Opinion
W.C. No. 4-770-139.
October 24, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge (ALJ) Harr dated June 16, 2011, that determined the claimant had reached maximum medical improvement (MMI). We affirm.
This matter proceeded to hearing to determine whether the respondent overcame the determination of the Division-sponsored independent medical examination (DIME) physician that the claimant had not reached MMI. The ALJ made findings concerning the medical evidence and the claimant's testimony. According to the ALJ's findings, the claimant worked as a police officer and was injured while apprehending a suspect. The suspect banged his head backwards into the claimant's face. The claimant had surgery to correct factures of his nose and its septum. The claimant had difficulties with his temporomandibular joint (TMJ), for which he received treatment, including surgery. A treating physician placed the claimant at MMI as of July 23, 2010, and rated the claimant's medical impairment at ten percent of the whole person.
The claimant sought a DIME, which was conducted by Dr. Swarsen. Dr. Swarsen determined that the claimant had not reached MMI for his nose and jaw injuries. The ALJ recited some of Dr. Swarsen's written report in which Dr. Swarsen opined that the claimant's "head-butt" injury caused a nasal fracture and aggravated pre-existing TMJ problems that resulted in athroscopy. Dr. Swarsen reported that the claimant's TMJ had not affected his daily living activities until after his injury. Dr. Swarsen further opined that there had been a permanent aggravation of his pre-existing condition, although the ALJ did not refer to that portion of Dr. Swarsen's report. Findings of Fact, Conclusions of Law, and Order at 6, ¶ 20; Exhibit 5 at 47.
The ALJ, however, credited the opinions of Dr. Berwick, D.D.S. According to Dr. Berwick, the claimant's nose and TMJ problems pre-existed the claimant's work injury and were related to other causes. The ALJ was further persuaded that the claimant attained MMI as of July 23, 2010, as determined by Dr. Kuehn, a treating physician. The ALJ ordered that the claimant reached MMI on that date.
Pursuant to § 8-42-107(8)(b)(III), C.R.S, a DIME physician's finding of maximum medical improvement is binding on the parties unless overcome by clear and convincing evidence. Montoya v. Industrial Claim Appeals Office 203 P.3d 620 (Colo. App. 2008). "Clear and convincing" evidence has been defined as evidence which demonstrates that it is "highly probable" the DIME physician's opinion is incorrect. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo. App. 1998); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). 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.
The claimant asserts that the ALJ erred by relying on Dr. Berwick's opinions in determining that the respondent had overcome the DIME physician's opinion as to whether the claimant reached MMI. The claimant refers to the following portions of the record from which doubts could be cast about the sufficiency of Dr. Berwick's opinions to overcome those of the DIME physician. Dr. Berwick testified that the claimant's difficulties with his jaw may have originated from an old injury sustained when the claimant was ten years old. Tr. at 33. Dr. Berwick acknowledged that a detailed understanding of the claimant's mechanism of injury is important to his medical conclusions. Tr. at 61. The claimant asserts that Dr. Berwick lacked knowledge of the details of an injury the claimant sustained when a child, but Dr. Berwick only knew that the claimant said he was doing a back flip and injured his nose. Tr. at 61-62. The claimant contrasts Dr. Berwick's knowledge of his childhood injury with the claimant's testimony to the effect that he merely hit his nose with his knee, which resulted in minor bleeding, but did not require treatment or cause symptoms regarding his jaw. Tr. at 71-72. 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). Moreover, where, as here, the evidence is subject to conflicting inferences, it is the ALJ's sole prerogative to resolve the conflicts. Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo. App. 1997).
The claimant takes issue with Dr. Berwick's description of how he sustained his work injury. Dr. Berwick understood that the claimant was injured when a suspect struck the claimant by head-butting the claimant with his forehead. Tr. at 14. The claimant, on the other hand, testified that the suspect used the back side of his head. Tr. at 68. The record, however, also contains the claimant's report of injury, in which the claimant indicated that the suspect resisted arrest "by thrusting his forehead into my nose." Exhibit A. In any event, it is the ALJ's sole responsibility to weigh the evidence and resolve those conflicts, and we must defer to the ALJ's determinations. Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo. App. 1995).
The claimant suggests that his medical history raises doubts about Dr. Berwick's opinion regarding the cause of his TMJ problems. Dr. Berwick agreed that the claimant experienced symptoms in his jaw after his assault at work and that the claimant's medical records did not indicate any referral to a TMJ specialist prior to his assault or a recommendation for jaw surgery. Tr. at 62-63. He had no history of the claimant having problems eating prior to the assault. Tr. at 65. The claimant notes that he testified that TMJ treatment had not been recommended prior to his work injury and that he suffered increases in symptoms after his assault at work. Tr. at 73-75. It was for the ALJ to resolve the inconsistencies and credit that portion of Dr. Berwick's testimony which he found credible, if any. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968); see also Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo. App. 1993) (ALJ may credit part but not all of a witness' testimony).
The claimant also argues that Dr. Berwick's opinions about the cause of his medical condition and whether he reached MMI are contrary to the opinions of all other doctors who evaluated the claimant. The ALJ reviewed the medical reports and opinions of several doctors, but credited Dr. Berwick's opinion as to whether the claimant's work injury caused his TMJ problems:
No other physician or examiner provided such a detailed medical explanation of the mechanism of injury required to cause internal derangement of the left TMJ. The Judge is persuaded by the testimony of Dr. Berwick that medical record evidence from the first two months after claimant's injury fails to support an injury to the jaw sufficient to produce internal derangement of the left TMJ.
Findings of Fact, Conclusions of Law, and Order at 8, ¶ 26. We have no authority to substitute our judgment for that of the ALJ concerning the credibility of the various medical experts or the resolution of conflicting expert testimony. Cordova v. Industrial Claim Appeals Office, supra; Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo. App. 1985).
The claimant further asserts that Dr. Berwick's suggestion that the claimant needs further evaluation is contrary to a finding of MMI. Dr. Berwick indicated that he recommended a re-evaluation of the claimant's conservative care and that the claimant may benefit from further treatment of his jaw. Tr. at 64-65; Exhibit E at 16-17. Concerning the claimant's medical treatment, Dr. Berwick testified that certain recommended treatments would not help the claimant. Tr. at 51-55. It is apparent that Dr. Berwick thought that it was prudent to examine the claimant's need for continuing treatment, regardless of whether the claimant's medical condition was related to his work injury. Nonetheless, Dr. Berwick opined that the claimant's jaw condition was not caused by his work injury. Tr. at 20, 29.
Dr. Berwick's opinions regarding the claimant's medical condition and the issue of MMI, as found by the hearing officer, constitute substantial evidence in support of the ALJ's determination that the respondent had overcome the DIME physician's opinion concerning MMI. 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).
IT IS THEREFORE ORDERED that the ALJ's order dated June 16, 2011, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
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John D. Baird
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Brandee DeFalco-Galvin
FOGEL, KEATING, WAGNER, POLIDORI, AND FREE, P.C., Attn: NICKOLAS D. FOGEL, ESQ., 1290 BROADWAY, SUITE 600, DENVER, CO, (For Claimant).
CITY AND COUNTY OF DENVER, Attn: CHRISTIAN LIND, ESQ., C/O: DENVER, CO, (For Respondents).