W.C. No. 4-525-187.Industrial Claim Appeals Office.
November 28, 2005.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ) dated June 20, 2005, which found that the Division-sponsored independent medical examination (DIME) physician’s opinion had been overcome by clear and convincing evidence. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant sustained a compensable industrial injury to her back while lifting a patient on December 7, 2001. The authorized treating physician (ATP), Dr. Mitchell, placed the claimant at maximum medical improvement (MMI) on December 7, 2003, with a permanent impairment rating of 26 percent. This included the back, but no rating for depression or neurogenic bladder. A DIME was conducted by Dr. Richman, who agreed with the date of MMI given by the ATP. Dr. Richman assigned the claimant a 24 percent whole person permanent impairment rating, which included a 3 percent psychological rating and a 5 percent rating for neurogenic bladder. The claimant was also examined at her own request by Dr. Hall and Dr. Hughes who gave opinions on the claimant’s impairment and found her to be at MMI. Further, Dr. Jenks assigned the claimant an impairment rating and found her to be at MMI.
However, the claimant was seen by Dr. Bickel, a urologist, who offered the opinion that the claimant has not reached MMI for her bladder condition. Dr. Bickel diagnosed the claimant with bladder instability, intrinsic weakness of the urethral sphincter, and detrusser sphincter dyssynergia. Dr. Bickel gave the opinion that these conditions, with the exception of the intrinsic weakness of the urethral sphincter, were a result of either her industrial injury or the surgery performed as a result of the industrial injury. Dr. Bickel recommended various treatments.
The ALJ found that the claimant’s bladder instability and detrusser sphincter dyssynergia are related to her industrial injury. The claimant was found to have credibly testified that she currently suffers significant symptoms, including urinary frequency, accidents with coughing, sneezing or laughing, and that she must wear a pad, restrict fluid intake, and limit exercise.
Noting that Dr. Bickel is an expert in this area, the ALJ found his opinion “very persuasive” concerning MMI. Specifically, the ALJ found that the claimant’s bladder condition is not resolved, she is not at MMI for that condition, and that she requires further treatment as recommended by Dr. Bickel. The ALJ further determined that the DIME physician’s opinion regarding MMI for the bladder condition is highly probably incorrect and had been overcome by clear and convincing evidence.
On review, the claimant argues that Dr. Brickel’s reports and testimony do not constitute substantial evidence to support the finding that the claimant overcame the DIME physician’s rating by clear and convincing evidence. In support of this contention, the respondent cites evidence from the other treating and examining physicians. The claimant also asserts that Dr. Brickel admitted that bladders can change over time and it is possible that the test by the DIME physician could have shown that the claimant does not have a hypertonic bladder. We find no error.
The respondents argue that the ALJ erred in finding the DIME opinion had been overcome because none of the doctors testified that the DIME physician’s opinion was scientifically incorrect or violative of the American Medical Association Guidelines to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides). However, we are not persuaded that was required.
As the respondents point out, the finding of the DIME physician concerning the claimant’s maximum medical impairment (MMI) must be overcome by clear and convincing evidence. Section 8-42-107(8)(b)(III), C.R.S. 2005; Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). However, ultimately, the question of whether the DIME physician’s opinion on MMI has been overcome by clear and convincing evidence is a question of fact for determination by the ALJ. McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263
(Colo.App. 1999). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2005. This is a narrow standard of review which requires us to view the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office 81 P.3d 1117 (Colo.App. 2003) In particular, the relative weight and credibility to be assigned competing expert medical opinions is the ALJ’s province as fact-finder. Cordova v. Industrial Claim Appeals Office, supra.
We disagree with the claimant’s argument that Bickel’s opinions do not constitute substantial evidence to support the ALJ’s finding that the DIME physician’s rating was overcome. The ALJ was persuaded by Dr. Bickel’s expertise in urology, the specialty in issue. Moreover, the ALJ could properly rely on Dr. Bickel’s performance of tests to diagnose the claimant as having bladder instability and detrusser sphincter dyssynergia as a result of either the industrial injury or the surgery performed to treat the industrial. The weight to be assigned Dr. Bickel’s opinion was for the ALJ.
It is true a good deal of evidence exists in the record that could support a contrary result. However, that fact does not justify interference with the ALJ’s credibility determinations or her assessment of the probative value of the evidence. Wilson v. Industrial Claim Appeals Office, supra. The claimant correctly points out that the existence of substantial evidence does not depend upon the number of witnesses in favor of or in opposition to a certain proposition. Jachetta v. Milano, 147 Colo. 100, 362 P.2d 1065 (1961) Dr. Hall, a specialist in physical medicine and rehabilitation, whose opinion respondents cite as placing the claimant at MMI, agreed in his testimony that he would defer to the urologist on the issue of whether the claimant had reached MMI for the hypertonic neurogenic bladder. (Tr. p. 26).
The respondents’ assertions notwithstanding, the DIME physician agreed that the claimant had a bladder condition that was caused by the industrial injury, and disagreed only concerning whether the claimant had reached MMI with respect to that condition. The ALJ could properly view the opinion of Dr. Brickel, an expert in the field, as clear and convincing evidence that there were treatments available that could improve the claimant’s condition. In any event, Dr. Bickel’s testimony was to the effect that bladder conditions change over time, and he testified as to what the claimant’s condition was at the time Dr. Bickel saw her in February 2005, which is after the DIME physician saw her in October 2004. Under these circumstances, we perceive no basis on which to interfere with the ALJ’s finding.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 20, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Dona Halsey
____________________________________ Tom Schrant
Sheila Castellini, Raton, NM, Mount San Rafael Hospital, Trinidad, CO, Mary Ann Donelson, Support Services, Inc., Greenwood Village, CO, DIME Unit, Division of Workers’ Compensation — Interagency Mail Rick Paul Lopez, Esq., Colorado Springs, CO, (For Claimant).
Benjamin E. Tracy, Esq., Denver, CO, (For Respondents).