Opinion
W.C. No. 3-959-793
November 21, 1995
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge Erickson (ALJ) which reopened the claim and awarded ongoing medical benefits pursuant to Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). We affirm.
As a result of her industrial injury, the claimant developed a lung condition characterized by chest pain and breathing irregularities. In October 1991, the claimant's treating physician, Dr. Rose, determined that the claimant had reached maximum medical improvement (MMI). However, Dr. Rose did not release the claimant from treatment. Rather, Dr. Rose continued to prescribe certain medications.
In May 1992, the parties agreed to a "Stipulated Order" under which the respondent agreed to pay maximum permanent partial disability benefits. In June 1994, the claimant filed an Application for Hearing requesting an award of Grover medical benefits. However, at the hearing, the ALJ concluded that the Stipulation closed the claim and treated the Application for Hearing as a petition to reopen based on worsened condition.
The ALJ credited the claimant's testimony that her breathing difficulties were worse in October 1992. (Tr. pp. 18-19). The ALJ also credited the testimony of Dr. Rose that the claimant's symptoms were elevated in October 1992, and that the claimant required a new medication. (Rose depo. pp. 6, 8-9). Based on these findings, the ALJ found that the claimant's condition worsened after closure of the claim, and thus, reopened the matter. The ALJ also determined that the claimant was entitled to ongoing medical benefits under the principle set forth in Grover v. Industrial Commission, supra.
On review, the respondent's only contention is that the record does not support the ALJ's finding that the claimant's condition worsened after she reached MMI in October 1991. In support of this proposition, the respondent points to portions of the claimant's testimony where she admitted that her symptoms never went away after reaching MMI, and that they "worsened" when she failed to take her medication. The respondent also points to portions of Dr. Rose's testimony in which the doctor stated that the claimant's condition had not "deteriorated significantly" by October 1992, and that the claimant's condition was "stable" at that time. We are not persuaded by the respondent's arguments.
We do not dispute that, if a claimant petitions to reopen to obtain additional medical benefits, she is required to show a worsening of her physical condition. Section 8-43-303(1), C.R.S. (1995 Cum. Supp.); Lucero v. Climax Molybdenum Co., 732 P.2d 642 (Colo. 1987). Further, the mere fact that a claimant needs additional medical benefits after MMI does not establish a worsening of condition if the need for those benefits could reasonably have been foreseen at the time the claim was closed. This is true because Grover v. Industrial Commission requires that a claim for ongoing medical benefits be presented at the time of the "final award." See Vega v. Excel Corp., W.C. No. 3-951-988, February 9, 1994; Anderson v. Ready Mix Concrete, W.C. No. 3-948-266, June 19, 1992, aff'd., Anderson v. Ready Mix Concrete, Colo. App. No. 92CA1060, March 25, 1993 (not selected for publication).
However, if the claimant presents evidence that her condition has worsened, and that the worsening requires additional medical treatment, the claim may be reopened for the purpose of awarding additional medical benefits. Brickell v. Business Machines, Inc., 817 P.2d 536 (Colo.App. 1991); Dorman v. B W Construction Co., 765 P.2d 1033 (Colo.App. 1988). In the absence of fraud or clear abuse of discretion, the ALJ's exercise of his discretion to reopen the claim is absolute. Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986).
In determining whether the ALJ abused his discretion, we may not interfere with his findings of fact if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). This standard requires that we defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). Further, to the extent the testimony of a particular witness contains internal inconsistencies, the ALJ may resolve those inconsistencies and determine what portion of the testimony to credit. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
Here, the record contains substantial evidence to support the ALJ's determination that the claimant's condition worsened after MMI, and that the worsening required medical treatment which was not reasonably foreseeable at the time the final award was entered. Specifically, the claimant's testimony supports the inference that over time her symptoms worsened, and were no longer sufficiently controlled by the medication which she had been taking. (Tr. p. 18). The claimant's testimony was corroborated by Dr. Rose who stated that the claimant's symptoms had increased in October 1992 that the claimant was in need of the new medication. (Rose depo. pp. 6, 8).
It is true that some portions of the evidence cited by the respondent would support contrary findings and conclusions. However, the ALJ has identified those portions of the testimony which he found credible and persuasive. That evidence supports the order, and we may not substitute our judgment for that of the ALJ on these factual issues. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
IT IS THEREFORE ORDERED that the ALJ's order, dated January 9, 1994, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. DeanNOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed November 21, 1995 to the following parties:
Michele Scriven, 3427 W. 97th Ave., #23, Westminster, CO 80030
Pierrette Ray, City of Westminster, 4800 W. 92nd Ave., Westminster, CO 80030
Kenna Hardenbrook, OHMS, 700 Broadway No., 1132, Denver, CO 80273
Gregory Chambers, Esq., 950 S. Cherry St., Ste. 1502, Denver, CO 80222
(For the Respondent)
Vincent M. Balkenbush, Esq., 3773 Cherry Creek North Drive, #280, Denver, CO 80209
(For the Claimant)
By: ________________________