Opinion
W.C. No. 4-742-984.
November 12, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated June 21, 2010 that denied his request for additional medical treatment and another MRI of his right wrist, as well as his claim for permanent partial disability benefits beyond an admitted medical impairment of seven percent of his right leg. We affirm.
Several of the ALJ's findings of fact are summarized as follows. The claimant felt pain in his thigh while stepping down from a forklift on November 14, 2007. Notes from his initial treatment do not reflect wrist complaints or injury. The next day the claimant's treating physician noted the claimant has bad rheumatoid arthritis in multiple joints and when the claimant tried to get out of bed that morning he felt a strange pop in his wrist. Later in November the claimant advised his treating physician he had injured his wrist on November 14 when he pulled himself up from the floor. An MRI of the claimant's right hand taken on January 24, 2008 had a large motion artifact. Although the claimant testified he had no problems with his right wrist prior to November 14, 2007, he was seen for right wrist pain on October 5, 2006 and diagnosed with rheumatoid arthritis. The claimant was injured in a motor vehicle accident on March 25, 2008, which totaled his car. The claimant reported low back pain after his car accident. However, the claimant later reported to a doctor that he attributed all of his back pain to his car accident. An orthopedic surgeon opined that the claimant's low back problems were unrelated to his accident at work.
Dr. Hattem saw the claimant in order to determine maximum medical improvement (MMI) and impairment. He determined that the claimant's right wrist complaints and low back pain were not related to the work incident on November 14, 2007. Dr. Hattem determined that the claimant was at MMI and sustained a seven percent impairment of his right leg. The respondents filed a corresponding final admission of liability. The claimant objected to the final admission of liability and obtained a Division-sponsored independent medical examination with Dr. Wakeshima, who issued a report and testified at two depositions.
Dr. Wakeshima concluded in his report that the claimant's low back complaints were not related to the claimant's work incident, but thought the claimant's right wrist pain was due to the work injury. Dr. Wakeshima found that the claimant was at MMI for his right knee, but that the claimant needed an MRI to rule out a hamstring tear and a (triangular fibrocartilage complex) tear in his right wrist. Another doctor identified osteoarthrosis and a tear in an MRI of the claimant's right wrist. An MRI of the claimant's pelvis was interpreted as normal except for an old fracture.
At his first deposition Dr. Wakeshima concluded that the claimant's failure to report wrist pain on the date of his work incident and his subsequent report of wrist pain while trying to get out of bed made it more probable than not that his wrist problems were unrelated to his work incident. However, Dr. Wakeshima went on to suggest a consultation with Dr. Topper, a hand specialist, for clarification of the work-relatedness of the claimant's wrist condition. He suggested that an expert may be able to determine if a wrist tear occurred only after the January 2008 MRI. Dr. Wakeshima concluded that if an expert could not determine if a tear existed in January 2008 it was more probable that the tear occurred when the claimant tried to get out of bed.
Dr. Topper examined the claimant and testified that regardless of any MRI findings, if the claimant had an acute tear he would have expected the claimant to experience pain contemporaneous with the event causing such a tear. Dr. Topper opined that it was more probable than not that in light of the claimant's rheumatoid arthritic wrist being subject to tears, the claimant exacerbated his arthritis when pushing himself out of bed. Moreover, Dr. Topper noted that neither MRI of the claimant's right wrist confirmed any tear. Dr. Topper concluded that the claimant's wrist injury was not caused by his work injury.
Dr. Wakeshima reviewed Dr. Topper's deposition testimony and testified that it was more likely that the claimant did not injure his right wrist in the work injury, but medically probable he injured his wrist getting out of bed. Dr. Wakeshima determined that as determined by Dr. Hattem, the claimant was at MMI for his work injury. He also opined that the claimant sustained a seven percent lower extremity impairment.
Dr. Hall, on the other hand, opined that the claimant was not at MMI without a coil MRI of his wrist and that the claimant's low back pain was related to his work incident. However, the ALJ found that the claimant failed to prove by clear and convincing evidence that Dr. Wakeshima's determinations of MMI and causation were incorrect. The ALJ also found that the claimant failed to establish by a preponderance of the evidence that he was entitled to an impairment other than seven percent of the lower extremity.
The ALJ therefore denied the claimant's requests for an additional MRI of his right wrist and for low back treatment. In addition, the ALJ denied the claimant's request for permanent partial disability benefits beyond seven percent of the right leg.
On appeal the claimant reviews portions of Dr. Wakeshima's report and testimony in support of his contention that inconsistencies in the doctor's testimony and ambiguities concerning the claimant's wrist condition belie Dr. Wakeshima's conclusion that the claimant was at MMI. The claimant asserts that the ALJ failed to resolve inconsistencies in Dr. Wakeshima's testimony and merely relied on the doctor's conclusive statements concerning the claimant's wrist condition as it relates to MMI, without analyzing the claimant's "hard and certain evidence" rebutting Dr. Wakeshima's conclusions. The claimant's evidence does not compel the conclusion that the ALJ erred as a matter of law by crediting opposing evidence. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). We find no basis for disturbing the ALJ's decision.
The ALJ reviewed the historic course of Dr. Wakeshima's testimony and found that the doctor "unambiguously determined that claimant's wrist symptoms are not causally related to the incident of November 14, 2007." Findings of Fact, Conclusions of Law, and Order at 4, ¶ 19. Dr. Wakeshima eventually testified to the effect that "it's more likely than not" that the claimant's wrist problems were "not work-related," but "medically probable" that the claimant injured his wrist getting out of bed. Wakeshima Depo. (11/4/09) at 8-9, 11-12. The ALJ relied on Dr. Wakeshima's opinions and nothing more is required to support his corresponding findings and conclusions. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000) (ALJ must make specific findings only as to evidence found persuasive and determinative and is not required to address evidence not found persuasive). Furthermore, assertions that the doctor's opinions are erroneous or inconsistent goes to the weight that should be afforded to that evidence and does not affect the ALJ's ability to rely upon it. See Industrial Commission v. Albo, 167 Colo. 467, 447 P.2d 1006 (1968).
Moreover, where, as here, physicians offer different conclusions regarding the claimant's condition, the trier of fact resolves such conflicts, we are not at liberty to disturb his resolution of conflicting evidence. Resurrection Mining Co. v. Roberts, 127 Colo. 559, 562, 259 P.2d 275, 277 (1953). This is not a case in which the undisputed evidence requires a finding that the claimant was not at MMI. See Reynolds v. Industrial Claim Appeals Office, 794 P.2d 1080, 1083 (Colo. App. 1990) (evidence fails to support finding of MMI where claimant suffers undisputed change in condition and is recommended for surgery).
The question of whether a party has overcome the DIME by clear and convincing evidence is one of fact for the ALJ's determination. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). The standard of review is whether the ALJ's findings of fact are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S; Metro Moving Storage Co. v. Gussert, supra. 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.
Moreover, 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 Sullivan v. Industrial 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). The ALJ may accept all, part, or none of the testimony of a medical expert. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). See also, Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo. App. 1992) (ALJ may credit one medical opinion to the exclusion of a contrary medical opinion). Given the ALJ's consideration of the evidence we find no basis for disturbing his determination that the claimant failed to establish that he was not at MMI or any entitlement to additional impairment ratings.
IT IS THEREFORE ORDERED that the ALJ's order dated June 21, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________
John D. Baird
______________________________
Curt Kriksciun
JAMES G. ANDERSON, 11 THAYER ROAD, COLORADO SPRINGS, CO, (Claimant).
DANA KEPNER COMPANY, INC., DENVER, CO, (Employer).
TRAVELERS INDEMNITY COMPANY, Attn: MS URSULA GORKIN, DENVER, CO, (Insurer).
MCDIVITT LAW FIRM, PC, Attn: KIRK WHITEHEAD, ESQ., COLORADO SPRINGS, CO,(For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: ERIC J. POLLART, ESQ., GREENWOOD VILLAGE, CO,(For Respondents).