W.C. No. 3-115-121Industrial Claim Appeals Office.
November 29, 1996
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) insofar as the ALJ denied her claim for temporary disability benefits after December 2, 1994, the date Dr. Fawcett determined the claimant to be at maximum medical improvement (MMI). We affirm.
The ALJ’s findings of fact may be summarized as follows. The claimant suffered an admitted occupational disease from the repetitive use of her arms while working for the respondent-employer. The injury was treated by Dr. Jensen, who referred the claimant to Dr. Gromke. In September 1994, Dr. Gromke performed right carpal tunnel release surgery. Dr. Gromke subsequently reported that the surgery was successful and that the claimant reached MMI on November 16, 1994. However, due to the claimant’s continuing complaints of right hand problems, Dr. Gromke referred the claimant to Dr. Primack. After his examination on December 2, 1994, Dr. Primack opined that the claimant was at MMI with permanent impairment to both upper extremities. Thereafter, the claimant was again seen by Dr. Jensen, who opined that the claimant was at MMI as of January 4, 1995.
On her own, the claimant consulted with Dr. Richards, who diagnosed a cumulative trauma disorder in both upper extremities. On February 23, 1995, Dr. Richards performed left carpal tunnel release surgery, and removed a ganglion cyst from that hand.
Subsequently, the claimant underwent a Division-sponsored independent medical examination (IME). The IME was performed by Dr. Fawcett, who opined that the claimant reached MMI on December 2, 1994.
On appeal, the claimant concedes that she reached MMI from the occupational injury to her left upper extremity on December 2, 1994. However, relying on Dr. Richards’ opinion that the February 1995 surgery was reasonable and necessary to treat the claimant’s bilateral injury, and the claimant’s testimony that her left upper extremity improved as a result of the February 1995 surgery, the claimant contends that she was not at MMI for the left upper extremity injury on December 2, 1994. Therefore, the claimant argues that ALJ erred in refusing to award additional temporary disability benefits. We perceive no error.
The applicable statute is former § 8-42-107(8)(b), C.R.S. (1991 Sess. Laws, ch. 219 at 1309) [subsequently amended 1996 Colo. Sess. Laws, ch. 112 at 269 for MMI determinations on or after July 1, 1996]. The statute provides that the MMI determination of the IME physician selected by the Division is binding unless “overcome by clear and convincing evidence.” The “clear and convincing evidence” standard requires the claimant to prove that it is “highly probable” that the IME physician’s opinion is incorrect. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The question of whether the claimant sustained her burden of proof is a question of fact for resolution by the ALJ. Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995); Metro Moving Storage Co. v. Gussert, supra. Accordingly, we must uphold the ALJ’s determination if supported by substantial evidence and the ALJ’s plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.); Postlewait v. Midwest Barricade, supra.
The ALJ is the sole arbiter of conflicting medical opinions Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Consequently, where the ALJ’s findings are supported by the record, the existence of medical evidence which, if credited, might support a contrary result, is immaterial. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
Here, the ALJ found that the claimant failed to present clear and convincing evidence that Dr. Fawcett’s opinions were incorrect. This finding was based upon the ALJ’s determination that Dr. Fawcett’s opinions were most persuasive. Regional Transportation District v. Jackson, 805 P.2d 1190 (Colo.App. 1991) (ALJ’s credibility determinations informs reviewing court how ALJ resolved conflicts in the evidence).
We must defer to the ALJ’s credibility determinations. Metro Moving Storage Co. v. Gussert, supra. Furthermore, there is substantial evidence in the record to support the ALJ’s findings of fact, and the findings support the ALJ’s conclusion that the claimant failed to sustain her burden of proof. Therefore, the ALJ was bound by Dr. Fawcett’s opinion that the claimant reached MMI on December 2, 1994, and did not err in refusing to award additional temporary disability benefits. Section 8-42-105(3)(a), C.R.S. (1996 Cum. Supp.); Colorado AFL-CIO v. Donlon, 914 P.2d 396
(Colo.App. 1995).
IT IS THEREFORE ORDERED that the ALJ’s order dated May 31, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed November 29, 1996 to the following parties:
Tammie J. Saporita, 2680 B-1/2 Road, #20E, Grand Junction, CO 81503
Dixson, Inc., 287 27 Road, Grand Junction, CO 81503-1905
Colorado Compensation Insurance Authority, Attn: Brandee L. DeFalco, Esq. (Interagency Mail)
Thomas W. Blake, Esq., 744 Horizon Ct., Ste. 360, Grand Junction, CO 81506
(For the Respondents)
Gudrun Rice, Esq., P.O. Box 3207, Grand Junction, CO 81502 (For the Claimant)
BY: _______________________