Opinion
W.C. No. 4-712-812.
November 21, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated May 28, 2008, upholding the opinion of a Division-sponsored independent medical examination (DIME) physician that the claimant had reached maximum medical improvement (MMI). We affirm.
Several of the ALJ's findings are summarized as follows. The claimant sustained an industrial injury to his lower back. Dr. Bloch treated the claimant for back strain and placed him at MMI on December 15, 2006. X-rays of the claimant's back were negative. The claimant returned to Dr. Bloch the following month and Dr. Bloch imposed work restrictions. An MRI of the claimant's lumbar spine was normal except for a cyst. The claimant sought treatment from his personal physician, Dr. Pettine. The claimant described having continuing back pain that radiated into his legs. Dr. Aschberger conducted EMG testing on the claimant on April 16, 2007. The test results were normal. Dr. Aschberger recommended home exercises and additional medications. Dr. Bloch again placed the claimant at MMI on April 18, 2007 with no restrictions or permanent impairment.
The claimant continued to be treated by Dr. Pettine. A discogram of the claimant's lumbar spine was normal. Dr. Pettine performed a facet injection to determine the origin of the claimant's pain. The claimant obtained relief, but his symptoms returned, which led Dr. Pettine to state that the claimant's symptoms were consistent with facet pain. He administered another facet injection. Dr. Fall conducted a DIME on October 25, 2007. She determined that the claimant was properly placed at MMI on April 18, 2007 because no medical treatment would provide any additional benefit. She further determined that the claimant's symptoms were "likely related" to deconditioning and poor muscular strength and endurance, and contributed to by smoking. She recommended an exercise program.
The ALJ compared the findings of Dr. Fall, Dr. Aschberger, and Dr. Pettine. He found that Dr. Pettine's "contrary diagnosis" did not demonstrate that it was highly probable that Dr. Fall's determination was incorrect. The ALJ therefore determined that the claimant failed to overcome by clear and convincing evidence Dr. Fall's determination of MMI.
The claimant asserts on appeal that the ALJ erred in determining that he failed to overcome the DIME physician's determination of MMI when "[t]he evidence is clear and convincing that Claimant sustained a work related injury to his left L5-S1 facet joint." Claimant's Brief at 4. In support of his contention, the claimant refers to the facet injections administered by his personal physician and notes that the injections are recognized as an acceptable form of treatment under the Division of Workers' Compensation's Medical Treatment Guidelines. The respondents assert that the claimant effectively waived his ability to argue that the ALJ erred by not addressing the medical treatment guidelines and facet arthropathy. However, the claimant's position statement asserts an injury to the claimant's left L5-S1 facet joint and therapeutic injections under the medical treatment guidelines. We therefore consider whether the ALJ erred by upholding the DIME physician's opinion that the claimant had reached MMI, notwithstanding the evidence regarding treatment for facet pathology.
The evidence in this matter consists of the claimant's testimony at hearing, together with various medical reports. The claimant relied on the medical reports of his personal physician, Dr. Pettine, to support his assertion that he had overcome the findings of the DIME physician as to the issue of MMI. In both his brief and his position statement, the claimant refers to Exhibit 4, which consists of Dr. Pettine's treatment notes. Dr. Pettine administered a facet arthrogram and a facet injection in order "[t]o attempt to ascertain how much of the patient's back pain is facet verses (sic) discogenic." Exhibit 4 at 1. Dr. Pettine previously made the following comments regarding the claimant's back condition: "All his discs appear normal. His pain is on the left side of his lumbar spine, worse with extension somewhat consistent with facet pain. One would wonder if it is not his facet." Exhibit 4 at 4. It therefore appears from Dr. Pettine's reports that his opinion as to the cause of the claimant's pain symptoms was less than certain. Cf. Schreiber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993) (issue becomes one of law if reasonable minds can draw but one inference). The report of the DIME physician, Dr. Fall, includes a reference to a facet injection administered by Dr. Pettine and, also, to a set of normal discograms. Exhibit A at 4. According to her report, Dr. Fall's physical examination of the claimant included the consideration of the claimant's facet joints: "Facet loading did not cause focal complaints of pain. There is no focal tenderness corresponding to any facet joint." Exhibit A at 5.
The ALJ made corresponding findings. Findings of Fact, Conclusions of Law, and Order (Order) at 3, ¶ 12. The ALJ noted that Dr. Pettine thought that the claimant's symptoms were consistent with facet pain. Order at 3, ¶ 11. However, the ALJ credited the opinion of Dr. Fall that the claimant had a muscular strain likely related to deconditioning and smoking. Order at 3, ¶ 13. The ALJ also found that both Dr. Fall and Dr. Aschberger recommended an exercise program to alleviate the claimant's symptoms. Thus, the ALJ considered Dr. Pettine's diagnosis to be a mere "difference of medical opinion." Order at 4, ¶ 14. The ALJ also credited the negative results of several diagnostic tests in finding that the claimant failed to overcome Dr. Fall's determination. Order at 4, ¶ 14.
The DIME physician's opinion is entitled to special weight on the issues of MMI and permanent partial disability. § 8-42-107(8)(c), C.R.S. 2008. 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). 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 ALJ credited the DIME physician's diagnosis of "mild thoracolumbar muscle strain" and her corresponding opinion that no medical treatment would provide any additional benefit to the claimant. Order at 3, ¶ 13. We are not persuaded that the ALJ erred in determining that the claimant failed to overcome the DIME physician's finding of MMI. Whether a party has overcome the opinion of a DIME physician as to MMI is generally a question of fact for the ALJ. Postlewait v. Midwest Barricade, 905 P.2d 21(Colo.App. 1995); Magnetic Engineering, Inc. v. Industrial Claim Appeals Office 5 P.3d 385 (Colo.App. 2000). The clear and convincing standard set forth in § 8-42-107(8)(b) is satisfied by a showing that the truth of a contention is highly probable. Where, as here, the medical evidence is subject to conflicting inferences, the ALJ is the sole arbiter of the conflicting medical evidence, and the ALJ's findings are binding on review if supported by substantial evidence and plausible inferences drawn from the record. See Askew v. Sears Roebuck Co., 914 P.2d 416 (Colo.App. 1995).
Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Moreover, the fact that alternative findings or inferences are possible affords no basis for appellate relief. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). It is only if the facts are undisputed and reasonable minds could draw but one inference that such an issue becomes a matter of law. See Schreiber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993). It appears from the record that the ALJ was not necessarily compelled to find that the claimant overcame the DIME physician's finding of MMI.
IT IS THEREFORE ORDERED that the ALJ's order dated May 28, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ John D. Baird
____________________ Curt Kriksciun
THOMAS OATES, LOVELAND, CO, (Claimant).
VORTEX INDUSTRIES, DENVER, CO, (Employer).
UNITED STATES FIDELITY AND GUARANTY, Attn: AVIZENT FRANK GATES, C/O: JAMIE TARIN, PHOENIX, AZ, (Insurer).
RING ASSOCIATES, PC, Attn: JESS M PEREZ, ESQ, FORT COLLINS, CO, (For Claimant).
RITSEMA LYON — DENVER, Attn: MICHAEL PERALES, ESQ., DENVER, CO, (For Respondents).