W.C. No. 4-515-362Industrial Claim Appeals Office.
April 9, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) insofar as the ALJ determined the claimant failed to overcome the Division-sponsored independent medical examination (DIME) physician’s finding of maximum medical improvement (MMI). We affirm.
In August 2001, the claimant suffered an admitted injury due to a reaction from a Hepatitis B vaccination required of her employment as a nurse. Following the injury, the claimant complained of a variety of symptoms including fatigue, neck and shoulder pain, and left ear pain.
The treating physician placed the claimant at MMI on October 3, 2001, and opined the claimant’s ongoing symptoms were not related to the industrial injury. The claimant requested a DIME. The DIME physician agreed with the treating physician’s determination of MMI and assigned a zero impairment rating. The claimant’s personal physician, Dr. Jewell, disagreed and recommended additional treatment.
The ALJ found that in May 2001 Dr. Jewell treated the claimant for injuries sustained in a motor vehicle accident which included wrist, neck and upper back pain. The claimant had also been treated for a gastric reflux disease, abdominal surgery and stress. Further, the ALJ found Dr. Jewell was unaware of any medical literature which supported his opinion that the claimant’s ongoing symptomatology was caused by the Hepatitis B vaccination booster.
In contrast, the ALJ determined the DIME physician’s opinions on the cause of the claimant’s residual symptoms is consistent with the opinions of the treating physician’s, Dr. Sharrar, and the medical reports of Dr. Weary and Dr. Shingledecker. Based on these findings the ALJ determined the claimant failed to present “clear and convincing” evidence to overcome the DIME physician’s finding of MMI. Consequently, the ALJ denied additional temporary disability benefits. The ALJ also denied permanent impairment benefits and future medical benefits.
On review the claimant contends the ALJ erred in failing to credit Dr. Jewell’s opinions. Further, the claimant contends that Dr. Jewell’s testimony is sufficient to overcome the DIME physician’s opinions on the issue of MMI. We reject these arguments.
MMI is defined as the point in time when the claimant’s condition is “stable and no further treatment is reasonably expected to improve the condition.” Section 8-40-201(11.5), C.R.S. 2002. Sections 8-42-107(8)(b)(I) (II), C.R.S. 2002, which govern this claim, provide that the initial determination of MMI is to be made by an authorized treating physician, and if either party disputes that determination, the claimant must undergo a DIME.
Under § 8-42-107(8)(b)(III), C.R.S. 2002 the DIME physician’s determination of MMI is binding unless overcome by “clear and convincing evidence” to the contrary. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). “Clear and convincing evidence” is evidence which establishes that it is “highly probable” the DIME physician’s MMI determination is incorrect. Metro Moving Storage Co. v. Gussert, supra.
It is now well established that determining the cause of the claimant’s condition is an inherent part of the diagnostic assessment which comprises the DIME process. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998); Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998). Accordingly, the party who disputes the DIME physician’s opinion on MMI must overcome the DIME physician’s opinion on causation by “clear and convincing evidence.”
The question of whether the claimant presented clear and convincing evidence to overcome the DIME physician’s opinion is a question of fact for 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. 2002; Postlewait v. Midwest Barricade, 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. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995); Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (ALJ free to credit one medical opinion to the exclusion of a contrary medical opinion). In applying the substantial evidence test, we may not substitute our judgment for that of the ALJ concerning the credibility of the witnesses or the sufficiency and probative weight of the evidence. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993); Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992).
The ALJ’s pertinent findings of fact are supported by substantial evidence in the record and, therefore, must be upheld. Further, the findings support the conclusion the claimant failed to prove it is highly probable the DIME incorrectly found the claimant to be at MMI. Consequently, it is immaterial that Dr. Jewell’s testimony, if credited, might support a contrary conclusion. See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo.App. 1999) (existence of conflicting evidence does not lessen the import of substantial evidence in favor of a conclusion).
The claimant is obviously dissatisfied with the ALJ’s credibility determinations. However, it was the ALJ’s sole prerogative to resolve the conflict between the medical experts. Cf. Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941) (ALJ considered to possess specialized knowledge which renders him competent to evaluate medical evidence and draw plausible inferences from it). Under these circumstances, we cannot say that as a matter of law, the ALJ erroneously rejected the testimony of Dr. Jewell. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000) (a credibility finding may not be disturbed 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).
IT IS THEREFORE ORDERED that the ALJ’s order dated October 8, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
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. 2002. 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 April 9, 2003 to the following parties:
Elizabeth Balboa, 2645 Boleyn Dr., Colorado Springs, CO 80920
Vicki Alexander, Memorial Hospital, 1400 E. Boulder St., Colorado Springs, CO 80909
James A. May, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
Susan K. Reeves, Esq., 111 S. Tejon St., #700, Colorado Springs, CO 80903 (For Respondent)
BY: A. Hurtado