Opinion
W.C. No. 4-775-399.
May 12, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated February 9, 2010, that determined the claimant's impairment rating was zero and denied the claims for additional temporary total disability (TTD) benefits and medical benefits. We affirm.
The claimant suffered an industrial injury to his back and right shoulder on September 8, 2008. Surveillance video was taken of the claimant in February and March of 2009. On March 4, 2009, Dr. Venegas viewed the video of the claimant and opined that he was at maximum medical improvement (MMI) and had no impairment. A copy of the letter from Dr. Venegas was sent to Dr. Jones on March 9, 2009 asking him whether he agreed with the opinions of Dr. Venegas. Dr. Jones signed the letter and stated he agreed with Dr. Venegas' opinions on MMI and that the claimant had no impairment. A final admission of liability was filed on March 16, 2009 based on the findings of Dr. Venegas. The claimant objected and underwent a Division-sponsored independent medical examination (DIME). The ALJ found that the DIME physician ultimately agreed with Dr. Venegas and Dr. Jones that the claimant had no impairment functionally as it related to his back and right shoulder.
The ALJ determined that the claimant had failed to overcome the DIME physician's opinion on MMI and impairment. The ALJ determined that the claimant's impairment rating was zero, that the claimant's MMI date was March 4, 2009 and he was not entitled to additional TTD benefits after that date. The ALJ also dismissed the claim for additional medical benefits. The claimant brings this appeal. The claimant contends that the ALJ made an erroneous ruling in finding that the final opinion of the DIME physician was that the claimant had reached MMI and that the claimant had failed to overcome the final DIME report.
As noted by both the claimant and the respondents, if the DIME physician offers ambiguous or conflicting opinions concerning MMI or impairment, it is for the ALJ to resolve the ambiguity and determine the DIME physician's true opinion as a matter of fact. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000); Stephens v. North Air Package Express Services, W. C. No. 4-492-570 (February 16, 2005), affd, Stephens v. Industrial Claim Appeals Office (Colo. App. 05CA0491, January 26, 2006) (not selected for publication). In so doing, the ALJ should consider all of the DIME physician's written and oral testimony. Lambert Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656, 659 (Colo. App. 1998). A DIME physician's finding of MMI and permanent impairment consists not only of the initial report, but also any subsequent opinion given by the physician See Andrade v. Industrial Claim Appeals Office, 121 P.3d 328 (Colo. App. 2005) (ALJ properly considered DIME physician's deposition testimony where he withdrew his original opinion of impairment after viewing a surveillance video); see also Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082 (Colo. App. 2002) (noting that DIME physician retracted original permanent impairment rating after viewing videotapes showing the claimant performing activities inconsistent with the symptoms and disabilities she had reported). We may not interfere with the ALJ's resolution of these issues if supported by substantial evidence. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra.
The ALJ made the following relevant findings of fact with record support on the issue of what was the ultimate opinion of the DIME physician. The DIME physician assigned a 17 percent whole person impairment rating. Exhibit A at 6. The DIME physician opined that this impairment might be due to age-related changes and the claimant should seek care under his group health insurance. Exhibit A at 6. The respondents filed an application for hearing to overcome the DIME physician's finding. A letter was sent from the claimant's counsel asking the DIME physician to review the surveillance video and opine whether his opinion changed in any way regarding impairment or MMI. Exhibit A at 2. The DIME physician stated that the claimant appeared to be performing activities and moving his back and right shoulder more than when he was able to obtain in the office by direct measurements. Exhibit A at 1. The DIME physician also stated that he would have to agree with Dr. Venegas and Dr. Jones that the claimant had no impairment functionally as it related to his back and right shoulder. Exhibit A at 1. The respondents deposed the DIME physician who recognized the claimant to be the individual in the surveillance video. Finn Depo. at 6. The DIME physician testified that the report he initially authored was incorrect. Finn Depo. at 8. The DIME physician testified in his deposition that the claimant had no impairment, rather than the 17 percent as he had initially reported. Finn Depo. at 6-8. The DIME physician testified that he agreed with the opinions of Dr. Venegas and Dr. Jones that the claimant was at MMI as of March 4, 2009 and had no permanent impairment. Finn Depo. at 8-9. The DIME physician testified the claimant presented differently on his exam of June 3, 2009 than what he saw on the surveillance video. Finn Depo. at 9. In our view, there was substantial evidence supporting the ALJ's resolution of any ambiguities in the DIME physician's true opinion. Because the issue 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.
The claimant points to other portions of the transcript of the DIME physician's deposition that suggest that his opinions on MMI and permanent impairment were contingent in nature. Finn Depo. at 32-35. However, 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 Johnson v. Industrial Claim Appeals Office, 973 P.2d 624, 626 (Colo. App. 1997) (ALJ's prerogative to evaluate evidence "extends to resolving the inconsistencies in a particular witness' testimony"); 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).
We also note that the ALJ made the following additional findings of fact with record support. The surveillance video taken of the claimant was compelling. Exhibit L. Dr. Venegas opined there were discrepancies in how the claimant presented in the office and how he presented in the video. Exhibit D at 31. Dr. Jones and Dr. Venegas opined that no further medical care was required for the claimant and their opinions were credible. Exhibit E at 33A; Exhibit D at 31. The claimant's opinion about his MMI status and medical condition were not credible. These findings are consistent with the ALJ's identification of the DIME physician's ultimate opinion. We are not persuaded to interfere with the ALJ's determination.
IT IS THEREFORE ORDERED that the ALJ's order dated February 9, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
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John D. Baird
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Thomas Schrant THIS PAGE INTENTIONALLY LEFT BLANK
DANIEL WILLIAMS, CANON CITY, CO, (Claimant).
CANON CITY ROYAL GORGE RAILROAD, LLC, Attn: GLENN HAYES, CANON CITY, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D. FLEWELLING, ESQ., DENVER, CO, (Insurer).
FRANKLIN D AZAR ASSOCIATES, Attn: JOHN M CONNELL, ESQ., AURORA, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN LLC, Attn: BRADLEY J HANSEN, ESQ., DENVER, CO, (For Respondents).