FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated June 25, 2008 that denied the claimant's request to reopen his claim. We affirm.
The claimant suffered an industrial injury to his lower back on November 10, 1999. The claimant underwent back surgeries and was placed at maximum medical improvement (MMI) on March 1, 2005, following a Division-sponsored Independent Medical Examination (DIME). The claimant was assigned a 21 percent whole person impairment rating and given permanent work restrictions. The claimant later filed a petition to reopen alleging a change in his medical condition. The respondents' medical expert opined that the claimant's condition had not worsened when compared to his condition at the time of the DIME in 2005. The ALJ found the opinion of respondents' medical expert to be credible and entitled to great weight. The ALJ concluded that the claimant's condition had not worsened when compared to his condition at the time of the DIME physician's opinion and denied the claimant's petition to reopen. The claimant appeals, contending that the ALJ erred in denying his petition to reopen his claim.
In order to reopen a claim pursuant to § 8-43-303(1), C.R.S. 2008 the claimant must prove a worsening of his condition that is causally related to the industrial injury. Moreover, the worsened condition must warrant further benefits. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002); Richards v. Industrial Claim Appeals Office, 996 P.2d 756 (Colo.App. 2000). 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. 2008. 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).
The claimant first contends that the ALJ erred in failing to find that the opinion of the respondents' medical expert supported a reopening, because that expert opined that the claimant's condition had worsened. We are not persuaded that an isolated portion of the medical record compels the conclusion that the claimant established a worsening of condition.
The respondents' expert evaluated the claimant on three occasions. The first examination was on March 23, 2005, the second on July 7, 2006 and the third on February 12, 2007. Exhibit B at 21. As argued by the claimant, the expert opined that the claimant's condition had worsened with increased pain and tightness in his low back between the July 7, 2006 evaluation and the February 12, 2007 evaluation. Exhibit B at 22.
However, the ALJ also found with record support that the respondents' expert clarified that it was not his opinion that the claimant had worsened from the time he was examined on August 2005 by the DIME physician. Tr. 72. The respondents' expert opined that there would be no worsening of condition if he compared his findings to the finding made by the DIME physician in 2005. Tr. at 72; Exhibit B at 27.
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). 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). Here the ALJ reviewed all the opinions expressed by the respondents' medical expert and determined that it was the expert's overall opinion that the claimant's condition had not worsened when compared to his condition at the time of the DIME conducted in 2005. In our view, this is a reasonable inference made by the ALJ and supports his conclusion that the claimant's condition had not worsened over the relevant period of time.
Moreover, we note that the ALJ relied only in part on the opinions of the respondents' expert in reaching his ultimate determination on whether a worsening had occurred. There was additional evidence considered by the ALJ. The ALJ noted that the day after he was examined by the DIME physician the claimant attended a pre-employment medical appointment with the Federal Bureau of Prisons where it was determined that he had no current problems related to his back surgery and could participate in self defense, ladder climbing and other vigorous activity. Exhibit Tr. at 32; Exhibit M at 99-102. The ALJ noted that the claimant was still employed with the Federal Bureau of Prisons and had been injured when he tackled an inmate during an apprehension in 2007. Tr. at 43-44; Exhibit M at 106. In our opinion, the ALJ's determination that the claimant failed to show that his condition had worsened is supported by substantial evidence in the record.
The claimant next notes that following his last examination the respondents' expert recommended further medical treatment. Therefore, the claimant argues that even if he failed to establish that his condition had worsened he is still entitled to the medical treatment recommended by the respondents' medical expert. We are not persuaded that the ALJ committed reversible error in failing to grant the claimant's request for medical benefits.
We agree with the claimant that the respondents' expert did make recommendations in February 2007 that the claimant receive treatment such as physical therapy, certain pain medications and an exercise program. Exhibit B at 23. In addition, the claimant stated at the hearing that the issues were a petition to reopen and medical benefits as recommended by the respondents' medical expert. Tr. at 4. We note that counsel for the respondents stated that the treatment recommended by their medical expert would only be maintenance medical care and so would not justify a reopening. Tr. at 5. We further note that the final admission of liability filed by the insurer based upon the DIME physician's report admitted for reasonable, necessary and related medical benefits after MMI. Exhibit Pat 182
However, in our opinion it is decisive that the claimant did not contend at the hearing nor has he argued here on appeal, that this proposed medical treatment constitutes a Grover-type medical benefit. See Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). The ALJ's order did not discuss whether the proposed medical treatment was available under Grover. The claimant did not argue in his position statement that he was entitled to the medical treatment recommended by the respondents' expert as Grover medicals. The reopening of the claim is a prerequisite to the award of additional medical benefits that are not available under Grover. Here we have affirmed the ALJ's denial of the claimant's petition to reopen. Therefore, in light of the manner that the case was postured before the ALJ, it is our view that the ALJ did not error in failing to award additional medical benefits.
IT IS THEREFORE ORDERED that the ALJ's order issued June 25, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________ Curt Kriksciun
__________________________ Thomas Schrant
CEDRIC BRADLEY, COLORADO SPRINGS, CO, (Claimant).
BAILEY'S MOVING AND STORAGE, Attn: JIM LOVE, COLORADO SPRINGS, CO, (Employer).
LEGION INSURANCE % COLORADO INS GUARANTY ASSN, Attn: KRISTY EICHINGER, C/O: WESTERN GUARANTY FUND, DENVER, CO, (Insurer).
HEUSER HEUSER, LLP, Attn: BARKLEY HEUSER, ESQ., COLORADO SPRINGS, CO, (For Claimant).
MCELROY DEUTSCH MULVANEY CARPENTER, LLP, Attn: KRISTIN A CARUSO, ESQ., DENVER, CO, (For Respondents).