In Romero, the claimant sustained an admitted injury to his right shoulder in 2020 while working as a correctional officer. The claim was closed by Final Admission of Liability in September 2021. The claimant filed a petition to reopen for worsening of condition which went to hearing in March 2022. The ALJ denied the claimant’s petition to reopen.
The ALJ concluded that there was insufficient objective evidence to substantiate that the claimant experienced a worsening of condition due to popping in his right shoulder. The ALJ was persuaded by the medical records of the claimant’s surgeon and ATP that the claimant already had popping in the right shoulder at the time he was discharged from care in 2021. The ALJ found the claimant did not sustain a worsening of condition and therefore, denied the claimant’s request to reopen.
On April 7, 2022, the claimant was working when he reached behind his back to turn down his radio. The claimant alleged an immediate onset of pain and said he heard a pop in his right shoulder. The claimant told the ER that this had happened several times but seemed more intense this time. An MRI was done and showed no evidence of acute trauma. The claim was denied. This matter proceeded to hearing, and the ALJ noted that the claimant’s symptoms at a prior IME on February 2, 2022, were documented to include mild atrophy of the supraspinatus, severe disabling “pops” followed by pain for days, with pain extending to his right side of his neck and into the shoulder blades. The claimant was provided work restrictions of no use of his right upper limb and the recommendation for additional evaluation and treatment by an orthopedic surgeon, to include probable surgery. The ALJ concluded that the claimant did not sustain a new injury, an aggravation of his prior injury, and that the claimant may have experienced a temporary flare-up of his symptoms due to the “pop.”
The claimant then appealed both of these orders to the Industrial Claim Appeals Office (the Panel). The claimant contended that the ALJ abused his discretion in failing to reopen based on a worsening of condition. Alternatively, the clamant argued that the ALJ erred in not finding a new compensable injury occurred on April 7, 2022. The Panel found no reversible error in either of the ALJs’ orders.
Section 8-43-303(1), C.R.S., permits a claim to be reopened based on a worsened condition. In order to reopen, the claimant bears the burden of proof to establish the worsening of a condition which is causally related to the original industrial injury. Osborne v. Industrial Commission, 725 P.2d 63 (Colo. App. 1986). The appellate standard on review of an alleged abuse of discretion is whether the ALJ’s order exceeds the bounds of reason, as where it is contrary to the applicable law or not supported by substantial evidence in the record. Coates, Reid & Waldron v. Vigil, 856 P.2d 850 (Colo. 1993);Rosenberg v. Board of Education of School District # 1, 710 P.2d 1095 (Colo. 1985). The ALJ is granted wide discretion in determining whether the claimant met his burden of proof, and the Appeals Panel must uphold that determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S.; Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082 (Colo. App. 2002); Richards v. Industrial Claim Appeals Office, 996 P.2d 756 (Colo. App. 2000).
The Panel found that there was ample evidence supporting the ALJ’s determination that there was not a worsening of the claimant’s injury. The ALJ detailed the medical evidence from the March 2022 hearing discussing the claimant’s popping right shoulder. The claimant testified that he had experienced painful popping since June of 2021 and after his MMI date. Thus, the ALJs made the reasonable inferences that there had been no change in the claimant’s condition since MMI to support a reopening or any changes since the March 2022 hearing to support a new injury occurred. The evidence does not compel the conclusion that the claimant sustained a worsening of condition or a an aggravation of a prior injury. In light of the evidence, the ALJ remained free to reach conclusions other than those urged by the claimant. The ALJs’ order were affirmed by the Panel.
Romeo v. State of Colo./Dept. of Corrections, W.C. Nos. 5-153-633 & 5-202-731. (I.C.A.O. Apr. 4, 2023).
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