Opinion
W.C. No. 4-421-048.
January 8, 2007.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) dated September 11, 2006, that re-opened the claim and ordered the respondents to pay medical benefits and temporary disability benefits. We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant suffered an admitted work related injury on May 3, 1999. On October 30, 2001 Dr. Reusswig placed the claimant at maximum medical improvement (MMI) and rated the claimant's impairment at 78 percent of the left upper extremity. The respondents filed an admission on August 5, 2002.
The claimant filed a Petition to Re-open, dated September 30, 2005 based on allegations of changed medical condition, error and mistake, with attached medical reports from Dr. Janssen and Dr. Reusswig. The ALJ found that the claimant's condition has worsened and/or there was a mistake in not diagnosing the need for spinal surgery since the original date of MMI, October 30, 2001. At that time his medical providers had not diagnosed his need for spinal surgery recommended by Dr. Janssen, which the ALJ found related to the original injury. The claimant suffered increased pain levels occasioned by the failure of a spinal stimulator and the spread of his chronic regional pain syndrome (CRPS) or reflex sympathetic dystrophy (RSD). The ALJ found that the claimant's condition worsened after he reached MMI. and the failure of the claimant's physicians to investigate and discover a large disc herniation at the C4-5 level constituted an error or mistake.
The respondents' first contend that the ALJ erred as a matter of law by failing to determine whether the claimant overcame the DIME physician's findings by clear and convincing evidence. We disagree.
We agree with the respondents that in general § 8-42-107(8), C.R.S. 2006, requires that a DIME physician's opinions concerning MMI and permanent medical impairment be given presumptive effect. Both determinations 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. Therefore, a DIME physician's determinations concerning causation are generally binding unless overcome by clear and convincing evidence. Cordova v. Indus. Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002); Leprino Foods Co. v. Industrial Claim Appeals Office of State, 134 P.3d 475, (Colo.App. 2005).
The respondents are correct that Dr. Jacobs performed a Division-sponsored independent medical examination on May 13, 2002 and did not identify a neck injury. Exhibit R. However, the court of appeals has made a distinction when the matter involves the reopening provisions of § 8-43-303(1) C.R.S. 2006.
The case of Berg v. Industrial Claim Appeals Office, 128 P.3d 270, (Colo.App. 2005), involved a reopening, specifically an alleged mistake concerning an uncontested DIME physician's finding of MMI. The court rejected our analysis that allowing the reopening would invite litigation on the issue of MMI by subjecting a DIME physician's determination of MMI to collateral attack under a diminished burden of proof. The Panel had reasoned that if § 8-43-303 were read to allow a claimant to wait until after a claim closed before challenging a DIME on the issue of MMI, the claimant would then be able to overcome the conclusive effect of the DIME by presenting only a preponderance of evidence that the DIME physician "mistakenly" found the claimant at MMI. In light of the decision in Berg the claimant was not obligated to overcome the DIME physician's finding by clear and convincing evidence.
Although Berg involved the issue of MMI and not causation this is not in our opinion a material difference. In Berg the court noted that MMI is also considered a matter of diagnosis. The court noted that in the nature of things, there are bound to be many occasions when even the most thorough and skillful diagnosis misses some hidden compensable condition and the claimant should not be penalized in such circumstances. In the present case the ALJ in making findings regarding reopening found that after the original MMI date Dr. Janssen investigated and discovered herniated discs in the claimant's cervical spin. Findings of Fact, Conclusions of Law, and Order at 3, ¶ 7.
In Berg, the court further noted that because the power to reopen is discretionary, there is an inherent protection against improper collateral attacks on a DIME determination. If a claimant files a petition to reopen in an attempt to circumvent the DIME process and gain the advantage of a lower burden of proof, the ALJ has authority to deny it. Applying these principles here, we believe Berg is controlling and therefore perceive no error in the ALJ's order regarding the evidentiary standard of proof.
The ALJ did not specifically address the issue of the opinion of the DIME physician. However, the ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law. It is sufficient for the ALJ to enter findings concerning the evidence he considers dispositive of the issues, and evidence and inferences inconsistent with the order are presumed to have been rejected. Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Further, the ALJ is presumed to have considered and applied the relevant legal principles. Shafer Commercial Seating, Inc. v. Industrial Claim Appeals Office, 85 P.3d 619 (Colo.App. 2003).
The respondents next contend that the ALJ's finding of relatedness regarding the claimant's cervical neck problems are not supported by substantial evidence. We disagree.
Because these issues are 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. 2006. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999). In particular, we note that the weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). To the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
The respondents' assertion notwithstanding, Dr. Janssen's testimony fully supports the ALJ's findings and the conclusion that the claimant's cervical condition is causally related to the admitted injury. As the ALJ noted Dr. Janssen expressed the opinion on multiple occasions that the claimant's need for spinal surgery related to his admitted injury. Findings of Fact, Conclusions of Law, and Order at 9, ¶ 36. Dr. Janssen expressed the opinion in his report of May 12, 2005 that the problems with the spine relate back to his initial traumatic injury. Dr. Janssen Deposition, Exhibit 14. Dr. Janssen also testified regarding the reasons he stated that the claimant's underlying problems related back to the initial traumatic injury. Dr. Janssen Depo at 24. The ALJ adopted Dr. Janssen's view as the surgeon authorized to treat the claimant finding that it was a reasonable medical conclusion that the large cervical disc herniation had caused radiculopathy, which contributed to the pain in the claimant arm and that the claimant's arm pain resulted from the admitted industrial injury.
The respondents next argues that that the ALJ erred as a matter of law in failing to apply § 8-41-206, C.R.S. 2006 and so find that the claimant's cervical neck problems were conclusively not due to the industrial injury. We disagree.
The ALJ addressed the issue of § 8-41-206 in several sections of his order. The ALJ found that the respondents raised the issue of the "statute of limitations" for the first time in their answer brief and had not raised the issue in either of the two days the hearing was held on or at any time beforehand, including the Case Information Sheet. The ALJ found the Claimant had no opportunity to defend against this affirmative defense, other then by argument made in the reply brief. Findings of Fact, Conclusions of Law, and Order at 6, ¶ 19. Therefore, the ALJ determined that the respondents had failed to sustain their burden of proof on the affirmative defense of statute of limitations because they presented no evidence or argument at hearing on the affirmative defense and indeed had not even mentioned it. Consequently the ALJ found that the respondents had waived the defense through their inaction. Findings of Fact, Conclusions of Law, and Order at 17, ¶ b.
Initially, we note that § 8-41-206 is a rule of evidence, not a statute of limitations. Ricks v. Industrial Claim Appeals Office, 809 P.2d 1118 (Colo.App. 1991); Brown v. Stress Con Corp. W. C. No. 4-278-440 (February 2, 1998). Section 8-41-206 precludes the ALJ from finding a causal connection between an injury and a "disability" when the "disability" does not begin within five years of the injury. City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967). However, we analogize the defense available under § 8-41-206 to the affirmative defense of the statute of limitations, which can serve to bar a claim. See Stubbs v. Kersting v. Industrial Commission, 39 Colo. App. 297, 567 P.2d 394 (1977) (statute of limitations for filing claim is not jurisdictional and may be waived if not timely raised).
The respondents' argument under § 8-41-206 was not raised until the filing of their post-hearing answer brief dated August 24, 2006, well after the evidence was closed. The response to application for hearing did not list § 8-41-206. We are not convinced by the respondents' argument that listing in the response the term "relatedness" placed the claimant on notice of the defense, particularly in the circumstances of this case where the issue of the medical causation of the claimant's cervical neck problems was in controversy. Thus, we conclude that the ALJ did not error in finding the argument was waived.
IT IS THEREFORE ORDERED that the ALJ's order dated September 11, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________
John D. Baird
______________________________
Thomas Schrant
Mark Phillips, 11330 West Virginia Ave., Lakewood, CO, Union Power, 725 Tower Road, Aurora, CO, Continental Casualty Company, Vicky Edgar, P.O. Box 5408, Denver, CO, CNA, Mary Schneider, P.O. Box 4049, Portland, OR, Joseph M. Goldhammer, Esq., 1563 Gaylord Street, Denver, CO, (For Claimant)
David J. Dworkin, Esq., 3900 E. Mexico Ave., Suite 1300, Denver, CO, (For Respondents)