Opinion
W.C. No. 4-751-557.
January 19, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated August 24, 2010 that denied the claimant's request for medical benefits and additional temporary disability benefits on the ground that the claimant failed to overcome the Division-sponsored independent medical examination (DIME). We affirm.
The claimant sustained a work-related injury on February 19, 2008. Dr. McBride conducted a DIME on May 26, 2009 and reported that the claimant's low back pain is not related to his industrial injury. Dr. McBride opined that the claimant's left ankle was fractured, but well-healed and gave no impairment rating for the claimant's ankle or other body parts. The respondents filed a final admission of liability consistent with the DIME report.
The claimant sought to overcome the DIME physician's opinions as to the extent of his compensable injuries and maximum medical improvement. However, the ALJ was not persuaded that the claimant had overcome the DIME physician's opinions and denied further benefits.
The claimant asserts on appeal that the ALJ erred in not finding that the claimant overcame the DIME physician's opinions as to the extent of his injuries and corresponding issues related to maximum medical improvement, temporary disability benefits, and medical benefits. The claimant carefully reviews various portions of the record and focuses on the ALJ's failure to find the claimant's back problems to be related to his work injury and compensable. We find no reversible error.
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.
Here, the DIME physician, and later the ALJ, considered the extent of the claimant's injury. The ALJ found that the DIME physician, Dr. McBride, determined that the claimant's low back pain was not related to his workers' compensation injury. The ALJ found Dr. McBride's medical evidence more credible and entitled to greater weight than medical evidence to the contrary. The claimant asserts that the medical evidence showing that the claimant's pre-existing spondylolisthesis was asymptomatic prior to his industrial injury is undisputed and that his disability and need for medical care clearly resulted from its aggravation, acceleration, or combination with his industrial fall, thereby rendering his back condition compensable. The claimant further contends that Dr. McBride failed to consider whether the claimant's industrial injury aggravated his spondylolisthesis. As the claimant contends, there is evidence in the record that could support his assertion that his back condition is a part of his industrial disability. However, the ALJ was not compelled to make that determination.
The issue of the cause of claimant's back symptoms was properly before the DIME physician. The finding of a DIME physician that a claimant has or has not reached MMI is binding unless overcome by clear and convincing evidence. Section 8-42-107(2)(b)(III). 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). A finding of MMI inherently involves issues of diagnosis because the physician must determine what medical conditions exist and which are causally related to the industrial injury. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). Because the determination of causation is an inherent part of the diagnostic process, the DIME physician's finding that a condition is or is not related to the industrial injury must be overcome by clear and convincing evidence. Id.
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). 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). Given the ALJ's consideration of the evidence we find no basis for disturbing his determination that the claimant failed to establish that he was not at MMI or entitled to additional benefits.
For example, Dr. McBride provided testimony by deposition. He indicated that the claimant did not sustain an injury to his low back or spine because the claimant's industrial fall was not "significantly traumatic enough to cause mechanical or damage to his spine." McBride Depo. at 28. Dr. McBride understood that a claimant's condition could be compensable if the claimant's industrial injury aggravates or accelerates a pre-existing abnormality or disease process. McBride Depo. at 34. The claimant's complaints of back pain were due to his musculoskeletal degenerative back. McBride Depo. at 36. The claimant's lack of significant back pain when examined by two other doctors and the claimant's denial of back pain at the emergency room, gave the appearance that the claimant's "back pain is related to degenerative changes and not to the acute injury." McBride Depo. at 47. Dr. McBride would have a different opinion if the claimant presented to the emergency room complaining of back pain. McBride Depo. at 48. It is not possible for a degenerative slippage like the claimant's to progress within a week or two. Instead, the claimant "has a degenerative slip that does not progress unless it's traumatically mediated, and [the claimant] did not appear to have a traumatic slip, based on his exam at the time of the injury." McBride Depo. at 50. Dr. McBride's primary reason for concluding that the claimant's low back pain was not caused or aggravated by his industrial fall was that "at the time of the emergency room, he had no pain, and specifically denied back and neck pain." Dr. McBride had other objective reasons, as well, for his conclusion. McBride Depo. at 51-52. In our view, there is substantial evidence supporting the ALJ's determination. The claimant's remaining assertions do not persuade us to disturb the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order dated August 24, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_____________________________ John D. Baird
_____________________________ Curt Kriksciun
ATR COLLISION, INC., Attn: AMY EREON, 550 E BROOKSIDE STREET, COLORADO SPRINGS, CO, (Employer).
WESTPORT INSURANCE COMPANY, Attn: CHERI HUNTER, C/O: GALLAGHER BASSETT SERVICES, INC., KANSAS CITY, MO, (Insurer).
STEVEN U. MULLENS, PC, Attn: STEVEN U. MULLENS, ESQ./PATTIE J. RAGLAND, ESQ., COLORADO SPRINGS, CO, (For Claimant).
DWORKIN CHAMBERS WILLIAMS YORK BENSEN EVANS, PC, Attn: DAVID DWORKIN, ESQ./MELISSA L. BATES, ESQ., DENVER, CO, (For Respondents).