IN RE AL-ABDULJALIL, W.C. No. 4-303-213 (05/11/00)


IN THE MATTER OF THE CLAIM OF DIANE AL-ABDULJALIL, Claimant, v. DEPARTMENT OF CORRECTIONS, Employer, and COLORADO COMPENSATION INSURANCE AUTHORITY, Insurer, Respondents.

W.C. No. 4-303-213Industrial Claim Appeals Office.
May 11, 2000.

FINAL ORDER
The claimant seeks review of a Supplemental Order of Administrative Law Judge Friend (ALJ) which denied her request for medical benefits to treat bilateral carpal tunnel syndrome (CTS) and migraine headaches. We affirm.

The claimant, who is a physician, suffered admitted injuries on July 3, 1996, when the motor vehicle she was driving was broadsided. The claimant testified that she was fully restrained in the vehicle, but the collision caused her to grab the steering wheel, and she was jolted forward and backward in the seat. (Tr. p. 95). At the time of the accident, the claimant had a 6 month old child and was pregnant. The claimant received emergency treatment for low back pain and a mild headache. No neck or upper extremity pain was reported. The claimant subsequently developed bilateral CTS and migraine headaches.

The claimant applied for a hearing on her request for medical benefits to treat the CTS and headaches. In support, the claimant presented the testimony of Dr. Emeis, Dr. Dewey, Dr. Foster, and Dr. Bjork.

The respondents presented the deposition testimony of Dr. Roth, who performed an independent medical examination of the claimant. Based upon his determination that there was no direct trauma to the claimant’s head or wrists, Dr. Roth found no causal relationship between the disputed medical problems and the motor vehicle accident. Dr. Roth also opined that the single gripping event was insufficient to cause a cumulative trauma induced CTS. Further, he opined that there was not a strong temporal relationship between the motor vehicle accident and the CTS because the claimant did suffer any bilateral CTS symptoms until approximately seven months after the accident. He opined that if the CTS was caused by the motor vehicle accident, the claimant would have experienced symptoms within 48 hours. Further, Dr. Roth doubted that a single traumatic event without any external signs of injury would result in a clinically undetectable inflammation and swelling that would never resolve. Instead, Dr. Roth opined that the more likely cause of the CTS was the claimant’s anatomy, age, pregnancy and breast-feeding postpartum. Concerning the claimant’s migraine headaches, Dr. Roth opined that the claimant’s genetic predisposition and personal stressors were as likely as the motor vehicle accident to be the cause of the claimant’s pain. (Roth depo. p. 43). Therefore, he opined that neither the headaches nor the CTS were caused by the motor vehicle accident.

Crediting Dr. Roth’s testimony, the ALJ found the claimant failed to prove a causal relationship between the CTS, the headaches and the industrial injury. Therefore, in an order dated June 11, 1999, the ALJ denied the claim for medical benefits. The claimant appealed, and on January 11, 2000, the ALJ entered a Supplemental Findings of Fact in support of the order. The claimant timely petitioned for review of the supplemental order.

On review, the claimant alleges the ALJ erred in crediting the testimony of Dr. Roth. We disagree.

We first reject the claimant’s contention that the ALJ erred in finding Dr. Roth is “qualified as a board certified physician in the fields of occupational and physical medicine.” The claimant’s argument is based on Dr. Roth’s admission that he is “board eligible” in the field of occupational medicine and only “board certified” in the field of internal medicine. (Roth depo. p. 5).

Unlike the ALJ’s June 11 order, the ALJ’s supplemental order states that Dr. Roth is “board certified in the field of internal medicine and is board eligible in occupational and physical medicine.” (Finding of Fact 9). Therefore, the order on review does not reflect the alleged error.

In any case, the claimant’s attorney accepted Dr. Roth as an expert in the fields of “occupational and physical medicine. (Roth depo. p. 7). Under these circumstances, the ALJ did not abuse his discretion by treating Dr. Roth as an expert in the fields of physical and occupational medicine. See Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993) (abuse of discretion exists where the order exceeds the bounds of reason, as where it is unsupported by the law or the evidence).

Next, the claimant contends that Dr. Roth’s bias in favor of the insurance industry rendered his opinions inherently unreliable. Dr. Roth admitted that he is the director of an occupational medicine department owned by another insurer, and that ninety percent of the patients treated in the department have work-related injuries. (Roth depo. pp. 53, 55). He also admitted that more than 80 percent of the time he is called to testify, he is an expert for the insurer. (Roth depo. p. 56). However, Dr. Roth denied that his financial status would be endangered without referrals from insurers and employers. (Roth depo. p. 65). He also denied being hired to opine that the disputed medical problems are not work-related. (Roth depo. p. 42). Further, Dr. Roth denied being “aligned” with the “industry side” of workers’ compensation. Rather, he stated that he considered himself aligned with the “protection and well-being of the worker.” (Roth depo. p. 65). We are not persuaded that these circumstances compel the conclusion that Dr. Roth was unable to issue an objective opinion about the cause of the claimant’s condition.

The claimant also contends that Dr. Roth’s testimony has no probative value because it is at variance with the actual facts. Specifically, the claimant contends the record is contrary to Dr. Roth’s assumption that the claimant sustained no direct trauma to her wrists. In support, the claimant relies on High v. Industrial Commission, 638 P.2d 818 (Colo.App. 1981), which holds that an expert opinion based on assumed facts at variance with the actual facts has no evidential efficacy. We disagree.

The medical record is highly conflicting. It was the ALJ’s sole prerogative as the fact finder to resolve the conflicts based upon his credibility determinations. See Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). The ALJ’s credibility determinations are binding unless the testimony of a particular witness, although direct and unequivocal, is “so overwhelmingly rebutted by hard, certain evidence directly contrary” that a fact finder would err as a matter of law in believing the witness. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997).

Dr. Roth defined “trauma” as a direct striking of the head or wrists or a forward thrusting which forcefully extended the wrists backwards of a sufficient degree to create a type of trauma to the wrists. (Roth depo. pp. 16, 32). Contrary to the claimant’s argument, Dr. Roth’s assumption that the claimant sustained no direct trauma to her head or wrists is consistent with the record. The collision was not severe enough to deploy the airbags and there is no evidence the claimant lost consciousness during the accident. The claimant did not remember hitting her head during the accident nor did she sustain any cuts or bruises to her head and wrists. (Tr. p. 121). The claimant alleged that she grabbed the steering wheel forcefully. However, she did not allege that she torqued her wrists or struck her wrists on anything during the accident.

Dr. Roth stated that when he asked the claimant, she reported no trauma to her wrists, hands or head from the motor vehicle accident. (Roth depo. p. 9). Further, Dr. Roth, noted that the emergency room records from the Memorial Hospital contain no evidence of trauma to the claimant’s wrists.

Dr. Foster agreed the claimant gave no history of any direct trauma to her wrists during the motor vehicle accident. (Tr. p. 53). Dr. Foster also admitted that it was unlikely that merely gripping the steering wheel would cause bilateral CTS. (Tr. p. 45). Dr. Bjork agreed that the emergency room records contained no reference to any direct head trauma. (Tr. p. 74). Therefore, we cannot say that the record is contrary to Dr. Roth’s assumption.

The claimant also challenges Dr. Roth’s assumption that the claimant demonstrated no external signs of injury resulting in clinically undetectable inflammation and swelling. The claimant contends she had detectable inflammation and swelling which she self-treated. However, the ALJ was not required to credit the claimant’s testimony. See Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970).

The ALJ implicitly found the medical records of Dr. Brassfield more persuasive. The claimant sought treatment from Dr. Brassfield on July 8, 1996. The claimant testified that she reported all injuries to the treating doctors. (Tr. p. 119). However, Dr. Brassfield’s report indicates that as of July 8, the claimant did not complain of any symptoms compatible with CTS. Instead, the claimant complained of tingling and numbness in her little and ring fingers of the left hand. Dr. Brassfield opined that these symptoms were indicative of cubital tunnel syndrome not CTS. Dr. Brassfield made no record of CTS symptoms until March 1997.

The claimant also contends Dr. Roth erroneously assumed there was no strong temporal relationship between the disputed medical problems and the motor vehicle accident. The claimant contends that contrary to Dr. Roth’s assumption, she experienced bilateral symptoms of CTS within a couple of weeks of the accident. Again we disagree.

Dr. Roth recognized that the claimant experienced the onset of left hand symptoms within 48 hours of the accident. (See Roth February 4, 1999). However, he rejected the notion that symptoms in the little and ring fingers were reflective of traumatic onset CTS. Furthermore, Dr. Roth’s assumption that the claimant did not experience bilateral CTS until sometime later is supported by the medical evidence. Dr. Roth’s opinions are buttressed by Dr. Foster’s testimony that symptoms from an indirect trauma to the wrists would manifest in a “few days.” (Tr. p. 54).

The claimant’s remaining arguments have been considered and are not persuasive. Therefore, we cannot say that as a matter of law, the ALJ erred in crediting Dr. Roth’s opinions. Dr. Roth’s testimony constitutes substantial evidence to support the ALJ’s finding that the claimant failed to prove a causal relationship between the motor vehicle accident and her condition. See Jachetta v. Milano, 147 Colo. 100, 362 P.2d 1065 (1961) (substantial evidence not determined by number of witnesses presented by each party). Consequently, it is immaterial that the record contains medical evidence which if credited, would support a contrary result. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).

IT IS THEREFORE ORDERED that the ALJ’s Supplemental Order dated January 11, 2000, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ Kathy E. Dean
______________________________ Dona Halsey

NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 1999. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.

Copies of this decision were mailed May 11, 2000to the following parties:

Diane Al-Abduljalil, 4105 Crocus Ln., Colorado Springs, CO 80918
Department of Corrections Personnel, 2862 S. Circle Dr., #400, Colorado Springs, CO 80906
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority dba Pinnacol Assurance —
Interagency Mail (For Respondents)
Barkley D. Heuser, Esq., 625 N. Cascade Ave., #300, Colorado Springs, CO 80903 (For Claimant)
Herbert S. Schiff, Esq., 111 S. Tejon, #700, Colorado Springs, CO 80903

BY: A. Pendroy