Opinion
W.C. No. 4-685-629.
April 23, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated November 28, 2008 that found the claimant failed to overcome the impairment rating imposed by the Division-sponsored independent medical examination (DIME) and denied medical treatment for his condition after reaching maximum medical improvement. We affirm.
The ALJ's findings of fact are summarized as follows. The claimant sustained a work-related injury in February 2006. The claimant's shoulder pain after the injury resolved and the ALJ was not persuaded that the claimant's shoulder complaints when presenting to Dr. Rook were related to his industrial injury. However, the claimant's condition related to the cervical area of his spine is related to the claimant's work injury. Dr. Wunder performed a DIME, determined that the claimant's low back pain was not related to his injury, and determined that the claimant was not at maximum medical improvement. Dr. Wunder subsequently performed a follow-up DIME and placed the claimant at maximum medical improvement after the claimant underwent a cervical discectomy. Dr. Wunder assigned a 17% whole person impairment rating for the claimant's cervical condition.
Dr. Rook conducted an independent medical examination of the claimant and opined that the claimant is not at maximum medical improvement due to his shoulder symptoms, which Dr. Rook related to the claimant's industrial injury. However, the ALJ found more persuasive Dr. Wunder's determination, which the ALJ found to be implicit in Dr. Wunder's report, that the claimant's shoulder symptomology is not related to the claimant's work injury. The ALJ also found persuasive Dr. Wunder's opinion that the claimant's low back symptomology is not related to the claimant's work injury. The ALJ found that the claimant failed to overcome by clear and convincing evidence Dr. Wunder's determination as to causation and his impairment rating. The ALJ determined that the claimant's request for medical treatment after maximum medical improvement was thus rendered moot.
On appeal, the claimant asserts that the ALJ erred by finding that the claimant had not overcome Dr. Wunder's determination of maximum medical improvement. In support of his contention, the claimant asserts that he presented evidence regarding the relatedness of his shoulder condition to his work injury sufficient to overcome Dr. Wunder's determination that the shoulder condition was not related to the claimant's injury. According to the claimant, Dr. Rook's opinion that the claimant's shoulder condition is related to his work injury, together with inferences that could be drawn from evidence to indicate a lack of measured consideration of the claimant's shoulder condition by Dr. Wunder, demonstrate an abuse of discretion by the ALJ sufficient to overcome Dr. Wunder's determination of maximum medical improvement.
As the claimant recognizes, under § 8-42-107(8)(c), C.R.S. 2008, the DIME physician's finding as to maximum medical improvement and the medical impairment rating is binding unless overcome by "clear and convincing evidence." Clear and convincing evidence has been defined as evidence which demonstrates that it is "highly probable" the DIME physician's rating is incorrect. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998); Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo.App. 1995). Consequently, to overcome the DIME physician's medical impairment rating there must be evidence establishing that the DIME physician's determination is incorrect and this evidence must be unmistakable and free from serious or substantial doubt. DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318 (1980). As noted by the ALJ, the DIME physician's opinion as to causation is subject to the same heightened burden of proof. Findings of Fact, Conclusions of Law, and Order (Order) at 4, ¶ 3. Qual-Med, Inc., v. Industrial Claim Appeals Office, supra.
The question whether the claimant has overcome the DIME by clear and convincing evidence is one of fact for the ALJ's determination. Metro Moving Storage Co. v. Gussert, supra. This is true despite the elevated standard of proof required to overcome a DIME. Irrespective of whether the standard of proof at the administrative adjudicatory level of proceedings is clear and convincing, beyond a reasonable doubt, or merely a preponderance of the evidence, it is solely for the trier of fact to determine the persuasive effect of the evidence and whether the burden of proof has been satisfied. Id., 914 P.2d at 414. Therefore, the standard of review remains whether the ALJ's findings of fact are supported by substantial evidence in the record. Id.; § 8-43-301(8), C.R.S. 2008. 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.
In reaching his decision, the ALJ stated that he had "made credibility determinations, drawn plausible inferences from the record, and resolved essential conflicts in the evidence." The ALJ further noted that "unpersuasive arguable inferences have been implicitly rejected." Order at 5, ¶ 5. Concerning the claimant's shoulder condition, the ALJ found that "[b]y failing to specifically find that Claimant's shoulder symptomology was related to his industrial injury Dr. Wunder implicitly found that it was not part of Claimant's work injury." The ALJ also found Dr. Wunder's opinion regarding causation of the claimant's shoulder condition "based upon the Claimant's medical history available to him" more persuasive than that of Dr. Rook. Order at 3, ¶ 9. The claimant observes that the ALJ did not recite in the aforementioned paragraph that the claimant failed to establish by clear and convincing evidence that it is highly probable that Dr. Wunder's opinion on causation of the claimant's shoulder condition is incorrect. However, we are persuaded that the ALJ's order, taken as a whole and including his finding that the claimant's shoulder condition is not work-related, sufficiently indicates that the ALJ found that the claimant failed to carry his burden regarding causation of his shoulder condition. Order at 3, ¶ 10. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000); Welch v. Denver West Remediation Construction LLC, W. C. No. 4-449-365 (April 27, 2004).
Furthermore, the record supports the ALJ's determination that the DIME physician's opinion as to causation of the claimant's shoulder condition was not overcome by evidence showing that it is highly probable that the opinion is incorrect. See Metro Moving Storage Co. v. Gussert, supra. For example, Dr. Wunder testified in a deposition that the claimant's right shoulder had "underlying degenerative changes" with symptoms that "wax and wane." However, he noted that "for a long period of time following his injection after this injury" the claimant had no "significant findings." Dr. Wunder did not think the claimant has "any residual shoulder problems that could be attributed to this injury." Wunder Depo. at 13. Dr. Greenslade treated the claimant's right shoulder and noted a "good response" to an injection to relieve rotator cuff tendinities. Exhibit 2 at 217. It appears that Dr. Quick had the claimant's care transferred to him from Dr. Greenslade, and he noted that Dr. Greenslade's steroid injection into the claimant's right shoulder produced "resolution of that symptom." Exhibit 2 at 204. It is apparent from the record that the ALJ did not abuse his discretion in finding that the claimant failed to carry his heavy burden to overcome Dr. Wunder's causation opinion concerning the claimant's shoulder.
The claimant also asserts that the ALJ erred by not allowing the corroborative testimony of a witness who could testify that the claimant told physicians about his shoulder and low back complaints. The claimant called as a rebuttal witness a friend of his who had accompanied him to some appointments with treating physicians. The ALJ ruled that the witness could not testify as to whether the claimant complained to the physicians about specific areas of his body on the basis that such testimony was hearsay. Tr. at 59-63. On appeal, the claimant argues that the anticipated corroborative testimony about the claimant's complaints of shoulder and back problems to various physicians is important because the DIME physician relied on the lack of such complaints to doctors in determining that the claimant's shoulder and low back conditions were not causally related to his work injury. We do not agree with the ALJ's characterization of the proffered testimony as hearsay, but conclude that the exclusion of the testimony is, at most, harmless error.
The testimony was being offered to corroborate that the claimant, in fact, placed physicians on notice about his complaints regarding his shoulder and back, rather than to establish his actual physical condition. See CRE 801(c) ("hearsay" is defined as a statement other than one made by the declarant at the hearing, offered in evidence to prove the truth of the matter asserted). Nonetheless, the ALJ's exclusion of the witness's testimony was harmless. See CRE 103(a) (error may not be predicated on the admission of evidence unless a substantial right of the party is affected); Jiron v. Douglas County Schools, W.C. No. 4-681-413 (May 23, 2007).
The claimant characterizes the DIME physician's testimony as relying on a lack of complaints in the medial records to decide that the claimant is not entitled to impairment ratings for his shoulder and low back. However, the DIME physician testified that his opinion that the claimant's low back pain and shoulder condition were not work-related was based on his own examination of the claimant. Tr. at 6. He explained that the claimant did not complain about corresponding pain during his examination of the claimant. Tr. at 6-7, 11, 14. Dr. Wunder went on to explain that the claimant would have been expected to have pain from a low back injury within 72 hours, but he recalled that the claimant did not mention back pain until months after his injury. Tr. at 9. Dr. Wunder noted "no significant findings" regarding the claimant's shoulder "for months" after receiving an injection to treat it and, therefore, did not think any residual shoulder problems were due to the claimant's work injury. Tr. at 13. He noted that complaints about the claimant's shoulder condition were "not reflected on a continuing basis in the medical record after this injury." Tr. at 13. Dr. Wunder discussed specific medical reports, some of which referred to the claimant's complaints about his shoulder. Tr. at 24-33, 35. It is therefore apparent that Dr. Wunder knew of the claimant's complaints regarding his shoulder and back, but that he based his opinion on his own examinations of the claimant, together with his review of the claimant's medical history. Moreover, the ALJ was not persuaded by medical reports that either the claimant's shoulder complaints when he visited Dr. Rook or his low back symptoms were related to his work injury. Order at 2, ¶¶ 1,4.
We are not persuaded that the ALJ erred in determining that the claimant failed to overcome the DIME physician's opinions under the circumstances.
IT IS THEREFORE ORDERED that the ALJ's order dated November 28, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
JOSE L. OROZCO, COLO SPRINGS, CO, (Claimant), BUILDING MATERIALS HOLDING CORP, Attn: CHRISTINE WEEKES, BOISE, ID, (Employer).
GALLAGHER BASSETT SERVICES, INC., Attn: SUZANNE LIMPPO, ENGLEWOOD, CO, (Insurer), FRANKLIN D. AZAR ASSOCIATES, P.C., Attn: JOHN M. CONNELL, ESQ., AURORA, CO, (For Claimant).
TREECE, ALFREY, MUSAT BOSWORTH, P.C., Attn: MATTHEW C. HAILEY, ESQ., DENVER, CO, (For Respondents).
BUILDING MATERIALS HOLDING CORPORATION, Attn: EVIONNE SILVER, COLORADO SPRINGS, CO, (Other Party).