Opinion
W.C. No. 4-798-406.
May 18, 2011.
ORDER
The respondent seeks review of an order of Administrative Law Judge Walsh (ALJ) dated December 16, 2010 that denied its request to withdraw an admission of liability, that ordered it to provide medical benefits, and that determined that it had not overcome the DIME report on the issue of causation. We set aside the order insofar as it required the respondent to pay medical benefits, and we remand for entry of another order. In all other respects not related to the issues of medical benefits, the order is affirmed.
A hearing was held on the issues of whether the respondent could overcome the Division-sponsored independent medical examination (DIME), whether it could withdraw the admission of liability filed in this case, and whether it was liable for medical benefits. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant worked in the employer's warehouse, where her job duties included operating a large forklift called a "triple." On July 8, 2009 the claimant was instructed to operate a triple that had a red tag on it, which identifies equipment that has malfunctioned. The claimant was assured that the machine was safe to operate; however, its brakes and steering malfunctioned as the claimant was backing it up with a load of merchandise. The triple struck a row of pallets and the claimant was injured. She was treated at an emergency room early on July 9, 2009 and seen at Emergicare on July 10, 2009, where her knee was moderately swollen. The claimant was given work restrictions that included the use of a patella stabilizer and sitting with her leg up for 45 minutes during an hour.
On February 3, 2010 the claimant underwent a DIME performed by Dr. Reichhardt. He reported that the claimant's injuries were work-related, that she had not reached maximum medical improvement, and that her shoulder was injured and would likely require an impairment rating. The ALJ credited the testimony of Dr. Reichhardt, which was consistent with his DIME report, and the testimony of the claimant regarding the mechanism of the accident and her injuries. The ALJ also found that the claimant's medical treatment was reasonable, necessary, and related to the injury.
Based upon his factual findings the ALJ denied the respondent's request to withdraw its admission of liability. In this regard, the ALJ found that it had not been improvidently filed and that the claimant had sustained injuries in the accident involving the forklift. The ALJ also ordered the respondent to pay for all of the treatment the claimant received prior to the hearing "that is reasonable, necessary, and related to her industrial injury." The ALJ ordered the respondent to reimburse the claimant for the medical care that she paid for and that was reasonable and necessary and related to the injury. The ALJ also ordered that the respondent had failed to overcome the DIME report on the issues of maximum medical improvement and causation.
The respondent appealed and makes several arguments, including that certain of the claimant's medical care was provided by unauthorized providers, that the respondent should not be liable for her surgery because prior authorization was not obtained, that the ALJ erred in finding that the surgery was reasonable and necessary, that the ALJ erred in concluding that the DIME was not overcome by clear and convincing evidence, that the ALJ's findings are insufficient to permit appellate review, and that the ALJ erred in denying the respondent's request to withdraw its admission of liability.
I.
The respondent first argues that neither Dr. Mann nor Dr. Simonich were authorized treating physicians and that therefore the ALJ erred in ordering the respondent to pay for their treatment. We are unable to ascertain from the ALJ's order the basis for his determination that these doctors were authorized and therefore must remand for further findings in this regard.
First, it is evident that the issue of authorization was raised by the respondent. The hearing was set pursuant to the respondent's application for hearing, in which it endorsed the issue of "authorization." At the commencement of the hearing, the ALJ inquired regarding whether the parties had been able to "narrow" the issues and he was informed that the issues for hearing were those contained in the application and the response to the application. Tr. at 7. Following the evidentiary portion of the hearing the respondent submitted a position statement in which it contended that the doctors were not authorized.
Section 8-42-101(1)(a), C.R.S., provides that respondents are liable for authorized medical treatment that is reasonable and necessary to cure or relieve the effects of the industrial injury. Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo. App. 1999); Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo. App. 1990). Authorization refers to a physician's status as the health care provider legally authorized to treat an injured worker. Mason Jar Restaurant v. Industrial Claim Appeals Office, 862 P.2d 1026, 1029 (Colo. App. 1993). Treatment provided upon a referral made in the "normal progression of authorized treatment" becomes authorized. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d. 680 (Colo. App. 1999); Greager v. Industrial Commission, 701 P.2d 168 (Colo. App. 1985). The referral may be general or specific in nature. City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997); Blake v. Crescent Electric Supply Company, W.C. No. 4-320-275 (October 16, 1997); Eckard v. Weatherford International, Inc., W.C. No. 3-796-220 (August 29, 1988).
The claimant bears the burden of establishing her entitlement to medical treatment. See Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo. App. 1997); Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo. App. 1990). Whether the claimant sustained her burden of proof is a factual question for resolution by the ALJ. See City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997). Because these questions are factual in nature, we are bound by the ALJ's determinations in this regard if they are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S.; City of Durango v. Dunagan, supra.
However, here the ALJ entered no factual findings concerning the authorization of Dr. Simonich and Dr. Mann. Accordingly, we are unable to determine the basis for his ordering the respondent to pay for the claimant's medical benefits. In this regard, we note that the ALJ found that the claimant's "care up to the date of hearing was reasonable, necessary and related to the work injury" and he ordered the respondent to pay for that treatment.
On remand the ALJ shall enter another order containing sufficient factual findings to permit review of his determination that the doctors in question were authorized. Because of our resolution of this dispute, it is unnecessary for us to address the respondent's argument that the ALJ erred in ordering payment for certain medical treatment because no prior authorization was obtained. It is also unnecessary for us to address the respondent's argument that, despite the doctor's authorization or lack of it, the ALJ erred in ordering payment for the claimant's surgery because it was not reasonable, necessary and related to the work-related injury. Depending upon the ALJ's order following remand, it may be unnecessary to address those contentions of error in the future.
II.
The respondent also argues that the ALJ erred in determining that the respondents failed to overcome the DIME report on maximum medical improvement by clear and convincing evidence. We are unpersuaded that the ALJ erred in this regard.
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. 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). Moreover, the ALJ may accept all, part, or none of the testimony of a medical expert. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). See also, Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo. App. 1992) (ALJ may credit one medical opinion to the exclusion of a contrary medical opinion).
Here, the respondent sets forth in detail the evidence tending to undermine or lessen the probative value of the DIME report. The respondent notes that the DIME physician conceded that certain other evidence, such as the videotape of the accident, might have been relevant and even "determinative" of certain issues he was asked to address. The respondent also asserts that the DIME physician conceded that he did not have access to all the information that later became available and that would have been relevant to his determinations. The respondent requests that the matter be remanded with instructions to the ALJ to address the "impact" that this other evidence might have had on the opinions of Dr. Reichhardt and on the question whether the respondent overcame the DIME report on the issue of maximum medical improvement.
However, as we understand the respondent's argument it is essentially that we reweigh the factual record and draw inferences different from those of the ALJ's. The respondent essentially argues that in light of the DIME physician's concessions that other evidence might have been relevant and the ALJ's failure to expressly address that other evidence and the effect it might have had on the DIME doctor's opinions, further findings are necessary. However, in reviewing the ALJ's order, it is evident that he weighed the probative value of the competing medical evidence and concluded that the medical evidence tending to overcome the DIME report constituted only a difference of opinion between doctors. We perceive no error in this conclusion and therefore affirm the ALJ's order in this respect.
III.
The respondent also argues that the ALJ's factual findings are insufficient to permit appellate review, especially with regard to certain expert evidence introduced by the respondent and not expressly addressed by the ALJ in his order. Specifically, the respondent argues that it is impossible to fully and sufficiently review the ALJ's order without knowing the ALJ's reasoning concerning the respondent's "scientific evidence." In this regard, the respondent presented extensive testimony and evidence from an expert in the fields of mechanical engineering and accident reconstruction, Herbert Newbold. Tr. at 103ff Newbold was retained as an expert by the respondent to investigate this incident and to form and report upon his opinions regarding a wide variety of issues related to the allegedly compensable accident. He did so and, as noted, provided thorough and detailed testimony concerning those opinions, which generally supported the respondent's factual position that no injury could have occurred.
The ALJ entered no findings concerning Newbold's testimony and made no express determination regarding the persuasive force of his testimony or its probative value. However, contrary to the respondent's argument, the ALJ was not required to do so. It is not our role on review to determine from the ALJ's order his view regarding the probative value of every piece of evidence in support of or contrary to every disputed issue. Nor is it necessary that we be able to infer from the ALJ's order his view regarding the probative value of every piece of evidence. Rather, our review is limited by statute and we may only correct, set aside, or remand an order if the findings of fact are not sufficient to permit appellate review, if conflicts in the evidence are not resolved, if the findings of fact are not supported by the evidence, if the findings of fact do not support the order or if the award or denial of benefits is not supported by the applicable law. Section 8-43-301(8), C.R.S. Moreover, 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. Metro Moving Storage Co. v. Gussert, supra. This narrow standard of review also requires that we defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003).
Here, it was not necessary for the ALJ to enter specific findings of fact concerning Newbold's testimony. As the respondent correctly recognizes, the ALJ is not held to a crystalline standard in expressing findings of fact and conclusions of law. Rather, it is sufficient for the ALJ to make findings concerning that evidence which he considers dispositive of the issues, and he need not discuss the ramifications of all contrary evidence and inferences. Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000); Maes v. Federal Fruit Produce, W. C. Nos. 4-246-932, 4-409-427, 4-413-589, 4-416-013 (May 10, 2001). Under these circumstances, we presume that the ALJ considered the evidence presented by the respondent, but found it unpersuasive. See Dravo Corp v. Industrial Commission, 40 Colo. App. 57, 569 P.2d 345 (1977). The ALJ is not required to make findings concerning every piece of evidence or to explicitly discuss every theory which the ALJ finds to be unpersuasive. Uptime Corp. v. Colorado Research Corp. 161 Colo. 87, 420 P.2d 232 (1966); Magnetic Engineering Inc. v. Industrial Claim Appeals Office, supra.
IV.
The respondent also argues that the ALJ erred in not permitting the withdrawal of its admission of liability. As we understand the respondent's argument in this regard, it is that because the ALJ failed to address the scientific evidence presented by the respondent and certain other evidence supporting the respondent's positions, it is impossible for us to determine the basis for the ALJ's conclusion that the admissions should not be withdrawn. However, the ALJ's findings and conclusions in this regard are sufficient to permit appellate review and we perceive no error. The respondent sought to withdraw the admission ab initio on the grounds that it was based upon materially false information provided by the claimant. The respondent argued in the alternative that the admission should be withdrawn prospectively on the ground that the claimant did not suffer any injury in the very minor incident involving the triple. In this regard the respondent argued that the "overwhelming physical evidence" established that the claimant could not have suffered the claimed injuries in that incident.
Here, the ALJ correctly recognized that the claimant bore the burden of establishing by a preponderance of the evidence that her claim is compensable. Section 8-43-201, C.R.S. Further, he applied the correct legal standard, again recognizing that a claim is compensable if it is shown that the injury was proximately caused by an injury arising out of and in the course of the employee's employment. Section 8-41-301(1)(c), C.R.S. To establish that an injury arose out of an employee's employment, "the claimant must show a causal connection between the employment and injury such that the injury has its origins in the employee's work-related functions and is sufficiently related to those functions to be considered part of the employment contract." Madden v. Mountain W. Fabricators, 977 P.2d 861, 863 (Colo. 1999). Here, based upon his factual findings, the ALJ concluded that the claimant carried her burden of showing a compensable injury. As we understand the ALJ's order, he rejected the respondent's factual contention that the claimant provided materially false information or fraudulently induced the respondent to file the admission of liability. His factual findings regarding the compensability of the claim are supported by substantial evidence and he applied the correct legal standard. Accordingly, we decline to disturb his order in this regard.
IT IS THEREFORE ORDERED that the ALJ's order dated December 16, 2010, is set aside insofar as it ordered the respondent to pay medical benefits. The matter is remanded for entry of another order consistent with the foregoing.
IT IS FURTHER ORDERED that the ALJ's order dated December 16, 2010 is affirmed in all other respects not related to the issue of medical benefits.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
________________________________ Curt Kriksciun
SHARON ARSZMAN, PUEBLO, CO, (Claimant).
TARGET CORPORATION, Attn: KINDRA CONNELLY, C/O: TARGET DISTRIBUTION CENTER HR, PUEBLO, CO, (Employer).
MCDIVITT LAW FIRM, PC, Attn: KIRK WHITEHEAD, ESQ., COLORADO SPRINGS, CO, (For Claimant).
BLACKMAN LEVINE, LLC, Attn: LAWRENCE BLACKMAN, ESQ., DENVER, CO, (For Respondents).
SEDGWICK/CMS TARGET, Attn: VERNON BENNETT, LEXINGTON, KY, (Other Party).