Opinion
W.C. No. 4-654-877.
October 6, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Krumreich (ALJ) dated May 7, 2010, that denied and dismissed the claimant's Petition to Reopen. We affirm.
The claimant sustained an admitted injury to his right shoulder on November 2, 2004. The claimant underwent a Division-sponsored independent medical examination (DIME). The insurer filed a Final Admission of Liability on November 29, 2007 admitting for two percent impairment of the right upper extremity pursuant to the opinion of a DIME physician. The claimant filed a Petition to Reopen in 2009 on the basis of a change in medical condition. The ALJ determined that the claimant had failed to prove by a preponderance of the evidence that he had sustained a change or worsening of his right shoulder injury that flows naturally from and is causally related to the injury of November 2, 2004.
The claimant appeals that decision contending that the ALJ failed to properly evaluate the medical evidence and that the inferences he drew from that medical evidence were not plausible. We are not persuaded to interfere with the ALJ decision to dismiss the Petition to Reopen.
We initially note that § 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. Martin v. Finzer Business Systems W. C. No. 4-144-464 (December 8, 2000). 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).
I.
The claimant first argues that the ALJ's decision to reject the opinions of the claimant's treating physician, Dr. Castrejon, and the claimant's surgical provider, Dr. Weinstein, in favor of the opinion of the respondents' independent medical examiner, Dr. McElhinney is questionable.
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). The appellate standard on review of an alleged abuse of discretion as noted above is whether the ALJ's order exceeds the bounds of reason, as where it is contrary to the applicable law or unsupported by the evidence. Rosenberg v. Board of Education of School District #1, supra. Here, we are not persuaded that the ALJ abused his discretion in crediting the opinions of Dr. McElhinney.
The ALJ made the following findings of fact regarding the opinions of Dr. McElhinney. Dr. McElhinney opined that the significant right rotator cuff tear and labral tears shown on an October, 2009 MRI were not causally related to the November, 2004 injury. Dr. McElhinney noted that these tears were not present on a February, 2006 MRI and therefore were new conditions and not related to the November, 2004 injury. Dr. McElhinney explained that the tendonitis in the claimant's right shoulder revealed in the 2006 MRI does not go on to cause a rotator cuff tear. Further Dr. McElhinney noted that if the November, 2004 injury had caused a labral tear, there certainly would have been evidence of such a tear and pathology in the labrum in the February, 2006 MRI scan. Dr. McElhinney further explained that rotator cuff tears do not progress naturally from inflammation of the rotator cuff and if the claimant was going to develop a rotator cuff tear or a labral tear from the 2004 injury, it would have been present and diagnosable in the 2006 MRI scan taken a year and one-half after the injury.
The claimant does not dispute that Dr. McElhinney expressed such opinions. Rather the claimant argues that in relying on the radiologist's MRI reports of 2006 and 2009 Dr. McElhinney admitted that he was "not exactly sure" what the 2006 MRI report meant. We note that Dr. McElhinney, in testifying that the 2004 accident did not cause a labral tear, explained that there was no labral tear at the time the 2006 MRI was taken. McElhinney Depo. at 16-17. Dr. McElhinney noted that the report said tendinopathy without significant tear and he was not sure what that meant. McElhinney Depo. at 17. However, Dr. McElhinney explained that tendinopathy was a change in the appearance of the MRI indicating that there's a higher water content, but that is different than a tear, which would be a separate and distinct finding on the MRI scan. McElhinney Depo. at 17-18. We are not persuaded that this evidence compels the conclusion that the ALJ erred in relying on the opinion of Dr. McElhinney.
The claimant contends that the records provided to Dr. McElhinney by the insurer were a "bunch of garbage" so that he did not review them. McElhinney Depo. at 33. An examination of the testimony of Dr. McElhinney in context reveals the doctor explained that he had received a number of documents from the insurer, but he saw the claimant only for the right shoulder and so was not interested in things that had to do with the claimant's back and so did not read through that material because it was a bunch of garbage. McElhinney Depo. at 31-33. We are not persuaded that Dr. McElhinney's decision to ignore irrelevant material compels the conclusion that the ALJ erred in relying on the doctor's opinion.
The claimant next contends that Dr. McElhinney testified that he reached his conclusion without regard to the mechanism of the claimant's injury or the progression of the claimant's injury. Dr. McElhinney did testify that in this particular situation he did not consider the original mechanism of the shoulder injury as important in reaching his opinions on causation. McElhinney Depo. at 43. Dr. McElhinney noted that in a case where years after the accident there was a normal MRI the type of trauma was not important. Instead, Dr. Elhinney based his opinion on a comparison of the MRI in 2006 that didn't show anything significant and the one in 2009 which did. Dr. McElhinney opined that this showed that it was not likely that the current problems were related to the 2004 injury. McElhinney Depo. at 43-45. We again are not persuaded that there is anything about this line of testimony that compels the conclusion that it must be ignored. Nor are we persuaded by the claimant's other contentions regarding the opinions of Dr. McElhinney, but conclude that they present us with no grounds upon which the order of the ALJ may be set aside.
In addition we note that the ALJ found that Dr. Castrejon's and Dr. Weinstein's causation theories and opinions did not explain the claimant's labral tear, which is a separate distinct condition and pathology and in a different location anatomically in the shoulder.
II.
The claimant contends that the ALJ rejected Dr. Weinstein's opinion because the doctor's opinion was based significantly on the history obtained from the claimant that in November, 2009 that his right shoulder had been gradually and progressively worsening since the 2004 injury. The claimant contends that this is without record support and constitutes error.
The ALJ made the following findings of fact regarding Dr. Weinstein's opinions. Dr. Weinstein evaluated the claimant in 2006 and found no atrophy or deformity in his right shoulder on physical examination. Commenting on the MRI scan Dr. Weinstein stated that there was no indication of a tear or any internal derangement. Dr. Weinstein evaluated the claimant on November 18, 2009 and obtained a history from the claimant that his right shoulder symptoms had gradually progressed and worsened since the injury in 2004. Dr. Weinstein reviewed an MRI scan of the right shoulder done on October 6, 2009 that showed partial thickness tears at the insertion of the supraspinatus tendon, an anterior superior labral tear and a tear in the biceps tendon. Dr. Weinstein, relying on the claimant's history, believed that the claimant's original injury just progressed, became symptomatic, and reached the current level over time. The ALJ found that the history given to Dr. Weinstein was directly refuted by the results of examinations done by Dr. Hall in 2005 and Dr. Lesnak in 2007 that found an essentially normal right shoulder condition.
The claimant argues that contrary to the ALJ's finding, Dr. Hall's March 8, 2005 report indicates that he specifically diagnosed the claimant with mild impingement of the right shoulder. We note from Dr. Hall's report that although he found positive impingement findings in the left shoulder there was no evidence of impingement in the right shoulder, but some acromioclavicular joint tenderness with full range of motion of the right shoulder. Exhibit K at 158. We further note that Dr. Hall did express the opinion that the claimant had mild impingement of the right shoulder. Exhibit K at 159. There appears to be some tension between Dr. Hall's statement that there was no evidence of impingement in the right shoulder, but nevertheless his impression was that the claimant had mild impingement of the right shoulder. However, to the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
Despite the claimant's contentions, in our opinion the record supports the ALJ's findings regarding Dr. Lesnak's June 6, 2007 report. We note the following from Dr. Lesnak's June 6, 2007 report. The claimant had no specific shoulder symptoms and had no clinical signs of shoulder impingement or symptomatic rotator cuff pathology and the MRIs of his shoulder showed no evidence of rotator cuff tears whatsoever. Exhibit H at 134.
In summary, the ALJ's conclusions that the examinations done by Dr. Hall in 2005 and Dr. Lesnak in 2007, essentially found that the claimant had a normal right shoulder condition, are supported by the record. This is particularly true considering the stark contrast between the claimant's condition from that described by Dr. Lesnak and Dr. Hall in 2009 when the MRI scan of the right shoulder showed partial thickness tears at the insertion of the supraspinatus tendon, an anterior superior labral tear and a tear in the biceps tendon. Because the ALJ's factual determination of the claimant's condition in 2005 and 2007 is supported by substantial evidence in the record it is binding on us. Section 8-43-301(8).
III.
The claimant next contends that the ALJ erred in denying the claimant's request to reopen based on his determination that the worsening of the claimant's right shoulder condition was a consequence of his left shoulder condition. We again are not persuaded to interfere with the ALJ's order.
The ALJ made the following relevant findings of fact relevant to this issue. The ALJ found that the opinion of Dr. Castrejon was not persuasive because he admitted that the claimant's right shoulder condition worsened as the result of the claimant's overuse of his right arm on account of his left shoulder condition. The ALJ found that this was consistent with the claimant's testimony that he used his right arm and shoulder exclusively since 2007 due to his severe left shoulder symptoms and that he believed his right arm became and is symptomatic because he overcompensated for his left arm by overusing his right arm for his activities of daily living. The claimant had not alleged nor was there any persuasive evidence in the record to conclude that his left shoulder condition was causally related to the injury of November 2, 2004. The ALJ concluded that any worsening of the claimant's right shoulder condition as a consequence of his left shoulder condition would not be causally related to the November 2, 2004 accident which he sought to reopen.
It does not appear that the claimant denies the issue of overuse of his right arm on account of his left shoulder condition. In any event, the report and testimony of Dr. Castrejon and the claimant's own testimony supports the ALJ's determination. Exhibit I at 142; Castrejon Depo. at 31-21; Tr. at 41-42. In our view there is substantial evidence supporting the ALJ's determination and because the issue is factual we are bound by such determination. Section 8-43-301 (8), C.R.S.
The claimant argues that he did not allege that his left shoulder condition was causally related to the November 2, 2004 injury. In a similar manner the claimant argues that Dr. McElhinney testified that he did not know why the claimant presented as he now does with right shoulder pathology.
However, it was not the responsibility of the respondents to prove through Dr. McElhinney's testimony or other evidence what the cause of the right shoulder pathology was. Rather that was the duty of the claimant. Proof of causation is a threshold issue, which the claimant must establish by a preponderance of the evidence. Section 8-43-201, C.R.S.; Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000). The question of whether the claimant has proven a causal relationship between the employment and the alleged injury or disease is one of fact for determination by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). 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.
Additionally, we recognize the fact that the claimant at this hearing did not allege that his left shoulder condition was causally related to the November 2, 2004 injury. However, this does not prevent the respondents from presenting evidence on this issue as a defense against the claim. Neither does the claimant's failure to allege his left shoulder condition was causally related to his right shoulder condition prevent the ALJ from crediting that evidence. In our view the ALJ was free to find, in denying the petition to reopen, that any worsening of the claimant's right shoulder condition as a consequence of his left shoulder condition was not causally related to the November 2, 2004 accident.
The claimant next contends that the ALJ erred in admitting into evidence, over his objection, a copy of a September 2, 2009 Order of ALJ Walsh. In the hearing before ALJ Walsh the claimant had argued that his left shoulder condition and need for surgery was caused when his rotator cuff was torn during a DIME examination. ALJ Walsh found that the DIME physician had not injured the claimant's left shoulder as alleged by the claimant.
At the hearing, when the order of ALJ Walsh was offered, the claimant objected on the grounds of relevancy. Tr. at 49. The claimant argued that ALJ Walsh's order was not relevant because the case before ALJ Krumreich dealt with the right shoulder and the hearing before ALJ Walsh dealt with other body parts including the claimant's left shoulder. Tr. at 49-50. We are not persuaded that the ALJ committed reversible error in admitting into evidence the order of ALJ Walsh
Section 8-43-210, C.R.S., contains the basic evidentiary provisions applicable to workers' compensation claims in Colorado. It states in pertinent part that the Colorado rules of evidence and requirements of proof for civil nonjury cases in the district courts shall apply in all hearings. State, Dept. of Labor and Employment v. Esser 30 P.3d 189 (Colo. 2001). Under section 8-43-207(1), C.R.S., "the ALJ is vested with wide discretion in the conduct of evidentiary proceedings." Ortega v. Industrial Claim Appeals Office, 207 P.3d 895, 897 (Colo. App. 2009); see also Eller v. Industrial Claim Appeals Office, 224 P.3d 397, (Colo. App. 2009) (applying an abuse of discretion standard to evidentiary rulings); Heinicke v. Indus. Claim Appeals Office, 197 P.3d 220, 222 (Colo. App. 2008) ("An abuse of discretion occurs when the ALJ's order is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law.").
Evidence is relevant if it has any tendency to make the existence of a consequential fact more or less probable. CRE 401. The ALJ has discretion to determine the relevancy of evidence. See §§ 8-43-207(1)(c) (ALJs are empowered to make evidentiary rulings); One Hour Cleaners v. Indus. Claim Appeals Office, 914 P.2d 501, 506 (Colo. App. 1995).
We note that ALJ Walsh's order determined that the claimant's left shoulder condition was not causally related to the claimant's injuries covered by "these claims." Exhibit O at 190. "These claims" included the claimant's November 2, 2004 claim, which is the one under analysis here. Exhibit O at 182. Here, the respondents argued at the inception of the hearing that the cause of the claimant's left shoulder condition was important because the claimant had alleged that his right shoulder hurt more because he was overusing it as a result of injuries to his left shoulder. Tr. at 10. In our view the fact that the claimant had alleged the cause of his left shoulder condition resulted from injury endured during a DIME examination is relevant. The cause of the left shoulder condition is connected to the present case because of the possible aggravation of the claimant's right shoulder condition resulting from overuse of the left shoulder and the possible cause of worsening of the claimant's right shoulder condition. The cause of the claimant's present right shoulder condition is inextricably connected to whether the present case should be reopened. Under these circumstances we are not persuaded that the ALJ abused his discretion in allowing ALJ Walsh's order into evidence.
The claimant argues that he has appealed ALJ Walsh's order and so the doctrines of issue preclusion or law of the case doctrines do not apply in the present case. However, we do not read ALJ Krumreich's order as applying either one of those doctrines. Rather, ALJ Krumreich relied upon the claimant's testimony in the hearing here and the testimony and reports of Dr. Dr. Castrejon in determining that any worsening of the claimant's right shoulder condition as a consequence of his left shoulder condition would not be causally related to the November 2, 2004 accident. Even if we assume that it was error to admit ALJ Walsh's order we find no support for the claimant's contention that ALJ Krumreich was influenced by ALJ Walsh's order in violation of the doctrine of law of the case or issue preclusion. See § 8-43-310, C.R.S. (harmless error standard for review of workers' compensation cases); CRE 103(a) (error may not be predicated on the exclusion of evidence unless a substantial right of the party is affected). See also Eller v. Industrial Claim Appeals Office, 224 P.3d 397, (Colo. App. 2009). We are not persuaded to interfere with the ALJ's decision to dismiss the Petition to Reopen filed by the claimant.
IT IS THEREFORE ORDERED that the ALJ's order dated May 7, 2010 is affirmed.
EVERETT YOUNG, 7505 HORSESHOE CIR, FOUNTAIN, CO, (Claimant)
BOBBY BROWN'S BAIL BONDS INC, MONUMENT, CO, (Employer).
HARVEY D FLEWELLING, Attn: PINNACOL ASSURANCE, LOWRY BLVD, DENVER, CO, (Insurer).
MICHAEL M. CLAWSON, ESQ, C/O: CLAWSON CLAWSON, LLC, COLO SPRINGS, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: CRAIG R. ANDERSON, LAKE PLAZA DRIVE SUITE D, COLO SPRINGS, CO, (For Respondents).