Opinion
W.C. No. 4-720-558.
April 27, 2011.
FINAL ORDER
The claimant seeks review of a supplemental order of Administrative Law Judge Friend (ALJ) dated October 5, 2011 that denied the claimant's requests for permanent partial disability benefits and for medical maintenance benefits." We affirm.
This matter proceeded to hearing to determine whether the claimant was entitled to permanent partial disability benefits in accordance with the opinion of the Division-sponsored independent medical examination (DIME) physician and whether the claimant should receive, bathroom modifications as a medical benefit after reaching maximum medical improvement. The ALJ first issued an order, in May 2010 in which he determined that the respondents had not overcome the DIME physician's impairment rating and awarded the claimant permanent partial disability benefits, accordingly. However, the ALJ denied the medical benefit sought by the claimant. The ALJ noted that the DIME physician's opinion was ambiguous as to the extent of the claimant's permanent impairment. He determined that three physicians, who opined that the claimant had no permanent impairment from her injury and based their opinions on what they considered to be inconsistent reporting and testimony by the claimant, were more persuasive than the opinions of the DIME physician and another physician. However, the ALJ did not consider it highly likely that the DIME physician's opinion had been overcome by clear and convincing evidence. The ALJ noted that the matter had been heard by another ALJ, but that he had reviewed and considered the evidence and position statements of the parties, including the hearing transcripts.
Only the respondents appealed the May 2010 decision. They argued that the claimant's inconsistent testimony about her medical condition, together with the opinions of three physicians and the DIME physician's equivocation in rendering his opinion, supported a determination that they had overcome the DIME physician's opinion as to the claimant's permanent impairment The ALJ noted that the claimant failed to file a brief in opposition to the respondents' petition to review and issued the supplemental order now before us. See § 8-43-301(5), C.R.S. (ALJ may issue supplemental order limited to matters raised in petition to review). The ALJ decided that the opinions of the three physicians to the effect that the claimant' had not sustained any permanent impairment from her injury made it highly likely that the DIME physician's opinion was incorrect.
In support of his conclusion the ALJ reiterated almost all of the findings of fact from his original order, but found it was highly likely that the DIME physician's opinion was incorrect. Several of the ALJ's findings are summarized as follows. The claimant sustained a compensable injury on January 23, 2007 when she slipped on ice. The claimant experienced low back pain. The claimant's compensable injury aggravated her pre-existing condition. The claimant first had low back pain in 1985 and had a herniated disk at the L4-L5 level. The claimant testified she had no low back problems from 1985 through 1999; however, medical rccords indicated that the claimant complained of back pain in 1999, 2001 and 2002. The ALJ rejected the claimant's contention that she was pain-free between 2003 and 2007. The claimant had a prescription for Vicodin and the ALJ rejected the claimant's assertions that her husband was taking the drug instead of her. The ALJ found that the claimant consumed significant amounts of Vicodin prior to her compensable injury in 2007. Drs. Bisgard, Sach'a, and Block opined that the claimant's slip and fall injury in 2007 did not permanently worsen her pre-existing back condition. These doctors based their conclusions on inconsistencies in the claimant's reporting and testimony. Dr. Mason, on the other hand, determined that the claimant had sustained an 18 percent whole person impairment rating.
Dr. Reiss provided the DIME and report. He also determined that the claimant had sustained an 18 percent, whole person impairment rating consisting of 16 percent for physical impairment and two percent for psychological impairment. Conflicting medical records were presented to Dr. Reiss and he testified that he was unable to determine whether the claimant's work-related injury caused any permanent worsening of her condition. However, Dr. Reiss did not change his permanent medical impairment rating. The ALJ determined that the claimant sustained no permanent impairment from her compensable injury and that Dr. Reiss's opinion was incorrect. The ALJ therefore denied the claimant's request for permanent partial disability benefits, as well as her request for a medical benefit.
The claimant appeals the denial of permanent partial disability benefits. She asserts that the ALJ denied her due process when he reversed his original decision and denied her benefits because the ALJ found the claimant not credible without hearing or seeing her testify. We note that the ALJ based his decision not only on his review of hearing transcripts, but on his review of the documentation received into evidence. In any event, we are not persuaded that the ALJ deprived the claimant of due process by not hearing or seeing her testify before making credibility determinations.
The claimant refers to the court of appeals' discussion of due process in the context of a workers' compensation proceeding in the case of Bodensiek v. Industrial Claim Appeals Office, 183 P.3d 684 (Colo. App. 2008). In Bodensiek the court considered the claimant's contention that she was denied due process because a second ALJ who had not been present at the hearing found the claimant's testimony not to be credible and denied her claim. The court concluded that the claimant was not denied due process because the second ALJ made his or her credibility determinations after listening to digital recordings of the testimony. Bodensiek, 183 P.3d at 687. In the present matter the ALJ indicated in his supplemental order that he had reviewed the hearing transcripts. We conclude that the ALJ could properly rely on the medical evidence and his review of the hearing transcripts to make credibility determinations concerning the claimant's testimony.
In Bodensiek the court referred to, among other cases, earlier appellate decisions in which it was determined that the hearing officer did not deny due process by relying on transcripts, from hearings conducted by other hearing officers. Id. at 686 (citing Big Top, Inc. v. Hoffman, 156 Colo. 362, 365, 399 P.2d 249 (1965); Walton v. Industrial Comm'n, 738 P.2d 66, 67 (Colo. App. 1987); Ski Depot Rentals, Inc. v. Lynch, 714 P.2d 516, 519 (Colo, App., 1985); and State Compensation Ins. Fund v. Fulkerson, 680 P.2d 1325, 1327 (Colo. App. 1984)). Moreover, the court articulated several additional reasons why the claimant was not denied due process where the ALJ did not preside over the hearing at which the claimant testified. Noting that the hearing recordings were not in the record, the court determined that the ALJ's credibility determinations were consistent with basic principles for weighing credibility, which include whether the testimony is reasonable, consistent, and supported or contradicted by other evidence. The court also determined that the second ALJ would have noted that the implausibility of and inconsistency within the claimant's testimony, as well as the inconsistency between that testimony and unrebutted documentation of her medical treatment, are readily apparent from our review of the written record." In addition, the court observed that "an appellate court gives strong deference to credibility determinations made below" and that the appellate court usually did so "based only on the written record before it." Id. at 687.
Here, the ALJ made express findings concerning the quality of the claimant's testimony. For example, the claimant had stated she could not recall why she was given a prescription for Vicodin, but the ALJ found the claimant had received large amounts of the drug before 2007 and that if the claimant was pain free or had minimal pain prior to her compensable injury it was implausible that the claimant's physician would refill the claimant's Vicodin prior to her injury without the claimant actually asking for it. Supplemental Order at 7, ¶ 25. Regarding the substantial number of Vicodin pills being prescribed before her industrial injury, the ALJ noted the inconsistency between the claimant's testimony that her husband obtained Vicodin prescriptions through the mail using her prescription, but that on three occasions the claimant's prescription was filled through local pharmacies. Supplemental Order at 8, ¶ 28. In numerous portions of his findings the ALJ found that the claimant gave providers inconsistent medical histories and made misrepresentations as to her pre-existing condition. In light of the medical doeumentation and transcribed hearing testimony reviewed and evaluated by the ALJ, we find no deprivation of due process by the ALJ in making his credibility determinations.
The claimant further asserts that the ALJ erred in determining that the respondents overcamc the DIME physician's opinion where the only substantive change between the two orders is that in his supplemental order the ALJ found the claimant's testimony not credible. Following the entry of specific findings of fact and conclusions of law, § 8-43-301(5), C.R.S. authorizes the ALJ to issue a "supplemental order labeled as such limited to the matters raised in the petition to review." This provision authorizes the ALJ, within thirty days of completion of the briefing schedule, to alter, or even-reverse his prior order. No order becomes final and reviewable, until such time as the ALJ enters a supplemental order, or transmits the matter to the Industrial Claim Appeals Office for review. See Hillebrand Construction Co. v. Worf, 780 P.2d 24 (Colo. App. 1989); Michahki v. Industrial Claim Appeals Office, 757 P.2d 1146 (Colo. App. 1988).
The ALJ entered a timely supplemental order. The supplemental order constitutes the ALJ's final order on the, issue of reopening. The ALJ's original order is therefore of no effect and did not preclude the ALJ from reversing himself in the supplemental order.
Section 8-42-107(8), (c). C.R.S., provides that the DIME physician's finding of medical impairment 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 (Colo. App. 1995).
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: "[I]rrespective 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. Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to supporf 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. Under this standard of review, it is also the ALJ's sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. We may not substitute our judgment for that of the ALJ regarding, credibility matters unless there is such hard, certain evidence contradicting the ALJ's, determination that it would be error as a matter of law. See Halliburton Services v. Miller 720 P.2d 571 (Colo. 1986).
The ALJ found the opinions of three physicians, together with ambivalent testimony from the DIME physician." indicated that it was highly likely that the DIME physician's impairment rating was incorrect. For example, the ALJ found that Dr. Bloch agreed with Dr. Bisgard that given the claimant's-long history of low back problems, morbid obesity, and smoking history, she would not recover from low back pain and be pain free prior to her compensable injury. "Instead, the claimant's history of treatment for low back problems before her industrial injury, was consistent with the claimant having significant low back pain and debilitation just prior to her work-related injury. Bloch Depo. (9/15/09) at 15-16. Dr. Bloch also agreed with Dr. Bisgard that the claimant's work injury did not cause a permanent worsening off her pre-existing back condition. Bloch Depo. (9/15/09) at 19-23. Dr. Sacha stated he did not think the claimant's work injury permanently worsened the natural progression of the claimant's underlying back condition and, also, that the claimant would likely have experienced the progression of her low back pain regardless of the compensable injury. Exhibit B at 21. The DIME physician, Dr. Reis, indicated that he was not able to determine whether the claimant's work-related injury caused any permanent worsening of her condition. Reiss Depo. (6/3/09) at 43, 45. The ALJ's findings and conclusions are supported by substantial evidence and by applicable law. See § 8-43-301(8), C.R.S.
IT IS THEREFORE ORDERED that the ALJ's supplemental order dated October 5, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Curt Kriksciun
CYNDI MONTOYA-BERRY, ARVADA, CO, (Claimant).
SEDGWICK CLAIMS MANAGEMENT SERVICES, Attn: AMY KINSEY, DENVER, CO, (Insurer).
BENDINELLI LAW OFFICE, Attn: JULIE D. SWANBERG, ESQ., BROOMFIELD, CO, (For Claimant).
DWORKIN, CHAMBERS, WILLIAMS, YORK, BENSON EVANS, P.C., Attn: GREGORY K. CHAMBERS, ESQ, DENVER, CO, (For Respondents).
BENDINELLI LAW OFFICE, Attn: JERRY SUMNER, ESQ, BROOMFIELD, CO, (Other Party).