Opinion
W.C. No. 4-503-150.
May 5, 2006.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Henk (ALJ), that found the respondents had overcome certain portions of the Division-sponsored independent medical examination (DIME) opinion by clear and convincing evidence. The claimant also challenges the ALJ's decision to disallow a change of physicians. We affirm.
The parties went to hearing on issues that included the respondents' challenge to a DIME opinion and the claimant's request to change physicians. Several of the ALJ's corresponding findings are summarized as follows.
The claimant injured her left lower extremity in 2000, for which she received treatment from many physicians. A little over a year after her initial injury, the claimant started undergoing several tests and procedures related to determining whether she suffered from Chronic (or Complex) Regional Pain Syndrome (CRPS), formerly known as Reflex Sympathetic Dystrophy (RSD). See W.C. Rule of Procedure XVII, Exhibit D, 7 Code Colo. Reg. 1101-3 at 1. The test results and procedures were reviewed by several physicians. In April 2004, Dr. Greenberg opined the claimant did not have RSD. In December 2004, Dr. Machanic, the DIME physician in this matter, opined the claimant had RSD/CRPS. The DIME physician determined that the claimant had an impairment rating of 17%. In May 2005, Dr. Gutterman opined it appeared that the claimant did not have RSD or CRPS. Dr. Lesnak opined the claimant does not have RSD/CRPS. In July 2005, Dr. Sisson opined the claimant had RSD. In September 2005, Dr. Ring opined the claimant did not have RSD/CRPS. In November 2005, Dr. Schakaraschwili opined the claimant did not have CRPS.
Claimant requested a change of physician from Dr. Wunder to Dr. Sisson. The claimant had gone over a week without medications due to her inability to reach Dr. Wunder, which concerned the ALJ. However, the ALJ found the claimant had numerous authorized treating physicians and could return to any one of them to maintain ongoing medical treatment.
The ALJ found the opinion of the DIME physician, that the claimant had RSD/CRPS, was overcome by clear and convincing evidence. The ALJ and some of the physician's made reference to the medical treatment guidelines. It was noted that the claimant did not experience positive results for the sympathetic blocks administered to her. The claimant also did not have positive results for the variety of diagnostic tests she underwent. The test results and clinical evaluations led several treating physicians to opine the claimant did not have RSD/CRPS. The DIME physician thought the claimant had two positive test results supporting a finding of RSD. However, the ALJ found one of the test results, concerning osteopenia, was unclear in its scope. She also found another physician's interpretation of the other test, a QSART, more persuasive. Finally, the ALJ found the claimant's treating physicians were in the best position to determine whether her symptoms were compatible with RSD/CRPS when it came to physical examination findings.
I.
The claimant asserts that the ALJ erred as a matter of law in determining that the respondents overcame the DIME's findings. In support of his assertion, the claimant cites the case of Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995), for the proposition that a DIME is only overcome by evidence which shows it is highly probable the DIME determination is incorrect. Metro Moving, 914 P.2d at 414. The claimant argues that establishing a DIME determination to be incorrect requires a showing that the DIME physician made a mistake, and an ALJ may not rely on mere differences of opinion between the DIME physician and other physicians. We cannot conclude as a matter of law that the ALJ erred in finding that the respondents overcame the DIME physician's determinations by clear and convincing evidence.
Section 8-42-107(8)(c), C.R.S. 2005, provides that the DIME physician's finding of medical impairment is binding unless overcome by clear and convincing evidence. "Clear and convincing" evidence has been defined as evidence which demonstrates that it is "highly probable" the DIME physician's rating is incorrect. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998) ; Metro Moving, supra. Moreover, regardless of whether the standard of proof is by a preponderance of the evidence or clear and convincing, only the trier of fact may determine the persuasive effect of the evidence and whether the burden of proof has been satisfied. Metro Moving, 914 P.2d at 414.
Thus, the determination of whether the DIME physician's opinion has been overcome is a question of fact for resolution by the ALJ. In addition, the standard of proof applied by the ALJ is not synonymous with the standard of review we are to apply. Id. We must apply the substantial evidence test in determining whether the ALJ's findings of fact are supported by the evidence. Id. Consequently, we must uphold the ALJ's determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2005; See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002); Qual-Med, Inc. v. Industrial Claim Appeals Office, supra. The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ's assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review is "exceedingly narrow." Metro Moving, 914 P.2d at 415.
The ALJ is granted wide discretion in determining whether the respondents met their burden of proof, and we must uphold that determination if supported by substantial evidence in the record. Section 8-43-301(8); 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). 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. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995).
Under this standard of review it is the ALJ's sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. We may not substitute our judgment for that of the ALJ unless the testimony the ALJ found persuasive is rebutted by such hard, certain evidence that it would be error as a matter of law to credit the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). Testimony which is merely biased, inconsistent, or conflicting is not necessarily incredible as a matter of law. People v. Ramirez, 30 P.3d 807 (Colo.App. 2001). The existence of evidence which, if credited, might permit a contrary result also affords no basis for relief on appeal. Cordova, supra. Furthermore, an "ALJ has great discretion in determining the facts and deciding ultimate medical issues." H H Warehouse v. Vicory, 805 P.2d 1167, 1170 (Colo.App. 1990), citing Talbert v. Industrial Commission, 694 P.2d 864 (Colo.App. 1984).
Moreover, the ALJ's order is sufficient for purposes of review if the legal and factual bases of the order are apparent from the findings of fact and conclusions of law. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Although the claimant asserts the ALJ failed to address certain evidence tending to support the DIME physician's determinations, as the ALJ noted, she is not required to address all evidence that could lead to a conflicting conclusion. Id. In addition, the ALJ expressly rejected evidence contrary to her findings as unpersuasive. Findings of Fact, Conclusions of Law, and Order (Order) at 6, ¶ 2.
The claimant asserts that the medical treatment guidelines (guidelines) are unscientific. The ALJ did make reference to the guidelines and stated that they were not definitive, but a guideline. In our opinion it was appropriate for the ALJ to consider the guidelines on the question of diagnosis of RSD/CRPS. See Rook v. Industrial Claim Appeals Office, P.3d (Colo.App. No. 03CA0700, January 13, 2005); Hall v. Industrial Claim Appeals Office, 74 P.3d 459; Eldi v. Montgomery Ward W.C. No. 3-757-021 (October 30, 1998). Accordingly, the ALJ properly considered, as did several physicians, the application of the guidelines to certain test results.
Here there is ample evidence supporting the ALJ's finding that the respondents overcame the DIME physician's determination that the claimant suffered from CRPS and was entitled to a corresponding impairment rating. The ALJ expressly credited as credible and persuasive Dr. Ring's opinion as to the claimant not having CRPS. Order at 3-4, ¶ 14. Dr. Ring's report dated September 2, 2005, provides an ample explanation of the medical and factual bases for his opinion and fully supports the ALJ's findings. See Exhibit M. The ALJ implicitly found persuasive the determinations of several treating physicians, including Drs. Wunder, Greenberg, Schakaraschwili, and Lesnak, that the claimant did not suffer from CRPS. The corresponding reports of these physicians similarly support the ALJ's findings. See, e.g., Supplemental Exhibits A and B; Exhibit E, November 26, 2002 report; Dr. Greenberg Depo. at 46; Exhibit H. Substantial evidence supports the ALJ's finding that the respondent's overcame by clear and convincing evidence the DIME physician's determination that the claimant had CRPS and should receive a corresponding impairment rating. We therefore decline to disturb the ALJ's corresponding findings and determination.
II.
The claimant's petition for review includes the issue of the ALJ's denial of the claimant's request of a change in physician. We consider the issue notwithstanding the lack of argument in the claimant's brief. See Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986) (issue raised in petition for review but not argued in brief not abandoned). We decline to disturb the ALJ's determination.
Section 8-43-404(5)(a), C.R.S. 2005, permits the employer or insurer to select the treating physician in the first instance. Once the respondents have exercised their right to select the treating physician, the claimant may not change physicians without permission from the insurer or "upon the proper showing to the division." See Gianetto Oil Co. v. Industrial Claim Appeals Office, 931 P.2d 570 (Colo.App. 1996). Section 8-43-404(5)(a) does not contain a specific definition of a "proper showing." Consequently, we have previously held the ALJ possesses broad discretionary authority to grant a change of physician depending on the particular circumstances of the claim. See Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo.App. 1999); Szocinski v. Powderhorn Coal Co., W.C. No. 3-109-400 (December 14, 1998); Merrill v. Mulberry Inn, Inc., W.C. No. 3-949-781 (November 16, 1995). Because of the discretionary nature of the issue, we may not interfere with the ALJ's order unless an abuse of discretion is shown. An abuse exists if the ALJ's order is beyond the bounds of reason, as where it is unsupported by the evidence or is contrary to law. Rosenberg v. Board of Education of School District No. 1, 710 P.2d 1095 (Colo. 1995).
The ALJ's decision as to a change in physician should consider the need to insure the claimant is provided reasonable and necessary medical treatment as required by § 8-42-101(1), C.R.S. 2005, while protecting the respondent's interest in being apprised of the course of treatment for which it may ultimately be held liable. See Yeck v. Industrial Claim Appeals Office, supra. Moreover, the ALJ is not required to approve a change in physician because of a claimant's personal reasons, including mere dissatisfaction. See Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985).
Here, the ALJ expressed concern about the claimant going without medications because she could not reach her treating physician. Order at 5, ¶ 24. Nonetheless, the ALJ found the claimant has "numerous authorized treating physicians" who could provide needed treatment. Order at 5, ¶ 24. We read the ALJ's order to mean there is no need to change physicians to assure proper treatment in light of the fact that she has multiple physicians to attend to her. Her findings are supported by the record. See, e.g., Tr. at 110; Exhibits A C. The findings are therefore binding on review. See 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 December 30, 2005, and mailed January 4, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________________________ John D. Baird
________________________________________ Thomas Schrant
Carolyn Jones, Loveland, CO, T.T.C. Illinois, Inc., Kankakee, IL, Claudia Renegar, Western Guaranty Fund, Denver, CO, IME Unit, Division of Workers' Compensation — Interagency Mail, Darby L. Hoggatt, Esq., Fort Collins, CO, (For Claimant).
Jonathan A. Decker, Esq. and Jeffrey M. Erickson, Esq., Denver, CO, (For Respondents).