Opinion
W.C. No. 4-648-693.
October 3, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Broniak (ALJ) dated May 13, 2008 that determined the claimant was not permanently and totally disabled and found the claimant's permanent impairment resides on the schedule and not the whole person. We affirm.
The claimant had an industrial injury while lifting a couch on March 21, 2005. The claimant suffered a biceps tendon tear. The claimant underwent surgery, which required a piece of fascia lata subcutaneous tissue to be taken from his left thigh. Dr. Ladwig placed the claimant at maximum medical improvement (MMI) on May 4, 2006. Dr. Ladwig assessed an impairment rating of five percent to the left upper extremity and five percent to the left lower extremity. The claimant had been working as a driver, but after the industrial injury it was determined that he did not meet the standards to operate a commercial vehicle in Colorado. The ALJ concluded that the claimant's functional impairment was limited to his left upper extremity and left lower extremity. On the issue of permanent partial disability, the ALJ awarded the claimant eight percent for his left upper extremity and five percent for his left lower extremity. The ALJ denied the claim for permanent total disability (PTD) benefits.
I.
On appeal, the claimant argues that he did not "get the benefit of the bargain" in the DIME process. The claimant's first argument involving the DIME process concerns testimony from the DIME physician that she personally only received $350 or $400 dollars from performing the DIME with the rest of the standard fee of $675 going to the medical organization where she worked. Therefore, the clamant contends he did not get what he paid for. We consider this argument to be without merit.
The claimant cites W.C. Rule of Procedure 11-4 (A), 7 Code Colo. Reg. 1101-3 at 47, which provides that the physician performing the DIME shall receive from the requesting party a fee of $675. However, there is no restriction contained in the rule on the amounts the DIME physician agrees to pay for assistance in the conduct of her practice. The DIME physician testified that the group she was associated with Medical Ops Management (Med Ops) provided certain services for her. Med Ops made all the arrangements including scheduling the DIME exams. Further, Med Ops provided offices to examine the patients and took care of the billing and transcription. Barrett Depo. at 5.
Here the claimant underwent an evaluation by the DIME physician and a report from that examination was prepared and submitted into evidence. Exhibit 4. In our view, the fact that the claimant may not view the DIME report as favorable does not alter the fact that he received what he paid for.
The claimant next argues that the DIME was not fair and unbiased. The claimant contends that simply by using Med Ops in the preparation of the DIME report, the DIME physician violated W.C. Rule of Procedure 11-2(k), 7 Code Colo. Reg. 1101-3 at 44. The Workers' Compensation Act is generally silent regarding communication with a DIME physician. Whether and to what extent communication with the DIME physician is permitted is therefore governed by the rules of procedure promulgated by the Director. Rule 11-2(k) provides that a physician shall comply with the following:
In order to assure fair and unbiased IME's, not engage in communication regarding the IME with any person other than Division staff, except under the following circumstances: the claimant during the IME examination, the requesting party when setting the appointment, by approval of the Director, both party written agreement, an order by an administrative law judge, by deposition or subpoena as approved by an administrative law judge.
The principles governing the interpretation of administrative regulations are the same as those concerning statutes. Gerrity Oil and Gas Corp. v. Magness, 923 P.2d 261 (Colo.App. 1995), aff'd in part, rev'd in part on other grounds, 946 P.2d 913 (Colo. 1997). In interpreting these provisions, we apply the ordinary rules of statutory construction. The purpose of statutory construction is to effect the legislative intent. Because the best indicator of legislative intent is the language of the statute, words and phrases in a statute should be given their plain and ordinary meanings. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). We do not depart from the plain meaning unless it leads to an absurd result. Peregoy v. Industrial Claim Appeals Office, 87 P.3d 261 (Colo.App. 2004).
In our view, Rule 11-2(k) was not designed to prevent communication between the DIME physician and personnel of a medical office necessary to handle the ministerial aspects of the DIME, such as arrangements for the examination and transcription of the report. In our view, to accept the claimant's interpretation of Rule 11-2(k) would lead to absurd results. Rather Rule 11-2(k) was designed to prevent contact between the DIME and any of the parties which could possibly taint the opinion of the DIME physician. See Lenox v. United Airlines, W. C. No. 4-616-469 (June 02, 2006). Therefore, we are not persuaded by the claimant's argument that the DIME physician violated Rule 11-2(k).
The claimant's next argument involving the DIME process involves allegations of dishonest practices by Med Ops. After the conclusion of the initial hearing, accusations were made through a local new channel that the owner of Med Ops modified medical reports. The claimant argues that deposition of Med Ops employees showed that they admitted changing medical records to benefit insurance companies and this violated Rule 11-2. The claimant further argues that the DIME physician here could not testify that her report had not been altered or changed by a third party. The claimant filed a motion to strike the DIME and for a new hearing. The claimant attached copies of a news story regarding practices by Med Ops, an affidavit from a workers' compensation attorney expressing concerns about the DIME process and depositions of persons connected with Med Ops regarding changes in medical reports done without the knowledge of the physicians involved. The ALJ in an order dated August 22, 2007 ordered that a hearing be set for the claimant to present any evidence on the dishonest practices of Med. Ops and how the allegedly tainted DIME opinion would affect the ALJ's determination regarding PTD benefits. In an order dated September 12, 2007, the claimant was also allowed to depose the DIME physician. In an order dated January 8, 2008 the ALJ denied the claimant's motion to strike the DIME and denied the motion for new hearing.
Because the issue of possible changes in the DIME physician's report is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record.
Here the ALJ found with record support that the DIME physician testified that nothing of substance had been changed in her report. Barrett Depo. at 15-16, 30. The ALJ further found that the new evidence regarding Med Ops failed to show that the result of the DIME performed here was changed. The claimant has not pointed to any specific evidence, nor are we aware of any evidence, indicating that the report of the DIME physician here was changed. Under these circumstances, we cannot say that the ALJ erred as a matter of law in her determination that that the DIME was not tainted despite the allegations against Med Ops.
Further, the specific relief request by the claimant here is for a new DIME to be scheduled and a new determination to be made on the issues of permanent partial disability and permanent total disability. However, the ALJ determination on the claimant's entitlement to PTD disability benefits did not turn on the report of the DIME physician but, as the claimant asserts in his brief in support of his petition to review, on the testimony of the respondents' vocational expert and the work restrictions identified by Dr. Ladwig.
In addition, the ALJ found that the claimant was only entitled to a scheduled, not a whole person, impairment rating. It is well established that the question of whether the claimant sustained a scheduled injury within the meaning of § 8-42-107(2)(a), C.R.S. 2008, or a whole person medical impairment compensable under § 8-42-107(8)(c), is one of fact for determination by the ALJ. Kolar v. Industrial Claim Appeals Office, 122 P.3d 1075 (Colo.App. 2005); Walker v. Jim Fuoco Motor Co., 942 P.2d 1390 (Colo.App. 1997). Moreover, the ALJ after properly noting that the DIME physician's opinion was not entitled to presumptive effect on extremity ratings, found that the treating physician impairment rating of the left lower extremity was more persuasive than the DIME physician's opinion. The ALJ, based on the DIME physician's opinion, did award the claimant permanent partial disability of eight percent for his left upper extremity. However, the claimant has not offered specific argument that the ALJ erred in this regard. Under these circumstances, any error regarding the DIME process was harmless and will be disregarded. See § 8-43-310 C.R.S. 2008; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988).
II.
The claimant next contends that the ALJ, after allowing the matter to be set for an additional hearing on the alleged dishonest practices of Med Ops, abused her discretion by not allowing complete discovery surrounding the DIME process. Specifically, the claimant had requested that the respondent insurer be ordered to answer interrogatories generally directed to information concerning the contacts between the insurer and Med Ops and between the respondents' retained law firm and Med Ops. The ALJ denied this request for additional discovery.
Generally, we may not interfere with the ALJ's rulings concerning discovery unless there has been an abuse of discretion. See Sheid v. Hewlett Packard, 826 P.2d 396 (Colo.App. 1991); Hoffman v. United Airlines, Inc. W. C. No. 4-991-822 (September 23, 2002). 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 unsupported by the evidence. 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).
Here the additional hearing was set by the ALJ on the narrow issue of whether any alleged dishonest practices of the Med Ops employees had affected the DIME physician's opinion in this particular case and how the allegedly tainted DIME opinion would affect the ALJ's determination regarding permanent total disability. The requested interrogatories can be viewed as not necessarily relevant to the issues set for hearing. Therefore, we cannot say that the ALJ's order refusing to order the respondents to answer interrogatories exceeds the bounds of reason.
In addition, we note that after the claimant had filed his motion for a new hearing and to strike the DIME because of the allegations involving Med Ops, the ALJ entered a procedural order on August 22, 2007 allowing the claimant to set a second hearing on the issues raised by the claimant. The ALJ further granted the claimant's motion to depose the DIME physician prior to the hearing set on the claimant's motion for a new hearing. At the hearing, the claimant presented no evidence other than the transcript of the DIME physician.
Further, the ALJ's first order on the merits of the case ruling against the claimant was issued on July 9, 2007 following a hearing held on May 2, 2007. In the motion for a new hearing and to strike the DIME, the claimant alleged that on May 15, 2007, thirteen days after the hearing, it became public knowledge because of a news story that employees of Med Ops had admitted improprieties. The claimant's motion was dated July 30, 2007 over two months after the news story and after the claimant knew that an order on the merits had been issued by the ALJ against him. Under these circumstances, we cannot say that at this late stage of the litigation, the ALJ's refusal to grant the claimant's additional discovery request constituted an abuse of discretion.
III.
The claimant next contends that the ALJ gave too much deference to the DIME physician. The claimant argues that in the ALJ's first order of July 9, 2007 the ALJ applied a "clear and convincing evidence" burden regarding permanent disability despite the fact that the ALJ found that the situs of the impairment resided on the schedule. However, the ALJ in the supplemental order under review here recognized her error and found that the DIME physician's opinion was not entitled to presumptive effect. Further, the ALJ on one element of permanent impairment found a treating physician's opinion to be more persuasive then the opinion of the DIME physician. The claimant argues that despite this change it is "transparent" that the ALJ gave too much deference to the DIME physician. We are not persuaded that the ALJ erred.
It is provided in § 8-43-301(5), C.R.S. 2008 that in ruling on a petition to review, an administrative law judge may issue a supplemental order and may amend or alter the original order or set the matter for further hearing. The purpose of section § 8-43-301(5) is to allow the ALJ to reconsider a prior order in view of errors and objections raised in a petition for review. Section 8-43-301(2); Bimson v. May D F, W.C. 4-163-733 (June 29, 1994). It is clear that the situation contemplated in § 8-43-301(5) is precisely what transpired in the present case and that the ALJ reconsidered her prior order and utilized the proper burden of proof. Therefore, we see no reason to interfere with the ALJ's order.
IV.
The claimant finally asserts that the ALJ's finding that the claimant is not permanently and totally disabled is not supported by substantial evidence. Specifically, the claimant argues that the ALJ misunderstood the work restrictions provided by the claimant's treating physician, Dr. Ladwig. We disagree.
The ALJ found that Dr. Ladwig provided the following restrictions: lifting with both arms up to 30 pounds occasionally and 10-15 pounds frequently; no restrictions for the leg; occasional shoulder level or above reaching with left arm: and no driving duties while working. Findings of Fact, Conclusions of Law, and Order at 6, ¶ 23.
Because these issues are factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999). In particular, we note that 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).
The claimant's assertion notwithstanding, Dr. Ladwig's deposition testimony fully supports the ALJ's findings regarding the claimant's work restrictions. Dr. Ladwig testified that the claimant could occasionally lift in the "30-ish-pound range." Ladwig Depo. at 21. Dr. Ladwig testified that the claimant could lift "10, 15-ish on a moderately frequent basis with 30-ish as being the max." Ladwig Depo. at 22. Dr. Ladwig testified that there were no work restrictions applicable to the claimant's lower extremity. Ladwig Depo. at 31. Dr. Ladwig testified that the claimant could reach shoulder level on an occasional basis. Ladwig Depo. at 23-24. Dr. Ladwig testified that he would support a denial of the claimant's commercial driving license. Ladwig Depo. at 27.
The claimant argues that Dr. Ladwig in other parts of his testimony requested another functional capacity evaluation be performed. The claimant further argues that when offered the opportunity to agree with another physician's physical restrictions Dr. Ladwig merely stated he neither agreed nor disagreed with that physician's opinion. Exhibit 5 at 3. However, 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).
A claimant is entitled to PTD benefits if the claimant is "unable to earn wages in the same or other employment." Section 8-40-201(16.5)(a), C.R.S. 2008. Under the statute, the claimant carries the burden of proof to establish by a preponderance of the evidence that he is permanently and totally disabled. The overall objective is to determine whether employment is reasonably available to the claimant under his particular circumstances. In making this determination the ALJ may consider the effects of the industrial injury in light of the claimant's "human factors." Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). These factors may include the claimant's physical condition, mental ability, age, employment history, education and the "availability of work" the claimant can perform. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998).
Ultimately, whether a claimant is permanently and totally disabled is an issue of fact for resolution by the ALJ. Weld County School District RE-12 v. Bymer, supra; Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999). Because the question of whether the claimant proved he is entitled to PTD benefits is factual in nature, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8). This standard of review requires us to view the evidence in a light most favorable to the prevailing party and, as noted above, defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Thus, the scope of our review is "exceedingly narrow." Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo.App. 1995). The fact that some evidence, if credited, might support a different result affords no basis for relief on appeal. Weld County School District Re-12 v. Bymer, supra. In this regard, we note that the credibility of expert witnesses is a matter within the province of the ALJ as fact finder. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). It is according to this deferential standard of review that we consider the claimant's assertions.
Here, the ALJ noted that a surveillance video revealed the claimant in no apparent distress walking while holding a cane. Exhibit Q. Based on the credible testimony of the respondents' vocational expert and a consideration of a number of "human factors" the ALJ found that the claimant had failed to establish that it is more likely than not that he is unable to earn any wages in the same or other employment. Tr. at 156-57. The ALJ noted that the claimant was only 41 years old and had acquired sufficient skills throughout his employment history in order to earn wages. Exhibit M. The ALJ noted that despite the educational limitations that the claimant raised, the claimant can use a computer and had taken and passed a written commercial drivers' license examination. Tr. at 60. Although the claimant had been unable to continue commercial truck driving due to the inability to pass the physical test, the respondents' vocational expert had identified several vocational opportunities that were within the work restrictions provided by Dr. Ladwig. Exhibit M; Tr. at 149. The ALJ concluded that the claimant was capable of earning wages in some amount. In our view, the record amply supports the ALJ's finding that the claimant was not permanently and totally disabled.
IT IS THEREFORE ORDERED that the ALJ's order dated May 13, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird ____________________________________ Thomas Schrant
PATRICK YOUNGS, AURORA, CO, (Claimant).
WHITE MOVING STORAGE, INC., DENVER, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
CHRIS FORSYTH LAW OFFICE, LLC, Attn: CHRIS FORSYTH, ESQ., DENVER, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN LLC, Attn: RICHARD J LIBY, ESQ., DENVER, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: MS TINA AICHELE, DENVER, CO, (Other Party).