Opinion
W.C. No. 4-657-036.
February 2, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated September 14, 2010, that determined the claimant had failed to overcome by clear and convincing evidence the opinion of the Division-sponsored independent medical examination (DIME) physician. We affirm.
The claimant injured her right thumb on April 28, 2005 when she lifted a two-liter bottle while working as a checker for the employer. The respondents admitted liability for this injury and the claimant underwent various medical procedures involving her right upper extremity., The claimant was later diagnosed with left upper extremity conditions. Liability for some of these left upper extremity conditions was disputed. Dr. Hattem issued a maximum medical improvement (MMI) and impairment rating report on March 10, 2009 and the respondents filed a Final Admission of Liability (FAL) consistent with Dr. Hattem's MMI andimpairment rating. The claimant objected to the FAL and requested a DIME.
The DIME physician agreed that the claimant had reached MMI and rated the claimant's impairment. The respondents filed an FAL consistent with the DIME physician's report and the claimant filed an application for hearing to challenge the report of the DIME physician. The ALJ found that the claimant had failed to meet her burden of proving that the determination of MMI and impairment rating provided by the DIME was clearly wrong. The ALJ denied the claimant's request to overturn the opinion of the DIME physician.
On appeal the claimant requests that we remand the matter to the ALJ with instructions to determine the issue of causation of the left-sided conditions under a preponderance of the evidence standard. The claimant next requests that we direct the ALJ to determine whether the DIME physician overcame her own opinions by clear and convincing evidence by her statement that if the condition is found to be work-related as initially determined by the ALJ, then her opinion was that the claimant is not at MMI. The claimant requests that we issue an order reversing the order of the ALJ with an instruction that he enter an order determining the claimant is not at MMI because the recommended medical care related to the claimant's left-sided TFCC tears is reasonable, necessary and related to the work injury. We are not persuaded that a reversal or a remand is necessary.
The claimant contends that the, claimant's initial right upper extremity injury which resulted. from her lifting a 2-liter bottle in 2005 cascaded into a series of adverse medical consequences through both upper extremities, necessitating a surgery to correct a left TFCC tear. The claimant argues that the additional surgeries were the result of overuse of her left upper extremity following the claimant's return to work as a grocery store clerk: working one-handed while recovering from a series of three surgeries to her right upper extremity.
As we read the claimant's brief she concedes that in general the opinion of a DIME physician' on causation is binding under § 8-42-107(8) unless overcome by clear and convincing evidence. However, the claimant argues that when the dispute involves a threshold question of whether the claimant sustained any compensable injury arising out of and in the course of her employment the fact that a DIME has been performed before the hearing is inconsequential and the ALJ is not bound by the elevated burden of proof to overcome the DIME physician's opinion under § 8-42-107(8). We are not persuaded that the ALJ applied an incorrect burden of proof in determining that the claimant had failed to meet her burden of proving that the DIME physician's opinion was clearly wrong.
To receive workers' compensation benefits, an injured worker bears the threshold burden of establishing, by a preponderance of the evidence; that he or she has sustained a compensable injury proximately caused by his or her employment. Section 8-41-301(l)(c), C.R.S. 2009; Faulkner v. Indus. Claim Appeals Office, 12 P.3d 844, 846 (Colo. App. 2000) ("Proof of causation is a threshold requirement which an injured employee must establish by a preponderance of the evidence before any compensation is awarded.")
In contrast, litigants bear a higher burden of proof when challenging opinions rendered by a DIME physician. If a DIME physician has rendered an opinion regarding MMI or medical impairment, those opinions must be overcome by clear and convincing evidence. §§ 8-42-107(8)(b)(III),-107(8)(c), C.R.S.; Cordova v. Indus. Claim Appeals Office, 55 P.3d 186, 189 (Colo. App. 2002); Qual-Med, Inc. v. Indus. Claim Appeals Office, 961 P.2d 590, 592 (Colo. App. 1998); see also Leprino Foods Co. v. Indus. Claim Appeals Office, 134 P.3d 475, 482 (Colo. App. 2005) ("DIME physician's opinions concerning MMI and permanent medical impairment are given presumptive effect . . . [and] are binding unless overcome by clear and convincing evidence.").
"Clear and convincing evidence means evidence which is stronger than a mere `preponderance'; it is evidence that is highly probable and free from serious or substantial doubt." Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 414 (Colo. App. 1995). Therefore, the party challenging a DIME physician's conclusion must demonstrate that it is "highly probable" that the DIME impairment rating or MMI finding are incorrect. Qual-Med, 961 P.2d at 592. A party has met the burden of establishing that a DIME impairment rating and diagnosis are incorrect if the claimant has demonstrated that the evidence contradicting the DIME is "unmistakable and free from serious or substantial doubt." Leming v. Indus. Claim Appeals Office, 62 P.3d 1015, 1019 (Colo. App. 2002).
Whether a party has met the burden of overcoming a DIME by clear and convincing evidence "is a question of fact for the ALJ's determination." Metro Moving Storage, 914 P.2d at 414. We must uphold the factual determinations of the ALJ if the decision is supported by substantial evidence in the record. § 8-43-301(8), C.R.S.; Christikv, Coors Transp. Co., 919 P.2d 857, 860 (Colo. App. 1995), aff'd, 933 P.2d 1330 (Colo. 1997).
Contrary to the claimant's contention, the threshold question of whether the claimant sustained any compensable injury, compensability was not at issue here. It was admitted by the employer, who did not dispute that the claimant suffered an injury on April 28, 2005. Rather, the employer contested the nature and extent of the ensuing injuries and argued that some of the claimed conditions were not casually related to the industrial injury.
The claimant, citing Faulkner and Snyder v. Industrial Claim Appeals Office, supra, argues that she must prove the causal nature of her left-sided conditions under a preponderance of the evidence standard. Where, as here, the threshold issue of compensability is not in dispute, a DIME physician's opinions regarding causation will be given presumptive weight. Eller v. Indus. Claim Appeals Office, 224 P.3d 397, 400 (Colo. App. 2009) ("[A]n inquiry into the relatedness of a particular component of a claimant's overall impairment will carry presumptive effect when determined by a DIME," unless the "threshold showing necessary to prove compensability" is at issue.); see also Leprino Foods, 134 P.3d at 482 (a DIME physician's opinion concerning causation will be given presumptive weight because MMI and impairment "inherently require the DIME physician to assess, as a matter of diagnosis, whether the various components of the claimant's medical condition are causally related to the industrial injury.") Citing the employer's admission of liability, the court in Leprino Foods distinguished Faulkner because the disputed issue was the extent of the injury, not "the existence of a compensable injury." Id. at 483. The court therefore held that the ALJ in Leprino Foods properly gave presumptive weight and binding effect to the DIME physician's determination that the claimant's injury "was probably related to the industrial injury." Id,
Here, as in Eller and Leprino Foods, because the employer admitted that the claimant suffered a work-related injury, the issue before the ALJ was the extent of the injury, not compensability. Consequently, in our opinion it was appropriate for the ALJ to give presumptive weight to the DIME physician's determination that the claimant's left-sided conditions were unrelated to the industrial accident. We therefore conclude that the ALJ committed no error in holding the claimant to the higher burden of proof. See Eller, 224 P.3d at 400; Leprino Foods, 134 P.3d at 482-83.
The claimant further argues that the standard of overcoming the opinion of a DIME physician does not apply when the DIME physician defers the causation analysis to another physician, as the claimant contends was done in the present case. The claimant /argues that the DIME physician ultimately deferred to the opinions of Dr. Topper as the more qualified hand surgeon as to the compensable nature of the claimant's injury because she was "neutral" as to that determination.
In her brief the claimant has not cited any specific portions of the transcript to establish this deference by the DIME physician to the opinions of Dr. Topper. Nor do we read the transcript as compelling the conclusion that the DIME physician deferred the issue of causation to Dr. Topper.
The DIME physician acknowledged that she was aware that Dr. Hattem, based on a comment from Dr. Topper, determined that the claimant's left wrist pathology and specifically the TFCC tears was not likely secondary to her work. Tr. (4/20/2010) at 20. The DIME physician agreed that she adopted Dr. Topper's pre-deposition opinion with regard to that issue. Tr. (4/20/2010) at 20. The DIME physician then stated that reading Dr. Topper's deposition did not help at all on the issue of causation because Dr. Topper kept waffling back and forth on the issue. Tr. (4/20/2010) at 20-21. In our view the testimony of the DIME physician contradicts the claimant's allegation that the DIME physician deferred to the opinions of Dr. Topper.
The DIME physician also opined that you "don't lift two liters of milk with your right hand and cause a left handed-left wrist injury." Tr. (4/20/2010) at 21. The DIME physician explained that Dr. Topper stated that the claimant would have been expected to have the condition in that part of her anatomy in her left wrist no matter what and that is why Dr. Topper waffled in his testimony. Tr. (4/20/2010) at 39. We note that Dr. Topper discussed with the claimant the issue of her left wrist and the congenital existence of a long ulna, explaining that no matter what she did in life at this age, she would probably have these same problems. Exhibit I at 92. In any event, whether or not this is an accurate description of Dr. Topper's testimony it suggests that contrary to the claimant's assertion, the DIME physician did not defer to the opinion by Dr. Topper on causation.
Further, the DIME physician stated that in his deposition testimony Dr. Topper had simply waffled back and forth on his opinions concerning causation. Therefore we are not persuaded that the ALJ was compelled to conclude that the DIME physician deferred her opinion on causation to a physician she did not even believe had expressed an unambiguous opinion on causation. Tr. (4/20/2010) at 20-21 35-36 42 51.
Moreover, the claimant argues that the DIME physician "relies completely" upon the unequivocal opinions of Dr. Topper as stated in his letter of May 21, 2010. However, we note}that the DJME physician's report is, dated July 21, 2009 and her testimony was taken on April 2010.; Exhibit 9 Tr. 4/20/10 at 15. We are not persuaded that the ALJ was; compelled to conclude that the DIME physician completely relied upon a report from Dr. Topper when his May 21, 2010 report was not in existence at the time the DIME physician expressed her opinions.
The claimant argues that had the ALJ properly evaluated the issue of the causation of the left-upper extremity by a preponderance of the evidence standard, there would be no question that Dr. Topper's opinions established the compensable nature of the condition. However, the ALJ found that in the deposition of Dr. Topper many aspects of the causality issue were discussed but in the final analysis Dr. Topper responded to the following question and stated:
Q. . . . Without knowing these other activities that she may have engaged in, are you able to quantify or state that it is more likely than not that it was her work related activities that caused the problem?
A. Well, the honest answer is I don't know.
We first note that the quote cited by the ALJ is from Dr. Topper's deposition and is supported by the record. Topper Depo. (3/5/10) at 54-55. In this context we note that the claimant, after the deposition of Dr. Topper was taken on March 5, 2010 secured an additional report from Dr. Topper dated May 21, 2010 in which the doctor stated that it was his opinion that there was a causal relationship between the claimant's work and her current condition of ulnar carpal impaction syndrome for which he recommended surgery. Exhibit 196. However, we also note that Dr. Topper, when asked whether he had an opinion based upon a reasonable degree of medical probability as to whether the claimant's work as a grocery store clerk caused the problem with her left wrist, stated that he did not have an opinion. Topper Depo. (3/5/10) at 44-45.
The opinions expressed by Dr. Topper can be viewed as inconsistent, but the inferences made by the ALJ regarding those opinions are reasonable. 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. Indus. Claim Appeals Office/913 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. Indus. 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 are not persuaded that the ALJ was compelled to determine that Dr. Topper's ultimate opinion was that there was a causal connection between the claimant's work and her left upper extremity conditions. Even if we assumed that Dr. Topper's opinion was that there was such a causal connection we are not persuaded that such an opinion would compel the ALJ to reach the conclusion that the opinion of the DIME physician's opinion on the issue of causation had been overcome.
The claimant next argues that the ALJ erred in determining that the DIME physician remained of the opinion that the claimant had reached MMI for the industrial injury. We are not persuaded that the ALJ committed reversible error.
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). Because the issue is factual in nature, as noted above we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8); C.R.S.; Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra.
The DIME physician did testify that she agreed with Dr. Topper that the surgeries the claimant underwent were a benefit to her and that she needed the TFCC surgery on her left wrist. Tr. (4/20/2010) at 33-34, The DIME physician also testified that if it were found by the ALJ that the TFCC tear on her left wrist was compensable that the claimant would not have reached MMI for the work-related injury Tr. (4/20/2010) at 55. However, we do not agree that such testimony compels the conclusion that the DIME physician's opinion was that there was a causal connection between the industrial injury and the claimant's-left upper extremity conditions and therefore the claimant had not reached MMI.
The claimant points to testimony of the DIME physician in which she was questioned regarding the repetitive lifting activities at work and how that would play a part in the claimant's need for surgery to repair the left TFCC tear. Tr (4/20/2010) at 21. This line of testimony can be read as the DIME physician's agreement that work would play a role in the need for surgery. Further, the DIME physician did testify at one point that she just did not know whether the claimant's work significantly contributed to the TFCC tear in the left wrist and was simply neutral With regard to the causation issue. Tr (4/20/2010) at 22-231 The claimant argues that this testimony of the DIME physician negated, as a matter "of fact and law, the elevated standard by which the opinions of DIME physicians are granted under the statute.
However, the DIME physician also stated that she was unable to state that the TFCC problem the claimant had with her left wrist area was caused by her work injury. The DIME physician stated that "being unable to state causation, then I have to remain with the evaluation I performed on 7-01-09 and have to leave it as it is." Tr. 54-55.
The DIME physician can be viewed as having offered ambiguous or conflicting opinions concerning MMI or impairment. However, there is substantial evidence in the record supporting the ALJ's determination that the DIME physician's opinion remained that the claimant had reached MMI for the industrial injury and that the left wrist problem could not be said to have been caused by the claimant's work injury.
IT IS THEREFORE ORDERED that the ALJ's order dated September 14, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
MARIE E; NIELSEN-HERNANDEZ, COLORADO SPRINGS, CO, (Claimant).
SEDGWICK CLAIMS MANAGEMENT SERVICES INC., Attn: SHARMIE JENSEN, LEXINGTON, KY, (Insurer).
STEVEN U. MULLENS, P.C., Attn: STEVEN U MULLENS, ESQ., COLORADO SPRINGS, CO, (For Claimant).
McCREA BUCK, LLC, Attn: BRUCE B. McCREA, ESQ., DENVER, CO, (For Respondents).