Opinion
W.C. No. 4-808-961.
April 15, 2011.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) dated November 10, 2010 to the extent that the ALJ awarded temporary total disability benefits. We affirm.
This matter proceeded to hearing to determine whether the respondents overcame the opinion of the Division-sponsored independent medical examination (DIME) physician that the claimant's right shoulder problem was work-related and warranted medical care. The parties also litigated the claimant's entitlement to temporary total disability benefits. In addition, the claimant sought authorization for the claimant to see her personal physician, which the ALJ denied.
Several of the ALJ's findings are summarized as follows In 1995 the claimant developed problems with her right thumb, wrist, elbow, and shoulder due to her work. After surgery for her right thumb the claimant; developed problems with her right shoulder. The claimant subsequently changed to light duty work performing meat inspection and she was released from treatment for her right shoulder problems on September 15, 1996, The claimant's permanent work restrictions were rescinded.
The claimant began working as a box maker in December 2008. The claimant had to reach and unload pallets of boxing material and also lift turkeys weighing 20 to 30 pounds, on racks over her head, The job was repetitive and required the claimant to work quickly. On May 21, 2009 the claimant reported to Dr. Caton that she had right elbow and right shoulder pain while folding boxes at work, which resulted in a diagnosis of right shoulder impingement and tendinitis, lateral and medial epicondiylitits, and mild radial neuritis. Dr. Caton imposed work restrictions. Various tears in the shoulder area were noted as a result of a right shoulder MRI scan performed on August 8, 2009. Dr. Caton opined that folding boxes would not cause the MRI findings, but could aggravate the claimant's shoulder and make treatment necessary as a workers' compensation matter. On October 22, 2009 Dr. Caton diagnosed an aggravation of a right shoulder rotator cuff tear, imposed permanent restrictions, and placed the claimant at maximum medical improvement for her work-related aggravation. The respondents filed a final admission of liability and attached a report from Dr. Caton indicating that the claimant's rotator cuff injury was non-work related. Dr. Hughes and Dr. Primack evaluated the claimant's condition and came to different opinions regarding whether the claimant's right shoulder problems were work-related.
Dr. Bisssel conducted a DIME on April 27, 2010 and opined that the claimant suffered rotator cuff tears and developed right biceps tendonopathy as a result of her job activities. In addition, Dr. Bissell opined that the claimant's right AC joint degenerative changes were age-related and likely worsened with work activities. According to Dr. Bissell the claiment was not at maximum medical improvement He imposed work restrictions and suggested a surgical referral.
The claimant was released to return to work on January 4, 2010 after foot surgery, but the employer advised the claimant on January 11, 2010 that there was no work available that was within her restrictions.
The ALJ determined that the respondents failed to overcome the opinions of Dr. Bissell, the DIME physician. The ALJ therefore ordered the respondents to pay temporary total disability benefits and required medical benefits.
The respondents assert on appeal that the ALJ's determination that they had not overcome the DIME physician's opinions as to maximum medical improvement and the causation of the claimant's current right shoulder problems are not supported by substantial evidence or the law. The respondents similarly contest the ALJ's award of temporary total disability benefits.
An employer is responsible for the direct and natural consequences which flow from a compensable injury. Travelers Insurance Co. v. Savio, 706 P.2d 1258 (Colo. 1985). Section 8-42-107(8)(c), C.R.S. provides that the DIME physician's finding of medical impairment "shall be overcome only by clear and convincing evidence." The party challenging the DIME physician's impairment rating bears the burden of proof. Lambert and Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656 (Colo, App. 1998). Furthermore, the court of appeals has held that the DIME physician's opinion on the cause of a claimant's disability is an inherent part of the diagnostic assessment which comprises the DIME process of determining MMI and rating permanent impairment. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo. App. 1998); Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo. App. 1998). It follows that the party disputing the DIME physician's opinions on the issue of causation bears the burden to overcome the DIME physician's opinions by clear and convincing evidence. Clear and convincing evidence is unmistakable and free from serious or substantial doubt. DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318 (1980); Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979).
The question of whether a party has overcome the DIME by clear and convincing evidence is one of fact for the ALJ's determination. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). The standard of review is whether the ALJ's findings of fact are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S; Metro moving Storage Co. v. Gussert, supra. Substantial evidence is that quantum of probative evidence, which a rational fact-finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, supra. This standard of review is deferential and the scope of our review is "exceedingly narrow." Id. Moreover, we may not substitute our judgment by reweighing the evidence in an attempt to reach inferences different from those the ALJ drew from the evidence. See Sullivan v. Industrial Claim Appeals Office, 796 P.2d 31, 32-33 (Colo. App. 1990) (reviewing court is bound by resolution of conflicting evidence, regardless of the existence of evidence which may have supported a contrary result); Rockwell Int'l v. Turnbull, 802 P.2d 1182, 1183-(Colo. App. 1990) (ALJ, as fact-finder, is charged with resolving conflicts in expert testimony)
Consistent with their, position statement before the ALJ, the respondents refer to the medical-opinions of Drs. Caton, Primack, and Watson in support of their contention that they overcame Dr. Bissell's opinions concerning causation and maximum medical improvement. The respondents place particular emphasis on the claimant's MRI and the three doctor's opinions that the claimant's lesions or tears could not result from the claimant's work. According to the respondents, Dr. Bissell's opinions are not supported by medical records, literature, or resources. However, we are persuaded that the ALJ's decision that the respondents failed to overcome the opinions of the DIME physician is sufficiently supported by the record.
For example, the ALJ's findings of fact regarding the claimant's work and medical conditions include the following findings. The claimant developed right shoulder problems in 1995 due to her work-on the production line but was released from medical-treatment for her shoulder in September 1996. The claimant's right shoulder problems mostly resolved when the claimant changed job positions to quality control, which was light duty work that the claimant performed from 1997 to December 2008. In September 2005 the claimant advised a physician that she was not having problems with her right upper extremity and performed all her duties at work and at home. The claimant's permanent work restrictions were rescinded. The claimant began building and packing boxes in December 2008. This work was repetitive and required the claimant to unload unbanded stacks of unbuilt boxes from pallets stacked overhead. The claimant reached up to unbundle the box material. The claimant also loaded 20 to 30 pound turkeys on overhead racks by throwing turkeys overhead to the top rack.
In May 2009 the claimant reported the onset of right shoulder pain while folding boxes at work. Dr. Caton diagnosed various maladies concerning the claimant's right shoulder area and indicated that the claimant's problems were consistent with a work-related mechanism of injury. He imposed work restrictions including no lifting over five pounds with the right hand or reaching overhead, and no reaching across her body. The claimant's job site required her to lift up to five pounds frequently and occasionly lift and carry up to 30 pounds. In addition, the claimant was required to constantly reach ten to 14 inches to her front and sides between her waist and chest and occasionally reach overhead to get stacks of boxes weighing up to 30 pounds. In October 2009 Dr. Caton imposed permanent restrictions of no lifting, pushing, or pulling over five pounds or making repetitive motions and diagnosed an aggravated tear of the claimant's right shoulder rotator cuff
Dr. Hughes noted that after the claimant previously sustained a work-related right shoulder injury the claimant did well until her change to making boxes. According to Dr. Hughes the claimant's exertions at work could cause her rotator cuff tear. Dr. Bissell, the DIME physician, opined that the claimant's rotator cuff tears and right biceps tendonopathy resulted from her job activities and that the claimant was not at maximum medical improvement. Dr. Watson indicated that current medical literature was unclear as to causation of the claimant's shoulder area injuries from the claimant's type of work.
The ALJ also found that Dr. Caton indicated in a medical report that the claimant's rotator cuff tear is not related to the claimant's work and that Dr. Primack opined that the claimant's underlying pathology of her shoulder may have been aggravated by work, but that any aggravation was complete. Dr. Primack further opined that the claimant needed shoulder surgery, but not because of her job.
However, the ALTs findings reflect that whatever shoulder problems the claimant suffered prior to this claim effectively resolved until the claimant's job duties required her to unload materials and build boxes, at which point the claimant began experiencing pain in her right shoulder. Dr. Caton provided work restrictions that limited reaching and lifting, hut the claimant's job required her to reach and to lift weights sometimes up to 30 pounds. Both Dr. Hughes and the DIME physician, Dr. Bissell, opined that the claimant's right shoulder problems were related to her job activities. Dr. Bissell noted in his report the claimant's initial improvement after changing duties and her subsequent problems after she began building boxes as outlined in Dr. Caton's records. In addition, Dr. Bissell noted that the claimant's pre-existing arthropathy was asymptomatic at the time of her most recent injury, which in his opinion resulted in the claimant's rotator cuff and labral tears and bicipital tendinopathy. Exhibit 15.
We conclude that the reports of Dr. Hughes and the DIME physician and Pace Therapy's job site evaluation, together with the cliamant's testimony, constitute substantial evidence supporting the ALJ's conclusion that the respondents had failed to produce clear and convincing evidence to overcome the opinion of the DIME physician. We are therefore bound by such determination. Section 8-43-301(8), C.R.S.
The respondents further assert that the ALJ's findings to not support an award of temporary total disability benefits and is contrary to law because certain physicians opined that the claimant's shoulder condition is not related to her work. However, we are persuaded that there is record support for the ALJ's findings and determinations to the contrary as discussed above. As recognized by the respondents, pursuant to §§ 8-42-103 and 8-42-105, C.R.S., a claimant is entitled to an award of TTD benefits if: (1) the injury or occupational disease causes disability; (2) the injured employee leaves work as a result of the injury; and (3) the temporary disability is total and lasts more than three regular working days. Lymburn v. Symbios Logic 952 P.2d 831 (Colo App. 1997). Such benefits continue until terminated in accordance with § 8-42-105(3), C.R.S. Having upheld the, DIME physician's determination regarding the cause of the claimant's shoulder pathology and his corresponding determination that the claimant is not at maximum medical improvement, the ALJ's award of temporary total disability benefits is warranted.
IT IS THEREFORE ORDERED that the ALJ's order dated November 10, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Curt Kriksciun
RUTILIA RAMIREZ, P O BOX 173, DACONO, CO, (Claimant).
BUTTERBALL, LLC, LONGMONT, CO, (Employer).
ACE AMERICAN INSURANCE COMPANY, Attn: MR CHAD TURNER; C/O: SEDGWICK CMS, LEXINGTON, KY, (Insurer).
THE FRICKE LAW FIRM, Attn: JANET PRICKEY, ESQ., DENVER, CO, (For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: BRAD J. MILLER, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).