W.C. No. 4-253-513Industrial Claim Appeals Office.
December 9, 1999
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Gandy (ALJ) which denied his petition to reopen based on mistake and change of condition. The claimant contends the order failed to address whether his cervical and back problems were related to the industrial injury. The claimant also contends the ALJ erred in holding that the opinion of the Division-sponsored independent medical examination (IME) physician was “irrelevant” in determining the cause of his cervical and back impairment. We affirm.
The claimant sustained a compensable injury on April 1, 1995, in a truck accident. On April 18, 1995, the claimant’s treating physician, Dr. Grossnickle, performed surgery on the claimant’s left foot. The claimant was placed at maximum medical improvement (MMI) in September 1995, and referred to Dr. Branum for an impairment rating. Dr. Branum assessed a 15 percent lower extremity impairment, and on January 5, 1996, the respondents filed a final admission of liability based on the rating. The claimant failed to contest the final admission in a timely fashion.
In February 1996, the claimant sought chiropractic treatment for back problems. The chiropractor reported the claimant did not relate his complaints to any specific incident, but felt that he might have injured his back when he stepped out of his truck. In March 1996, the claimant returned to Dr. Grossnickle complaining of back pain. In a report dated June 12, 1996, Dr. Grossnickle reported that the claimant had been followed “mainly for a heel injury,” but also complained of “neck and back pain.” Dr. Grossnickle’s September 25, 1996 report stated that the claimant’s job driving a truck could “aggravate his sore back and neck.”
The claimant requested and obtained a Division-sponsored IME by Dr. Fitzgerald. Dr. Fitzgerald assessed a 32 percent whole person impairment, which included impairment for the claimant’s cervical, thoracic, and lumbar spine. Dr. Fitzgerald stated that the claimant’s “neck, thoracic spine, and lumbar spine should be rated because they were all hurt initially and he complained of pain.”
The respondents requested the claimant to undergo an IME by Dr. Lynch. Dr. Lynch declined to rate the claimant’s neck or back because the medical records failed to document any neck or back injury to a reasonable degree of medical probability. Further, Dr. Lynch noted that the claimant underwent cervical and lumbar MRIs which failed to document any “structural abnormality.” (Lynch Depo. p. 19). Further, Dr. Lynch opined that Dr. Fitzgerald’s IME report was not properly documented in accordance with the AMA Guides, that some of Dr. Fitzgerald’s range of motion measurements appeared to be invalid, and that it was impossible to reconstruct how Dr. Fitzgerald arrived at his impairment rating. (Lynch Depo. pp. 22-35). Dr. Lynch also stated that Dr. Fitzgerald’s rating was not completed in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides).
The claimant filed a petition to reopen the claim on the theory that the respondents’ final admission of liability was mistaken because it did not “address” his low back and neck pain, and that there had been a change in condition. The ALJ concluded that the opinions of Dr. Lynch are entitled to the most weight, and therefore, the claimant failed to prove that his “back problems” are related to the industrial injury rather than his post-MMI employment as a truck driver. In reaching this determination, the ALJ stated that the “opinion of the Division IME physician [Dr. Fitzgerald] in this matter is irrelevant since this claim properly closed prior to such opinion being rendered.” In any event, the ALJ stated that the IME physician’s report “would have been overturned by clear and convincing evidence because it was incomplete and not properly prepared pursuant to the AMA Guides.”
I.
On review, the claimant first contends the ALJ’s findings of fact are insufficient because the order fails to address the claimant’s neck condition. According to the claimant, the ALJ’s order addresses the cause of the claimant’s “back” problems, but fails to consider that the Division IME physician rated the claimant’s cervical condition. We are not persuaded.
The ALJ is not held to a crystalline standard in expressing findings of fact and conclusions of law. Rather, it is sufficient for the ALJ to address the evidence which he finds dispositive of the issues involved. So long as we can ascertain the basis of the ALJ’s order, it is unnecessary to remand for additional findings of fact and conclusions of law. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
Here, the ALJ’s Conclusions of Law reflect that the ALJ was fully aware the claimant was seeking to reopen based on neck pain, as well as thoracic and lumbar pain. Further, the ALJ explicitly credited Dr. Lynch’s testimony, and Dr. Lynch testified concerning the cause of the claimant’s cervical pain. (Lynch Depo. p. 19). Consequently, we view the ALJ’s finding that the claimant’s “back problems” are not causally related to the industrial injury as encompassing the claimant’s cervical condition.
II.
The claimant next contends the ALJ erred in holding that Dr. Fitzgerald’s IME opinion concerning the cause of the claimant’s back and neck conditions is “irrelevant.” Relying on Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998), and similar cases, the claimant argues that the question of whether a “particular component” of the claimant’s medical impairment was caused by the industrial injury is an inherent part of the rating process under the AMA Guides. Therefore, the claimant argues Dr. Fitzgerald’s IME opinion concerning causation was binding on the ALJ absent clear and convincing evidence to the contrary. We find no error.
We assume, arguendo, that the ALJ was incorrect in stating that Dr. Fitzgerald’s opinion concerning the cause of the claimant’s neck and back problems was “irrelevant” because the Division-sponsored IME occurred after closure of the claim. However, the ALJ also stated that Dr. Fitzgerald’s IME report “would have been overturned by clear and convincing evidence” because it was incomplete and not prepared in accordance with the AMA Guides. Further, the ALJ expressly credited Dr. Lynch’s opinions concerning the issue of causation.
As recognized in Egan v. Industrial Claim Appeals Office, supra, the statutory scheme established by § 8-42-107(8)(c), C.R.S. 1999, entitles the ALJ to make the ultimate causation determination, albeit under the heightened evidentiary standard of clear and convincing evidence. In determining whether the record contains clear and convincing evidence, it is for the ALJ to assess the weight and credibility of the evidence, including the testimony of expert witnesses. We may not substitute our judgment for his on these evidentiary questions. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the ALJ made extensive findings of fact concerning the inadequacy of the IME report. These findings were largely based on the testimony of Dr. Lynch, who specifically attacked the sufficiency of the medical record to support Dr. Fitzgerald’s finding of causation. Moreover, the ALJ expressly stated that the evidence was of sufficient weight that he “would have” found that Dr. Fitzgerald’s opinion was overcome by clear and convincing evidence.
Thus, to the extent the ALJ committed error by failing to accord special weight to Dr. Fitzgerald’s IME opinion, the error was cured because the ALJ found that Fitzgerald’s opinion was overcome by clear and convincing evidence. Further, the record contains substantial evidence in support of the ALJ’s finding that Fitzgerald’s report was overcome. While we recognize there was conflicting evidence concerning the cause of the claimant’s neck and back problems, we cannot say the ALJ’s determination of the causation issue constitutes error as a matter of law.
Because the evidence supports the ALJ’s determination that the industrial injury did not cause the claimant’s neck and back problems, the record necessarily supports denial of the petition to reopen based on the alleged worsened condition attributed to the neck and back problems. See Chavez v. Industrial Commission, 714 P.2d 1328 (Colo.App. 1985).
IT IS THEREFORE ORDERED that the ALJ’s order dated March 18, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Dona Halsey
NOTICE This Order is final unless an action to modify or vacatethe Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, Colorado 80203, by filing a petition toreview with the court, with service of a copy of the petitionupon the Industrial Claim Appeals Office and all other parties,within twenty (20) days after the date the Order was mailed,pursuant to §§ 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed December 9, 1999 to the following parties:
Alan L. Bishop, P.O. Box 483, Kersey, CO 80644
Bill Campbell, Digby Truck Line, 1500 Heil Quaker Blvd., Lavergne, TN 37086
Debbie Kaufman, Lumberman’s Underwriting Alliance, 15055 S.W. Sequoia Pkwy., #120, Portland, OR 97224-7197
Regina M. Walsh Adams, Esq., 1011 37th Ave. Ct., #201, Greeley, CO 80634 (For Claimant)
David J. Dworkin, Esq., Melissa J. Loman, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondents)
BY: A. Pendroy