Opinion
W.C. No. 4-311-391
April 28, 1999.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) which determined the claimant is not at maximum medical improvement (MMI), and required the respondents to provide additional medical benefits. We affirm.
On September 21, 1996, the claimant suffered a compensable left hand injury when his gloved hand was pulled into a conveyor belt. Dr. Mozer diagnosed the claimant with probable Post Traumatic Stress Disorder (PTSD) secondary to the industrial injury.
The claimant underwent a psychiatric examination by Dr. Kleinman. Dr. Kleinman opined that the claimant demonstrated no psychiatric disorder and that there was no causal relationship between the industrial injury and the claimant's psychiatric condition. Therefore, Dr. Kleinman disputed the diagnosis of PTSD.
Dr. Craig performed a Division-sponsored independent medical examination (IME) on the issues of MMI and permanent impairment. Dr. Craig opined that the claimant reached MMI for the left hand injury. However, he agreed with Dr. Mozer's diagnosis of PTSD and opined that the claimant is not at MMI for the PTSD.
Crediting the opinions of Dr. Craig and Dr. Mozer, the ALJ found that the claimant sustained compensable PTSD. The ALJ also found the respondents failed to overcome Dr. Craig's opinion that the claimant is not at MMI for the PTSD, and therefore, the ALJ ordered the respondents to provide additional medical treatment to cure or relieve the effects of the PTSD.
I.
On review the respondents first contend the ALJ erroneously shifted the burden of proof by requiring them to overcome Dr. Craig's opinion on the cause of the PTSD by "clear and convincing evidence." The respondents argue that it was the claimant's burden to prove his entitlement to benefits, and therefore, the ALJ should have required the claimant to prove a causal connection between the injury and the PTSD by a preponderance of the evidence.
The respondents recognize that a similar argument was rejected in Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998), where the court held that the IME physician's opinion on the cause of a claimant's disability is an inherent part of the diagnostic assessment which comprises the IME process of rating permanent medical impairment. See also Egan v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA0821, November 13, 1998) (treating physician's impairment rating includes determination on cause of impairment). Accordingly, the court concluded that where the respondents dispute the IME physician's opinion concerning the cause of impairment the respondents must overcome the IME physician's opinion on causation by "clear and convincing evidence." However, the respondents contend that Qual-Med was wrongly decided.
The respondents' arguments notwithstanding, we are bound by published opinions from the Court of Appeals. C.A.R. 35(f). Therefore, we must follow the holding in Qual-Med, Inc. v. Industrial Claim Appeals Office, supra, to the extent it is applicable .
Furthermore, we have previously held that § 8-40-201(11.5), C.R.S. 1998, inherently requires the IME physician to make judgments concerning the cause or causes of a claimant's need for treatment. Cordova v. United Parcel Service, W.C. No. 4-165-196 (May 9, 1997); Fields v. TAD Temporaries, W.C. No. 4-185-877, (September 7, 1995). We have also concluded that the provisions of § 8-42-107(8)(b), C.R.S. 1998, concerning the determination of MMI reflect a legislative intent that ALJs defer to an IME physician's opinion concerning the cause of the need for additional treatment, unless the opinion is overcome by clear and convincing evidence at a hearing See also Lissauer v. Arapahoe House, W.C. No. 4-208-121 (November 26, 1997) , aff'd., Arapahoe House v. Industrial Claim Appeals Office (Colo.App. No. 97CA2132, July 9, 1998) (not selected for publication); Chestnut v. University of Colorado-Boulder, W.C. No. 4-255-498 (December 13, 1996).
Expressly relying on Qual-Med, Inc., the Court of Appeals has upheld our conclusion that the IME physician's opinion on the cause of the claimant's condition is inherent in the IME physician's determination of MMI. Pinkard v. Jefferson County School District R-1, W.C. No. 4-174-623 (March 18, 1998), aff'd., Jefferson County School District R-1 (Colo.App. No. 98CA0671, February 4, 1999) (not selected for publication). The respondents' arguments to the contrary are not persuasive. Therefore, we adhere to our prior conclusion that the IME physician's opinion concerning the cause of the claimant's need for further treatment is binding unless overcome by "clear and convincing evidence."
II.
Alternatively, the respondents contend that Dr. Kleinman's testimony is "clear and convincing evidence" to overcome Dr. Craig's opinion on the cause of the claimant's PTSD. The respondents also argue that Dr. Craig did not correctly apply the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides). They contend that, contrary to the AMA Guides, Dr. Craig applied the criteria in DSM-IV instead of DSM-III-R to find that the claimant suffers from PTSD. Therefore, they argue that the ALJ had no discretion but to find that they overcame Dr. Craig's opinion on the cause of the PTSD. Further, the respondents contend that the ALJ's findings of fact are insufficient to permit appellate review. We disagree.
"Clear and convincing evidence" is evidence which proves that it is "highly probable" the IME physician's opinion is incorrect. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Whether the respondents sustained their burden of proof is a question of fact for resolution by the ALJ, and consequently, we must uphold the ALJ's determinations if supported by substantial evidence in the record. Qual-Med, Inc. v. Industrial Claim Appeals Office, supra.
Under the substantial evidence standard the ALJ's credibility determinations are binding, except in an extreme situation where the credited testimony is rebutted by such hard, certain evidence that it would be an error as a matter of law to believe the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). Furthermore, where the record contains conflicting medical evidence, the ALJ is free to credit one medical opinion to the exclusion of a contrary medical opinion. Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992).
Admittedly, § 8-42-107(8)(c), C.R.S. 1998, requires the IME physician to rate medical impairment in accordance with the AMA Guides. However, in view of Dr. Craig's determination that the claimant is not at MMI, the ALJ determined it was premature to consider the issue of permanent partial disability. ( See Order III-5). It follows, that the absence of specific findings concerning whether Dr. Craig correctly applied the AMA Guides to rate the claimant's left hand impairment does not render the order insufficient to permit appellate review.
We also note that the claimant did not present any evidence concerning the AMA Guide requirements for diagnosing a psychological disability. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995) (AMA Guides not submitted to ALJ will not be considered on appeal). Further, Dr. Kleinman did not indicate whether he relied on DSM III to find that the claimant did not meet the criteria for a diagnosis of PTSD, and the respondents relied on DSM IV and not DSM III in asking Dr. Kleinman whether the claimant met the criteria for other psychological disorders. (Kleinman depo. pp. 25, 26). Therefore, the record does not compel the conclusion that Dr. Craig erred insofar as he relied on DSM IV instead of DSM III to assess the claimant's psychological injury.
In any case, we have previously held that an IME physician's deviation from protocols of the AMA Guides does not require the ALJ to find that the physician's opinion is overcome by clear and convincing evidence. Rivale v. Beta Metals, Inc., W.C. No. 4-265-360 (April 16, 1998), aff'd., Rivale v. Industrial Claim Appeals Office, (Colo.App. 98CA0858, January 28, 1999) (not selected for publication) ; Martin v. HBE Corporation, W.C. No. 4-307-916 (November 13, 1998) ; Sutton v. Alpen Construction, W.C. No. 4-225-415 (April 1, 1997) , aff'd, Sutton v. Industrial Claim Appeals Office (Colo.App. No. 97CA0711, November 13, 1997) (not selected for publication). Rather, proof of deviation must be considered in the context of all the evidence when the ALJ makes the ultimate determination of whether the IME's opinion has been overcome by clear and convincing evidence. E.g. Juarez v. Arapahoe Associates, Ltd., W.C. No. 4-122-705 (May 10, 1996); Aguirre v. American Linen, W.C. No. 4-132-021 (March 14, 1994).
Applying these principles here, we find no basis for concluding that the ALJ erred in crediting Dr. Craig's opinion on the cause of the claimant's PTSD. Dr. Craig recognized that DSM IV and DSM III contained different criteria to diagnose PTSD. (Craig depo. p. 15). Dr. Craig testified that under DSM III a diagnosis of PTSD requires a "precipitating event" which is "outside the range of usual human experience" and DSM IV focuses on whether the claimant has experienced a traumatic event where he "witnesses or was confronted with an event that involved actual or threatened death or serious injury or threat to the physical integrity of themselves or others." (Craig depo p. 15). Dr. Craig opined that the claimant met the criteria for PTSD under both DSM III and DSM IV. Specifically, Dr. Craig stated that although finger injuries may be common, it was outside the range of usual human experience to have a hand grabbed by a conveyor belt. (Craig depo. p. 12).
Moreover, Dr. Craig's opinions are supported by Dr. Mozer's report dated February 14, 1997. Therefore, we cannot say that the contrary opinions of Dr. Kleinman necessarily constitute hard and certain evidence overcoming Dr. Craig's opinion concerning the nature and cause of the claimant's psychological condition.
The respondents remaining arguments have been considered and are not persuasive.
IT IS THEREFORE ORDERED that the ALJ's order dated April 6, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed APRIL 28, 1999 the following parties:
Joseph Walker, 1380 Moline St., #104, Aurora, CO 80010
Katie Wagner, Interim Personnel, 441 Wadsworth Blvd., #102, Lakewood, CO 80226
Insurance Company of the State of Pennsylvania, Sandy Parrott, Claims Administrator, Specialty Risk Services, P.O. Box 219024, Dallas, TX 75221
Peter H. McGuire, Esq., 1325 S. Colorado Blvd., #405, Denver, CO 80222 (For Claimant)
James R. Clifton, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: AP