W.C. No. 4-777-953.Industrial Claim Appeals Office.
August 22, 2010.
The claimant seeks review of an order of Administrative Law Judge Krumreich (ALJ) dated April 20, 2010, that determined the opinion of the Division-sponsored independent medical examination (DIME) physician had been overcome and denied a claim for medical benefits. We affirm.
The claimant sustained a compensable injury on November 14, 2008. The claimant was a passenger in a golf cart that was struck from behind by a tug vehicle that was pulling carts. The insurer, based upon reports from a treating physician, filed a Final Admission of Liability denying permanent impairment benefits and medical treatment after maximum medical improvement (MMI). The claimant underwent a Division-sponsored independent medical examination (DIME). The DIME physician assigned the claimant a 31 percent whole person impairment but also opined that the claimant was not at MMI.
The respondents’ challenged the DIME physician’s opinion on MMI and his opinion on impairment. The ALJ found that the respondents had overcome the opinions of the DIME physician by clear and convincing evidence. The claimant filed a petition to review.
The claimant objects to the ALJ’s finding that the claimant presented to the emergency room at the Medical Center of Aurora on November 10, 2008. The claimant contends that she did not present to the emergency room at the Medical Center of Aurora until November 14, 2008 following the work related incident.
We acknowledge that the ALJ did find that the claimant presented herself to the emergency Medical Center of Aurora on November 10, 2008, which would be 4 days before the November 14, 2008 accident. It is obvious from his findings that the ALJ was referencing the claimant’s Patient Chart dated November 14, 2008 from the Medical Center of Aurora found in the respondents’ hearing submissions. Exhibit F at 102-105.
However, the claimant has not filed a brief in support of her petition to review and, therefore, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo. App. 1986). The claimant has not explained what effect this error in the date the claimant went to the emergency room had on the ALJ’s conclusions and order in the case. We note that this was not a case where there was a dispute whether the claimant was involved in the work accident that occurred on November 14, 2008. Here, the insurer filed a Final Admission of Liability. Further, the ALJ found that the work injury of November 14, 2008 caused a temporary increase in the claimant’s symptoms. The dispute was the effect of the November 14, 2008 accident and whether it substantially changed the claimant’s medical condition.
It appears to us that there was a simple typographical error and that no substantial right of the claimant was affected. Under these circumstances, any error regarding the day the claimant presented herself at the emergency room of the Medical Center of Aurora was harmless and will be disregarded. See § 8-43-310 C.R.S (harmless error standard for review of workers’ compensation cases); see also Eller v. Industrial Claim Appeals Office, 224 P.3d 397, (Colo. App. 2009); Bodensieck v. Industrial Claim Appeals Office 183 P.3d 684 (Colo. App. 2008).
The claimant objects to the ALJ’s finding that the opinions of Dr. Simpson, Dr. Rauzzino, Dr. Lamond, and Dr. Orzinski, as well as any treatment providers from the Medical Center of Aurora and Rose Physical Therapy, were unpersuasive. The claimant notes that the ALJ cited Magnetic Engineering, Inc. V. ICAO 5 P.3d 385 (Colo. App. 2000). The claimant contends that the ALJ’s order fails to provide support for such a Finding of Fact.
We again are hampered by the lack of a brief filed by the claimant. As we read the claimant’s argument she contends that the ALJ committed error in finding the opinions of certain physicians unpersuasive without articulating a factual basis for such credibility determinations. However, the ALJ is not required to articulate the basis for his credibility determinations Wells v. Del Norte School District C-7, 753 P.2d 770 (Colo. App. 1987). Rather, the ALJ’s credibility determinations must merely be sufficient to adequately inform a reviewing authority how the ALJ resolved conflicts in the evidence Regional Transportation District v. Jackson, 805 P.2d 1190 (Colo. App. 1991). In our
opinion, here as in Regional Transportation District v. Jackson, the ALJ’s order identifies the evidence which the ALJ deemed persuasive and determinative of the issues resolved. Therefore, the factual findings are sufficient.
The claimant objects to the finding that Dr. Chan opined that further treatment is not likely to improve the claimant’s condition. We are not persuaded to interfere with the ALJ’s order.
We note that in his order the ALJ found the following opinions by Dr. Chan to be persuasive. The findings on an August 2009 MRI were present prior to the injury of November 2008 and that there were no significant changes when compared to the studies prior to the November 2008 injury. There was a significant component of conscious misrepresentation of symptoms by the claimant. The claimant was at MMI as further treatment would most likely not produce a significant amount of functional gain or decrease the subjective pain complaints. The ALJ found the opinions of Dr. Chan and Dr. Schakaraschwili persuasive that further treatment was not likely to improve the claimant’s condition and that the claimant’s need for any additional treatment was not causally related to the injury of November 14, 2008. The claimant does not specifically challenge these findings. In any event, because the issue is factual in nature we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. In our opinion the ALJ’s findings are supported by substantial evidence in the record. Exhibit 9 at 117, 119, 124.
The claimant specifically contends that Dr. Chan stated that Ms. Powell was free to follow up with a third injection and issued a prescription for such injection. We note that Dr. Chan did state that he was in agreement with Dr. Schakaraschwili that further treatment would most likely not produce a significant amount of functional gain or decrease in the claimant’s subjective pain complaint. Exhibit 9 at 124. We further note that Dr. Chan went on in the same paragraph to state that “[r]egardless, the patient would like to undergo the third and final session of epidural steroid injection and there is definitely no specific contradiction for such.” Exhibit 9 at 124. However, in our view the ALJ drew the reasonable inference from this report that further treatment was not likely to improve the claimant’s condition.
The claimant contends that the ALJ’s order failed to specifically address the claimant’s entitlement for medical benefits provided by Dr. Rafferty. We are not persuaded that the ALJ committed reversible error.
We note that in the claimant’s post-hearing position statement the claimant argued that she had demonstrated that the treatment received from Drs. Rauzzino, Simpson and Lamond were reasonable and necessary pursuant to Grover. We also fail to see in the transcript of the hearing that the claimant requested a ruling from the ALJ on her entitlement for medical benefits provided by Dr. Rafferty. Because the claimant failed to raise this argument before ALJ Krumreich it has not been preserved for our review Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988) Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo. App. 1987); Colorado Compensation
IT IS THEREFORE ORDERED that the ALJ’s order date April 20, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
LORELLE POWELL, AURORA, CO, (Claimant).
FRONTIER AIRLINES, Attn: SHERRY WIESELER, DENVER, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D. FLEWELLING, ESQ., DENVER, CO, (Insurer).
RITSEMA LYON, PC, Attn: KYLE L. THACKER, ESQ., DENVER, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: MARILYN ANDERSON, DENVER, CO, (Other Party).