IN THE MATTER OF THE CLAIM OF BENITA MARTINEZ, Claimant, v. SENIOR RESOURCE CENTER, INC., Employer, and PINNACOL ASSURANCE, Insurer, Respondents.

W.C. No. 4-748-216.Industrial Claim Appeals Office.
October 14, 2009.

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FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Henk (ALJ) dated June 23, 2009, that determined that the claimant’s current low back condition, left shoulder condition and need for additional treatment for her right knee are not causally related to the work-related fall on January 9, 2008. The ALJ also determined that the claimant failed to prove that her current psychological problems were causally related to or were aggravated by the work-related fall on January 9, 2008. The ALJ denied and dismissed the claim for permanent total disability. The ALJ denied all of the claimant’s requests for additional medical treatment and specifically denied maintenance medical benefits. We affirm.

The claimant suffered an industrial injury on January 9, 2008 when she tripped over a phone cord. The respondents filed a Final Admission of Liability dated October 14, 2008 admitting for various periods of temporary disability and for permanent partial disability of 12 percent of the claimant’s right lower extremity. The admission was based upon the report of Dr. Fillmore who had conducted a Division-sponsored independent medical examination (DIME). The claimant had previously, while working for another employer on September 11, 1999, suffered an admitted injury to her bilateral knees, low back, elbows, and suffered psychological issues related to those injuries.

The claimant set the matter for hearing on a number of issues. The ALJ found that the claimant had failed to overcome the DIME physician’s opinion that her current low back condition, left shoulder condition and need for additional treatment for her right knee were not causally related to the work-related fall on January 9, 2008. The ALJ

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found that the DIME physician’s opinion was credible, persuasive, and not overcome by clear and convincing evidence.

The ALJ further found that the claimant failed to prove that her current psychological problems were causally related to the work-related fall on January 9, 2008. On this issue the ALJ made the following findings. The claimant had a long-standing history of depression and treatment that pre-dated the fall. The claimant had failed to prove that the January 9, 2008 fall aggravated her pre-existing psychological problems. The DIME physician did not opine that the claimant had any psychological impairment as a result of the fall. The claimant failed to overcome the DIME physician’s opinions by clear and convincing evidence.

The ALJ determined that the claimant failed to prove that she was permanently and totally disabled. On this issue, the ALJ made the following findings. The respondents’ vocational rehabilitation expert opined that the claimant was employable and capable of earning a wage. This expert was credible and persuasive. The rehabilitation expert identified five job types that she felt the claimant was capable of performing. The claimant’s treating physician, Dr. Cedillo, opined that the clamant was capable of working in all five positions even with the restrictions from her work-related injuries.

The ALJ determined that the claimant had failed to prove that her need for any additional medical treatment at this time was causally related to her January 9, 2008 fall. The ALJ denied and dismissed the claimant’s request for right knee surgery, left shoulder treatment, low back treatment, treatment for depression, and maintenance medical benefits.

I.
On appeal the claimant first contends the ALJ generally committed reversible error by overlooking or misapprehending certain evidence favorable to her position. The claimant contends the ALJ erroneously ignored a great deal of evidence such as her testimony that she now takes six times more methadone for increased pain than she did before the accident of January 9, 2008.

As we read the claimant’s brief she does not contest that there was no factual support in the record for the ALJ’s factual determinations outlined above. In any event, it is our opinion that there is substantial evidence to support the ALJ’s findings. Rather as we understand the claimant’s argument, she contends that the ALJ overlooked certain evidence or her findings were incomplete.

However, the existence of evidence which, if credited, might support a

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determination contrary to that reached by the ALJ does not afford us grounds to grant appellate relief. Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d. 28 (1963). The ALJ is not required to cite or discuss every piece of evidence before crediting evidence to the contrary. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970). Rather, evidence not cited is implicitly rejected as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000).

In essence the claimant asks us to reweigh the evidence to reach a finding contrary to the ALJ’s conclusion, arguing that the ALJ ignored irrefutable, certain evidence in reaching her decision. However, we may not reevaluate the evidence. See Metro Moving Storage, 914 P.2d at 415. On the contrary, we must uphold the decision where, as here, substantial evidence supports the ALJ’s determination. Section 8-43-301(8), C.R.S. 2009.

II.
The claimant next contends that the ALJ committed reversible error by misapprehending the issue before her as being one of overcoming the opinions of the DIME physician by clear and convincing evidence. The claimant contends instead that the threshold issue of compensability was before the ALJ, which required resolution by standard causation analysis. The claimant, citing Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000), argues that proof of causation is a threshold retirement which the worker need establish only by a preponderance of the evidence.

Here, the ALJ determined that although the claimant had endorsed the issue of compensability, the claimant was actually attempting to overcome the DIME physician’s opinion that her current low back condition, her current left shoulder condition, and her need for additional treatment for her right knee was not related to the injury that occurred on January 9, 2008. The ALJ found that the claimant was seeking to overcome the DIME physician’s opinion and conclusions regarding causation on both the issue of permanent medical impairment, as well as attempting to overcome the DIME physician’s opinions on causation and relatedness in an effort to obtain permanent total disability benefits. Conclusions of Law B and F at 15-16. The ALJ found that the claimant had failed to overcome the DIME physician’s opinions by clear and convincing evidence.

We do not agree with the claimant that the issue of causation in this case concerned only the threshold showing necessary to prove compensability. In our view, the issue of causation here involved an inquiry into the relatedness of particular components of a claimant’s overall impairment. In such circumstances, the opinions of the DIME physician carry presumptive effect. See Eller v. Industrial Claim Appeals

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Office ___ P.3d ___,(Colo. App. No. 08CA2274, Sept. 3, 2009) see also, Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590, 592 (Colo. App. 1998),

We acknowledge that the threshold question of whether the claimant has sustained a compensable injury in the first instance is one of fact that the ALJ must determine, if contested, under the preponderance of the evidence standard. See Leprino Foods Co. v. Industrial Claim Appeals Office of State, 134 P.3d 475, 483 (Colo. App. 2005) (citing Pacesetter Corp. v. Collett, 33 P.3d 1230 (Colo. App. 2001). Consequently, the DIME physician’s opinion on this issue is not entitled to special or presumptive weight. Faulkner v. Industrial Claim Appeals Office, supra.

Here, unlike the situation in Faulkner, the existence of a compensable injury is not in question. Indeed, the insurer admitted, in its Final Admissions of Liability that the claimant sustained a compensable injury and paid permanent partial disability benefits. The issue presented to the DIME physician and later to the ALJ was the extent of this injury. Therefore, the issue of the cause of claimant’s low back condition, her current left shoulder condition, and her need for additional treatment for her right knee was properly before the DIME physician, and his opinions on the causation issue became binding unless overcome by “clear and convincing evidence.” Consequently, we perceive no error in the ALJ’s applying the clear and convincing evidence standard instead of the preponderance of the evidence in deciding the causation issue before her.

III.
The claimant next contends that the ALJ erred in certain evidentiary rulings. We are not persuaded that the ALJ abused her discretion.

We initially note that the ALJ has broad discretion in the conduct of evidentiary proceedings. IMPC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo. App. 1988). We therefore review the ALJ’s ruling under the abuse of discretion standard. See Rennaissance Salon v. Industrial Claim Appeals Office, 994 P.2d 447 (Colo. App. 1999) (reviews of orders concerning the conduct of administrative hearings are subject to the abuse of discretion standard). An abuse of discretion does not occur unless the ALJ’s order is beyond the bounds of reason, as where it is unsupported by the record or contrary to the law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. App. 1993).

The claimant argues that the ALJ erred in denying her the right to cross-examine the vocational expert for the respondent. The claimant contends that the ALJ erred in refusing to allow the expert to answer a question regarding her education in psychology. Our review of the transcript shows that the claimant asked the respondents’ vocational expert questions about her education in psychology. Tr. at 139-41. The ALJ expressed

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doubt about the relevancy, but allowed the expert to state that she did not have a degree in psychology and allowed questions about college training of the expert in the effects of medication. Tr. 139-41.

Evidence is relevant if it has any tendency to make the existence of a consequential fact more or less probable. CRE 401. The ALJ has discretion to determine the relevancy of evidence. See §§ 8-43-207(1)(c) (ALJs are empowered to make evidentiary rulings), 8-43-210 (Colorado Rules of Evidence apply in all hearings), C.R.S. 2009; One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 501, 506 (Colo. App. 1995) (ALJ has broad discretion to determine the admissibility of expert testimony, and appellate courts may not overturn a ruling unless it is manifestly erroneous); see also, Aviado v. Industrial Claim Appeals Office ___ P.3d ___, (Colo. App. No. 08CA0923. April 16, 2009).

Here, on the issue of training in treating depression it is not clear whether the ALJ prevented the claimant counsel from asking certain questions on the ground of relevancy or whether there simply was not a question asked on this issue. Tr. at 140. In any event we are satisfied that the ALJ acted within her discretion in sustaining respondents objection to additional questions on the expert’s training in psychology on the grounds of relevance.

The claimant also contends that it was error for the ALJ to refuse to allow the claimant to answer a question regarding whether there was anybody in her family who was seeking a job who was not physically disabled. Tr. at 153. In our view the connection of this question with the availability of jobs suitable for the claimant is so attenuated that we fail to perceive how the question made it more or less likely that the claimant was permanently and totally disabled. We again are of the view that the ALJ acted within her discretion in sustaining the objection. We have considered the claimant’s remaining arguments and find them to be without merit.

IT IS THEREFORE ORDERED that the ALJ’s order dated June 23, 2009 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ John D. Baird

______________________________ Thomas Schrant

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BENITA MARTINEZ, DENVER, CO, (Claimant).

SENIOR RESOURCE CENTER, INC., DENVER, CO, (Employer).

PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).

JOHN A KINTZELE, Attn: JOHN A “JACK” KINTZELE, ESQ., DENVER, CO, (For Claimant).

RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: ALEXANDRA COLEMAN, ESQ., DENVER, CO, (For Respondents).

PINNACOL ASSURANCE, Attn: MS AMANDA MEISHEID, DENVER, CO, (Other Party).

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