W.C. No. 4-719-401.Industrial Claim Appeals Office.
June 25, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cain (ALJ) dated February 16, 2010, that determined the claimant had not overcome the opinion of the Division-sponsored independent medical examination (DIME). We affirm.
On March 31, 2007 the claimant fell from a piece of heavy equipment. The claimant fell at least 8 feet and broke his left wrist. Much of the litigation revolved around whether the claimant sustained any additional injuries in the industrial fall. The claimant underwent a DIME on July 10, 2008. The DIME physician also assessed an impairment rating for the left upper extremity, which does not appear to be in dispute. The DIME physician also opined that the claimant suffered a vascular system impairment, most likely CRPS Type II, because of the industrial fall. The DIME physician assessed a 9 percent for the vascular system impairment. The DIME physician opined that the claimant’s back, neck, torso, urologic and gastrointestinal disorders were not connected to the industrial injury.
The ALJ found that the claimant had failed to prove it was highly probable and free from serious doubt that the DIME physician incorrectly determined that the claimant’s bladder condition was unrelated to the industrial injury. Therefore, the ALJ determined the claimant failed in his attempt to overcome the DIME physician on the issues of MMI as related to the bladder problems. The claimant appeals the decision of the ALJ regarding the causation of the bladder problems. The ALJ also found that the respondents have failed to prove it was highly probable and free from serious doubt that the DIME physician erred in diagnosing CRPS II. The respondents do not appeal this portion of the ALJ’s order.
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The DIME physician’s medical impairment rating is binding unless overcome by “clear and convincing evidence.” Section 8-42-107(8)(c), C.R.S; Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). Pursuant to § 8-42-107(8)(b)(III), C.R.S, a DIME physician’s finding of MMI is binding on the parties unless overcome by clear and convincing evidence. Montoya v. Industrial Claim Appeals Office 203 P.3d 620 (Colo. App. 2008); Brownson-Rausin v. Industrial Claim Appeals Office 131 P.3d 1172 (Colo. App. 2005).
“Clear and convincing” evidence has been defined as evidence which demonstrates that it is “highly probable” the DIME physician’s opinion is incorrect. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo. App. 1998); Metro Moving Storage Co. v. Gussert, supra. 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. 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
We note that the record contains no transcripts of the hearings before the ALJ. Our review is truncated by the absence of hearing transcripts in the record. As a general matter, we must uphold the ALJ’s factual findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. Where, as here, the appealing party fails to procure transcripts of the relevant hearings we must presume the pertinent findings of fact are supported by substantial evidence. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo. App. 1988).
The claimant first contends that the ALJ erred in finding that he had failed to prove by clear and convincing evidence that the DIME physician erred in determining that the his bladder condition was not causally related to the industrial injury and therefore placing him at MMI. The claimant contends that the ALJ findings are not supported by substantial evidence.
The claimant contends he overcame the DIME physician’s opinion that the etiology of the claimant’s neurogenic bladder was unknown. The courts have held that the DIME physician’s determination that an impairment is or is not caused by the industrial injury is also subject to the clear and convincing evidence standard. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002); Qual-Med, Inc. v. Industrial Claim Appeals Office, supra.
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The claimant argues that Dr. Brownrigg opined that the industrial injury appeared to be the precipitating cause of the claimant’s neurogenic bladder. The claimant notes that Dr. Brownrigg testified that the claimant’s bladder condition was either caused by the trauma from the fall at work or by use of Lyrica prescribed to treat the claimant’s injuries. The claimant contends that the DIME physician’s opinion that the claimant’s bladder condition was not related to the industrial injury because of lack of evidence of traumatic treatment is in error because it did not address the other basis for Dr. Brownrigg’s opinion that the use of Lyrica caused the bladder condition.
The ALJ found that the claimant failed to prove it was highly probable and free from serious doubt that the DIME physician incorrectly determined that the claimant’s bladder condition was unrelated to the industrial injury. The ALJ made the following findings of fact regarding Dr. Brownrigg’s opinion on the cause of the claimant’s bladder condition. The DIME physician stated that the urologic gastrointestinal disorders could not be connected to the work injury. Exhibit A at 9. The DIME physician specifically stated that the etiology of the neurogenic bladder was unknown. Exhibit A at 9. The DIME physician stated that there was no documentation of the claimant having any back, neck, or torso injury in regard to the work injury. Exhibit A at 9. The claimant was seen by Dr. Heppe, a urologic specialist. Dr. Heppe opined that the claimant’s very unusual spectrum of complaints and findings made an easy explanation of his bladder condition elusive. Exhibit G at 115. The DIME physician’s determination was corroborated by the credible opinions of Dr. Geiger and Dr. Brodie. Exhibit C at 31, Exhibit D at 38-39, Geiger Depo. at 65-66. Both Dr. Geiger and Dr. Brodie credibly noted that the medical records do not document any reports of injury to the claimant’s torso and back at the time of the industrial injury. Exhibit C at 31, Geiger Depo. at 9-10. Dr. Brodie credibly opined that it was unlikely that there was any causal relationship between trauma at the time of the injury and the development of bladder problems. Exhibit C at 31. Dr. Brodie further credibly opined that the diabetes insipidus diagnosed by PA Kulp (and noted by Dr. Beck) was a likely cause of the bladder condition. Exhibit C at 31. Dr. Brodie credibly observed that medical literature documented this relationship. Exhibit C at 31.
The claimant relies on the opinions of Dr. Brownrigg. However, the ALJ made the following findings of fact with record support regarding the testimony of Dr. Brownrigg. Dr. Brownrigg admitted that it was speculative to state whether the bladder condition was caused or aggravated by the direct effects of the industrial injury or was secondary to medications given to treat the injury. Brownrigg Depo. at 13. Dr. Brownrigg stated that he was unaware that there had been a diagnosis of diabetes insipidus and that could cause increase fluid in the bladder and act as a “co-factor” in aggravating the claimant’s bladder. Brownrigg Depo. Tr. at 29.
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The ALJ made the following findings concerning the opinions of Dr. Brownrigg. Dr. Brownrigg’s opinion concerning the cause of the bladder condition was not sufficiently credible and persuasive to overcome Dr. Struck’s opinion. The medical records did not support Dr. Brownrigg’s opinions to the extent he believed the injury resulted in trauma that directly caused or aggravated the bladder condition. It was not highly probable and free from serious doubt that the use of medication was the cause of the bladder condition. Dr. Brodie stated that the medical literature does not support this assertion and posed an equally plausible theory that the bladder condition was caused by diabetes insipidus. Even Dr. Brownrigg conceded that diabetes could be a “co-factor” in causing the bladder condition.
The ALJ found that the DIME physician’s opinion was that the etiology of the claimant’s bladder problems was unknown and could not be causally connected to the industrial injury. The ALJ concluded that the DIME physician’s opinion had not been overcome. Here the case was determined in considerable degree on conflicting medical opinions. 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). In our view, there is substantial evidence supporting the ALJ’s determination. Therefore, we perceive no basis upon which to set aside the ALJ’s order.
The claimant urges us to review the entire record and make new findings of fact or amend or modify the ALJ’s findings and determine that the claimant’s bladder condition was causally related to his industrial injury. We acknowledge that the cases cited by the claimant support the position that the Industrial Commission had certain fact-finding powers. However, the General Assembly abolished the former Industrial Commission and created the Industrial Claim Appeals Panel. See May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo. App. 1988); Flynn v. M.A.G. Mining Inc., W. C. No. 4-256-973 (June 6, 1997). The Panel has no authority to substitute its judgment and set aside the findings of fact, supported by substantial evidence, entered by the ALJ. Section 8-43-301(8).
The claimant also contends that the respondents failed to provide Dr. Brownrigg’s report to the DIME physician in violation of W.C. Rule of Procedure 11-3(j), 7 Code Colo. Reg. 1101-3. The claimant argues that the DIME physician’s opinion was promulgated without pertinent diagnostic information from Dr. Brownrigg’s report. We decline to address the claimant’s argument, raised for the first time on appeal, that there was a violation of Rule 11-3(j).
As noted before the record does not contain transcripts of the hearing. The party seeking to overturn a judgment bears the responsibility for producing a record sufficient
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to demonstrate that an error has occurred. Otherwise, the regularity of the court’s rulings will be presumed. Hanna v. Print Expediters Inc. 77 P.3d 863, (Colo. App. 2003); see Fleet v. Zwick, 994 P.2d 480 (Colo. App. 1999). Here we note that the claimant’s proposed order does contain a statement that the DIME physician was not provided with Dr. Brownrigg’s clinical notes. However, we see no argument regarding Rule 11-3 in the claimant’s proposed order, nor do we see such an argument in the claimant’s Trial Brief. Therefore because it appears that the claimant failed to raise this argument before ALJ Cain, it has not been preserved for our review Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988) Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo. App. 1994); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo. App. 1987).
The claimant contends that the ALJ erred in finding that PA Kulp diagnosed the claimant as having diabetes insipidus. The ALJ’s order contains the finding that diabetes insipidus was diagnosed by PA Kulp and noted by Dr. Beck. In our view these findings are supported in the medical record. Exhibit O at 134-35. We recognize that PA Kulp at one point in the record said “possible” diabetes insipidus but he also said “probable” diabetes insipidus in another portion of the report. Exhibit O at 134. 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 claimant argues that Dr. Beck only saw the claimant on one occasion. However, this does not compel the conclusion that Dr. Beck’s opinion that the claimant’s history of neurogenic bladder and symptoms was consistent with diabetes insipidus, must be disregarded. Despite the claimant’s contentions to the contrary, in our view these medical reports admitted into evidence are sufficient to form the basis of the ALJ’s reasonable inference drawn from the record that the claimant was diagnosed with diabetes insipidus. Therefore, it is binding on us. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo. App. 1999).
The claimant argues that the ALJ erred in finding that he had failed to overcome the DIME physician’s finding of MMI by clear and convincing evidence. This argument is on the similar ground that the DIME physician erred in finding that the bladder condition was unrelated to the injury or the treatment for the injury. We are persuaded that there is substantial evidence in the record to support the ALJ’s determination that the DIME physician accurately stated that the cause of the claimant’s bladder problems was unknown and could not be causally related to the industrial injury. In our view, the opinion of the DIME physician was supported by the opinions of Dr. Brodie and Dr. Geiger.
In our opinion, the evidence outlined above constitutes substantial evidence in support of the ALJ’s determination and is therefore binding on us. The standard of review is whether the ALJ’s findings of fact are supported by substantial evidence in the
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record. Section 8-43-301(8), C.R.S. Moreover, because the appealing party failed to procure transcripts of the relevant hearings we must presume the pertinent findings of fact are supported by substantial evidence. Nova v. Industrial Claim Appeals Office supra. Finally, we have considered the claimant’s other contentions, but conclude that they present us with no grounds upon which the order of the ALJ may be set aside.
IT IS THEREFORE ORDERED that the ALJ’s order issued February 16, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
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JAMES J BOWERS, ALAMOSA, CO, (Claimant).
ROCK PRODUCTS, INC., Attn: KEVIN PITTS, C/O: RESOURCE MANAGEMENT SERVICES, GREENWOOD VILLAGE, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
LAW OFFICES OF FRANK W. WOLFF, Attn: FRANK W. WOULF, ESQ., DENVER, CO, (For Claimant).
RITSEMA LYON, PC, Attn: SEAN KNIGHT, ESQ., DENVER, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: COURT EMMONS, DENVER, CO, (Other Party).
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