues that the ALJ noted Dr. Primack opined that this is "an extremely complex case" and confirmed that the patient did have a confirmatory aggravation of a congenital anomaly at L5-S1." The claimant asserts that this fact contradicts Dr. Roth's assertion of a simple "back strain."
It appears that the claimant may be contending that the ALJ here mistakenly interpreted the evidence rather than contending that a mistake had been made in the previous order by ALJ Cannici, which closed the case. To the extent that this is the claimant's argument we reject it. A claim may be reopened based on mistake whenever subsequent evidence casts doubt upon the validity of a factual determination which formed the basis of an award or denial of benefits. Renz v. Larimer County School District Poudre R-1, supra; Standard Metals Corp. v. Gallegos, 781 P.2d 142 (Colo. App. 1989); Davis v. Rocky Mountain Materials Asphalt, Inc., W.C. No. 4-647-601 (December 30, 2009); Fisher v. Wal-Mart Stores, Inc., W. C. No. 4-247-158 (August 20, 1998).
To the extent that the claimant's argument is that Dr. Primack changed his mind after ALJ Cannici entered his order dated October 20, 2008 that denied certain benefits and that this is a "mistake" which compels a reopening, we disagree. Here, the ALJ noted that Dr. Primack seemed to modify his opinion to say that the claimant's sacroiliac joint was the source of the claimant's pain. However Dr. Primack still concluded that the claimant's ongoing symptoms were not related to his 1996 industrial injury and that the claimant did not require further treatment as a result of the injury. The central issue is the causal connection between any claimed symptoms and the industrial injury and Dr. Primack did not change his opinion on that. Therefore, we do not view Dr. Primack's change of opinion as compelling a reopening.
To the extent that the claimant contends that the difference in characterization by Dr. Primack that this is "an extremely complex case" and Dr. Roth's assertion that the claimant suffered a simple "back strain" constitutes a mistake compelling reopening of the case, we disagree. It again appears that the claimant is merely arguing about the present ALJ's analysis of the evidence, which would not provide a basis for reopening the case closed by ALJ Cannici. Moreover, we do not agree that it must be concluded that there is a substantive difference in the opinions of Dr. Roth and Dr. Primack on this issue. Dr. Primack concluded that the claimant had low back pain, which is consistent with Dr. Roth's contention that the claimant had back strain. Again, the ALJ found that on the central issue of causation Dr. Primack and Dr. Roth reached similar opinions concerning causation and that these merely differed from Dr. Shaw's opinion. The ALJ did not view these varying opinions as evidence of a mistake of fact sufficient to reopen the claimant's workers' compensation claim. In our view this is well within the ALJ's discretion in deciding whether to reopen the claim.
Further, Dr. Primack's comment on complexity appears to be connected with his conclusion that the claimant had a high level of perceived functional limitation and severe pain despite his actual high level of functioning and that the claimant had gravitated toward assuming a disabled role. Exhibit B at 20-24. In any event, we are not persuaded that even if this difference of opinion constituted a mistake that it would be the type of mistake that would compel reopening of the case.
In our opinion the ALJ did not abuse her wide discretion in determining not to reopen the claim based upon mistake. Travelers Insurance Co. v. Industrial Commission, 646 P.2d 399 (Colo. App. 1981) (the ALJ has wide discretion to determine whether a mistake has occurred, and if so, whether it is the type of mistake which justifies reopening). Therefore, we find no ground for interfering with the ALJ's order on this ground.
III. Petition to Reopen (Fraud)
The claimant contends that the ALJ erred in concluding that there was no credible evidence of fraud on the part of the respondent. The claimant appears to argue that the respondent committed fraud relating to Dr. Shaw's retirement and making arrangements for a physician in St. Louis. The claimant argues that Ms. Hanford, the Risk Management Specialist for the respondent, knew that Dr. Shaw had resigned, but waited three months to respond. This was raised in the claimant's position statement and was before the ALJ. Claimant's Position Statement at 14, 18. The claimant also argues that he learned the respondent violated provisions pertaining to the medical fees after having secured an order of discovery.
Fraud may justify reopening an otherwise final award of benefits. See Lewis v. Scientific Supply Co., Inc., 897 P.2d 905 (Colo. App. 1995). Where the evidence is subject to more than one interpretation, the existence of fraud is a factual issue for resolution by the ALJ. See Vargo v. Industrial Commission, 626 P.2d 1164 (Colo. App. 1981). Because the issue is factual in nature, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S.; Arczynski v. Club Mediterranee of Colorado, Inc., W. C. No. 4-156-147 (December 15, 2005).
On the issue of fraud the ALJ made the following findings of fact. There was no credible evidence of fraud on the part of the respondent. The fact that the respondent, at one time, intended to approve an ATP in the St. Louis area, but then decided otherwise does not constitute a false representation of a material fact. Further, Ms. Hanford's comment that Dr. Shaw retired without making a referral does not constitute a false representation of a material fact. Dr. Shaw did not offer a referral and instead suggested that the claimant's care be "transferred to a new physician." Respondent selected Dr. Roth as the new physician.
In the claimant's Position Statement the claimant discussed the fees of Dr. Primack and Dr. Roth suggesting that such fees tainted their opinions. Claimant's Position Statement at 25, 42. The ALJ found that there is no credible evidence of fraud committed by Dr. Primack or Dr. Roth merely because they charged the respondent in excess of the fee schedule when performing their examinations and record reviews. In our view, the claimant's argument appears directed towards convincing the ALJ to credit the testimony of Dr. Shaw and rejecting opinions of Dr. Primack or Dr. Roth, instead of establishing a ground for reopening the case after closure by ALJ Cannici.
In any event, the ALJ's findings of fact are supported by substantial evidence and reasonable inferences drawn from the record. Therefore, they are binding upon us. Section 8-43-301(8). Again, in our opinion, the ALJ did not abuse her wide discretion in determining not to reopen the claim based upon mistake. Travelers Insurance Co. v. Industrial Commission, supra. Therefore, we find no ground for interfering with the ALJ's order on this ground.
IV. Penalties
In his application for hearing the claimant alleged that the respondent had failed to comply with W.C. Rule of Procedure 16-10(F), 7 Code Colo. Reg. 1101-3 by unreasonably delaying or denying prior authorization for medical treatment beginning in March 2007 when the respondent did not refer the claimant to a physician in Missouri. The claimant also argued that the respondent had failed to timely appoint a new ATP once Dr. Shaw announced his retirement in October 2007 and that such failure should result in the imposition of penalties. The claimant also alleged that the respondent forwarded non-medical records and reports to "the IME." The claimant also alleged that the respondent "falsely represented facts in this matter."
Penalties may be imposed against an employer who "(1) violates any provision of the Act; (2) does any act prohibited by the Act; (3) fails or refuses to perform any duty lawfully mandated within the time prescribed by the director or the Panel; or (4) fails, neglects, or refuses to obey any lawful order of the director or the Panel." Pena v. Industrial Claim Appeals Office, 117 P.3d 84, 87 (Colo. App. 2004); see also § 8-43-304(1), C.R.S. The failure to comply with a procedural rule is a failure to obey an "order" within the meaning of § 8-43-304(1). Pioneers Hosp. v. Industrial Claim Appeals Office, 114 P.3d 97, 98 (Colo. App. 2005).
On the issue of penalties the ALJ found as follows. The respondent asserted that the claimant's claim for penalties was barred by § 8-43-304(5), C.R.S. All of the evidence that the claimant presented in support of his claim for penalties that related to delay or refusal to provide medical treatment or failing to timely appoint a new ATP was either known or should have been known to the claimant by February 2008. The claimant endorsed this penalty issue in his Application for Hearing filed in February 2010, which was approximately two years from the time he knew or should have known of facts giving rise to a possible penalty. The claimant failed to timely raise the claim for penalties. In addition, the ALJ found that the claimant presented no credible or persuasive evidence in support of his assertion that the respondent should be penalized for providing non-medical records and reports to the "the IME" or for "falsely representing facts in this matter."
In his brief the claimant contends in detail that the respondent failed to provide medical care and treatment. It appears that the claimant primarily asks that penalties be imposed because the respondent failed to identify a new ATP when Dr. Shaw notified the respondent in 2007 that he resigned as the ATP.
However, the respondent raised the defense of the timeliness of the claimant's request for penalties under § 8-43-304(5). Section 8-43-304(5) provides that a request for penalties shall be filed with the director or administrative law judge within one year after the date that the requesting party first knew or reasonably should have known the facts giving rise to a possible penalty. Spracklin v. Industrial Claim Appeals Office, 66 P.3d 176 (Colo. App. 2002). The ALJ determined that the evidence relating to the delay or refusal to provide medical treatment or failing to timely appoint a new ATP was either known or should have been known to the claimant by February 2008. The ALJ determined that the request for penalties was filed in February 2010 approximately two years from the time the claimant knew or should have known of facts giving rise to a possible penalty. Therefore, the ALJ found that the claimant failed to timely raise the claim for penalties.
The claimant has not disputed the findings of fact made by the ALJ relating to the timeliness of his request for penalties under § 8-43-304(5). Further, the claimant has not in his brief addressed the defense raised by the respondent under § 8-43-304(5). Because we conclude that the ALJ applied the correct legal standard on the issue of the timeliness of the claim for penalties under § 8-43-304(5), and the findings are otherwise supported by substantial evidence, we affirm the denial of penalties. Finally, we have considered the claimant's other contentions, but conclude that they present us with no grounds upon which the order of the ALJ may be set aside.
IT IS THEREFORE ORDERED that the ALJ's order dated December 22, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_________________________________ John D. Baird
_________________________________ Thomas Scfrant
GILL L FORD, PRO SE, P O BOX 140100, ST LOUIS, MO, 63114 (Claimant).
REGIONAL TRANSPORTATION DISTRICT, Attn: BONNIE HANFORD, C/O: RTD SENIOR RISK MANAGEMENT SPECIALIST, 1600 BLAKE STREET, DENVER, CO, 80202 (Employer).
REGIONAL TRANSPORTATION DISTRICT, Attn: DERRICK K. BLACK, ESQ., C/O: ASSISTANT GENERAL COUNSEL, 1600 BLAKE STREET, DENVER, CO, 80202 (For Respondents).