Opinion
W.C. No. 4-369-591
December 23, 1999
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Corchado (ALJ) which awarded the claimant medical benefits, including surgery, for his cervical condition. The respondents contend the ALJ applied an incorrect burden of proof on the issue of causation. Further, the respondents contend the ALJ's findings of fact are not supported by the evidence. Finally, the respondents contend they overcame the Division-sponsored independent medical examination (IME) by clear and convincing evidence. We affirm.
The ALJ found the claimant, a furniture assembler, fell at work on August 15, 1997. Thereafter, the claimant developed symptoms of tingling and numbness in his upper extremities. The claimant reported the symptoms to the employer and was sent for a medical examination on October 22, 1997. The examining physician, Dr. Burris, initially diagnosed an "overuse syndrome."
The claimant's symptoms did not improve with physical therapy, and on January 10, 1998, he underwent a cervical MRI. The MRI revealed mild disc protrusions at C3-4 and C4-5, with a "pronounced" disc extrusion at C5-6. The MRI also revealed that the claimant's spinal canal "is developmentally somewhat small," a condition known as spinal stenosis. The claimant was then referred to a neurosurgeon who diagnosed cervical spondylosis with myelopathy, and recommended surgery. Dr. Burris then placed the claimant at maximum medical improvement (MMI), stating that because the claimant did not give a history of an "inciting incident at work," the disc herniation should be attributed to "the natural degenerative process in his neck which was seen on the" MRI. (Burris report, February 13, 1998). Based on Dr. Burris' report, the respondents filed a final admission of liability for medical benefits only.
The claimant underwent an examination by Dr. Harder. The claimant, who speaks only Spanish, gave a history of falling at work on August 15, 1997. The claimant also told Dr. Harder that he did not immediately report the injury because he did not think he hurt himself severely and believed the symptoms would disappear with time. Dr. Harder opined the claimant sustained a spinal cord injury for which he had not reached MMI, and recommended a change of physician to a neurologist or neurosurgeon. Dr. Harder also testified that, in his opinion, the claimant's fall either caused or aggravated the claimant's cervical condition.
On August 21, 1998, the claimant underwent a Division-sponsored IME on the issues of MMI and permanent impairment. The IME physician, Dr. Ginsburg, reported the claimant gave a history of performing heavy lifting and falling on his hands two years prior to the examination. Dr. Ginsburg diagnosed "myelopathy secondary to spinal cord compression due to those processes noted on MRI, as outlined on the 1/10/98 report." Although Dr. Ginsburg indicated on the "IME Examiner's Summary Sheet" that he agreed with Dr. Burris' MMI date of February 13, 1998, he also stated in his narrative report that the claimant "basically has not reached MMI" and is in need of surgery for the extruded disc. Dr. Ginsburg also provided a 25 percent whole person medical impairment rating for the claimant's cervical condition "based on the patient saying he will not go forth with further treatment and particularly with surgery."
On August 28, 1998, the claimant was examined by Dr. Gross at the respondents' request. Dr. Gross opined the claimant's fall at work was probably not the cause of the claimant's spinal stenosis and disc herniation. Dr. Gross explained that if the alleged fall caused or aggravated the claimant's condition he would have expected immediate symptoms rather than the insidious onset of problems reported by the claimant. (Tr. pp. 21-23). Dr. Gross also opined that the claimant's condition is the result of long-standing degenerative changes superimposed on congenital spinal stenosis. (Tr. pp. 28-29).
The ALJ found the evidence "supports a finding that the Claimant's symptomatology was caused by his employment with the respondent-employer." (Finding of Fact 18). Further, the ALJ stated the IME physician, Dr. Ginsburg, "implicitly found that the Claimant's medical condition was causally connected" to the claimant's employment. (Finding of Fact 16). In support of this determination, the ALJ relied on Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998), for the proposition that a Division-sponsored IME physician's opinion concerning the cause of a particular component of the claimant's medical impairment is an inherent part of the rating process, and the IME physician's opinion must be accepted unless overcome by clear and convincing evidence. (Conclusions of Law C). Finally, the ALJ determined that the opinions of Dr. Gross do not constitute clear and convincing evidence concerning the cause of the claimant's cervical impairment. The ALJ specifically noted that Dr. Gross communicated with the claimant by way of the claimant's twelve-year-old son, and "admitted" that it is difficult to determine within the "standards of reasonable degree of probability [sic] whether the claimant's cervical condition resulted from the claimant's fall." Consequently, the ALJ ordered the respondents to pay for the surgery needed to treat the claimant's cervical condition.
I.
On review, the respondents first contend the ALJ applied an incorrect burden of proof concerning the issue of "compensability." Relying on our decision in Faulkner v. Alexander Dawson School, W.C. No. 4-294-162 (May 21, 1999), the respondents argue the claimant has the initial burden of proof to establish, by a preponderance of the evidence, that a compensable injury occurred. The respondents reason that the deference accorded an IME physician's finding of causation under Qual-Med pertains to whether a particular component of the claimant's impairment was caused by an established injury. The respondents assert the ALJ confused these two burdens of proof and improperly shifted the burden to them to disprove a compensable injury. We find no error.
It is true, as the respondents argue, that in Faulkner we held the claimant maintains the threshold burden of proof to establish the existence of an injury arising out of and in the course of employment. Further, we determined that the deference accorded the Division-sponsored IME physician's finding of causation under Qual-Med pertains to the question of whether a particular component of the claimant's medical impairment is related to the compensable injury, not whether a compensable injury occurred in the first place.
However, we perceive no violation of these principles here. The ALJ explicitly found the claimant sustained an injury at work on August 15, 1997. The ALJ further determined the testimony of the claimant and Dr. Harder is credible. Finally, the ALJ found the evidence supports a conclusion that the claimant's symptoms were caused by his employment. (Finding of Fact 18).
In view of these findings, we understand the ALJ to have determined the claimant met his initial burden of proof to establish that a compensable injury occurred. Thereafter, the questions of when the claimant reached MMI for the medical conditions caused by the injury, and the degree to which any medical impairment is attributable to the industrial injury, were subject to the statutory IME process. Qual-Med, Inc. v. Industrial Claim Appeals Office, supra; Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995). The ALJ's references to overcoming Dr. Ginsburg's opinions by clear and convincing evidence concerned Dr. Ginsburg's "implied" determination that the claimant's industrial injury was the cause of his need for surgery. Therefore, there was no error.
II.
The respondents next contend the ALJ erred in finding that Dr. Ginsburg's IME report implies there is a causal relationship between the claimant's work-related injury and the need for surgery and treatment. In support of this proposition the respondents point out that Dr. Ginsburg stated the claimant developed myelopathy "secondary to spinal cord compression due to those processes" noted in the MRI report. The respondents assert that is tantamount to a statement that Dr. Ginsburg concluded the claimant's condition is the result of long-standing degenerative changes, not the industrial injury. We are not persuaded.
If the exact nature of an IME physician's opinion is subject to conflicting interpretations or inferences, it is the ALJ's province to resolve the conflict and determine the IME physician's true opinion. See Lambert Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656 (Colo.App. 1998). To the extent the ALJ's determination of the issue is supported by substantial evidence, it must be upheld on review. Section 8-43-301(8), C.R.S. 1999. In applying this standard of review we must defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The respondents' assertions notwithstanding, the ALJ was not compelled to read Dr. Ginsburg's report as finding that the claimant's spinal stenosis and cervical condition are solely attributable to pre-existing degenerative changes. Although the MRI report suggests the presence of a degenerative conditions, it does not definitively address the etiology of the claimant's cervical condition, particularly the herniated disc, nor does it rule out an injury as an aggravating circumstance. Thus, Dr. Ginsburg's statement that the claimant developed spinal cord compression due to the "processes" noted in the MRI need not be viewed as a definitive statement concerning the cause of the claimant's condition.
Moreover, we perceive no error in the ALJ's reliance on the Qual-Med opinion as authority for inferring that Dr. Ginsburg intended to find a causal relationship between the claimant's injury and the need for surgery. Indeed, the ALJ's findings in this case are not substantially different from those in Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998), where the ALJ found that the treating physician's decision to rate the claimant's cervical condition "inherently states that the cervical condition and upper extremity condition" are directly related to claimant's injuries and "not to pre-existing conditions or non-industrial injuries." In view of this finding, the Egan court held that the ALJ was not entitled to determine the cause of the claimant's cervical impairment absent a Division-sponsored IME. In support, the court stated that the determination of whether a "particular component of the claimant's overall medical impairment was caused by the industrial injury is an inherent part of the rating process under the AMA Guides."
Here, Dr. Ginsburg determined the claimant was not at MMI unless he refused further treatment. In that event, Dr. Ginsburg was willing to rate the claimant's cervical impairment. Consequently, the record contains substantial evidence from which the ALJ could infer that Dr. Ginsburg was of the opinion that the claimant's cervical condition was caused or aggravated by the industrial injury, or Dr. Ginsburg would not have provided a rating. This conclusion is reinforced by Dr. Harder's testimony that the rating of a condition implies a causal connection between the rated condition and the industrial injury. (Tr. p. 15).
III.
Respondents next contend the ALJ erred by "misstating the testimony of Dr. Gross." The respondents assert that Dr. Gross stated on numerous occasions that he believed the claimant's spinal stenosis was the result of pre-existing degenerative conditions. Therefore, the respondents assert the ALJ grossly misconstrued Dr. Gross's testimony in Findings of Fact 13 and 14. We find no error.
It is well-established that the ALJ determines the weight and credibility of expert medical testimony concerning the issue causation. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). If the testimony of an expert contains inconsistencies, the ALJ may resolve them by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). Further, in evaluating expert medical testimony, the ALJ may consider whether or not the expert received a complete and accurate medical history. See Industrial Commission v. Albo, 167 Colo. 467, 447 P.2d 1006 (1968).
The respondents' arguments notwithstanding, Dr. Gross admitted that determining causation was a difficult issue and depended on the accuracy of the medical history provided by the claimant. (Tr. p. 42). In fact, Dr. Gross testified that he understood the claimant's fall occurred in 1996. (Tr. p. 37). This assumption was contrary to the ALJ's explicit finding of fact that the fall actually occurred on August 15, 1997. Under these circumstances, we cannot say the ALJ erred as a matter of law in discounting the opinions of Dr. Gross.
IV.
The respondents' final assertion is that the ALJ erred in determining that they failed to overcome Dr. Ginsburg's finding of causation by clear and convincing evidence. Essentially, the respondents assert the ALJ was compelled to find the claimant's cervical condition was caused by pre-existing conditions, not the alleged injury. We disagree.
The determination of whether the respondents overcame Dr. Ginsburg's opinion by clear and convincing evidence was a question of fact for determination by the ALJ. Metro Moving and Storage Co. v. Gussert, supra. Here, the ALJ credited Dr. Harder's testimony, which supports the finding of a causal relationship between the injury and the claimant's need for surgery. While the respondents presented conflicting expert testimony, it was for the ALJ to resolve the conflict. We decline the respondents' invitation to substitute our judgment for that of the ALJ concerning the weight and credibility to be assigned the expert medical evidence in this case. Rockwell International v. Turnbull, supra.
IT IS THEREFORE ORDERED that the ALJ's order dated May 10, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed December 23, 1999 to the following parties:
Ramon Garcia Juarez, 3326 Gilpin, Denver, CO 80205
Big Sur Waterbeds/Pillow Kingdom, Attn: Gregory A. Ruegsegger, Esq., 300 Union Blvd., #350, Lakewood, CO 80228
Pillow Kingdom Inc., 3950 Kearney St., Denver, CO 80207-1326
General Insurance Company of America, Safeco Insurance Co., P.O. Box 5687, Denver, CO 80217
Pepe J. Mendez, Esq., 700 Broadway, #1101, Denver, CO 80203 (For Claimant)
Douglas A. Thomas, Esq., 600 17th St., #1600N, Denver, CO 80202 (For Respondents)
BY: A. Pendroy