W.C. No. 4-669-749.Industrial Claim Appeals Office.
May 5, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated December 30, 2009 that denied the claimant’s claim for medical benefits in the form of authorization for right shoulder surgery by Dr. Jinkins. We affirm.
The claimant sustained an industrial injury on November 26, 2005 when she slipped and fell. An authorized treating provider, Dr. Quick, determined that the claimant was at MMI for her industrial injuries on September 22, 2008. Dr. Quick assigned the claimant an impairment rating for injuries to her right thumb, right wrist, and left wrist. Dr. Quick opined that the injuries related to claimant’s industrial injury were left rotator cuff tear, left wrist injury, right wrist, right thumb pain, left elbow contusion, right knee contusion and a minor exacerbation of a pre-existing chronic depression. The respondents filed a Final Admission of Liability (FAL) consistent with the findings of Dr. Quick.
The claimant objected to the FAL and requested a Division-sponsored independent medical examination (DIME). The DIME was performed on March 5, 2009. The DIME physician opined that the claimant’s right arm and shoulder girdle pain were not causally related to her industrial accident.
On May 19, 2009, the claimant underwent an evaluation with Dr. Jinkins. Dr. Jinkins referred the claimant for an MRI of her right shoulder. The MRI on May 22, 2009 revealed a “tiny interstitial tear” of the supraspinatus tendon. On June 16, 2009, Dr. Jinkins recommended right shoulder surgery. On June 22, 2009, the claimant returned to
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Dr. Quick who again opined the he did not believe the claimant’s right shoulder injuries were causally related to her work accident.
The DIME physician’s testimony revealed that up until the time of her deposition she had not been aware that the May 2009 MRI showed a partial tear of the right rotator cuff. However, the DIME physician still opined that the right shoulder rotator cuff surgery recommended by Dr. Jinkins was not reasonably necessary to cure or relieve the effects of the work injury and that the claimant was at MMI for the work injury. The ALJ found that nobody knew how or when the right cuff tear occurred. The ALJ concluded that the claimant had failed to prove by clear and convincing evidence that the DIME physician erred in determining that the claimant was at MMI for the work injury and that the right rotator cuff surgery was not reasonably necessary to cure or relieve the effects of the work injury.
I.
The claimant first contends that the ALJ erred in requiring her to overcome the opinion of the DIME physician by clear and convincing evidence. The claimant contends that it was error to require her to establish the compensable nature of her injuries by clear and convincing evidence. The claimant contends the ALJ erred by not using a preponderance of the evidence standard. The claimant seeks an order of remand requiring the ALJ to consider properly the facts relating to compensability.
As we understand the claimant’s argument, she contends that the ALJ misapprehended the issue before him as being one of overcoming the opinions of the DIME physician by clear and convincing evidence. The claimant, citing Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000), argues that the fact that the DIME had been performed before the issue of compensability of the right shoulder had been established is inconsequential and therefore she was not bound to overcome the opinion of the DIME physician by clear and convincing evidence.
We are not persuaded that the ALJ held the claimant to the wrong standard of proof. In our view, the issue of causation here involved an inquiry into the relatedness of particular components of a claimant’s overall impairment. Here the component in question was the claimant’s right shoulder injury. In such circumstances, the opinions of the DIME physician carry presumptive effect. See Eller v. Industrial Claim Appeals Office, 224 P.3d 397, (Colo. App. 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).
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Consequently, the DIME physician’s opinion on this issue is not entitled to special or presumptive weight. Faulkner v. Industrial Claim Appeals Office, supra.
However, here unlike the situation in Faulkner, the existence of a compensable injury was not in question at the time of the hearing. Indeed, the insurer had admitted liability. The issue before the ALJ was liability for medical benefits for the claimant’s right shoulder surgery and whether she was at MMI. The DIME physician expressed an opinion on the extent of the industrial injury. Therefore, the issue of the cause of claimant’s right shoulder injury and her need for additional treatment for that condition was properly before the DIME physician, and her opinions on the causation issue became binding unless overcome by clear and convincing evidence. Martinez v. Senior Resource Center, Inc., W.C. No. 4-748-216 (October 14, 2009). Consequently, we perceive no error in the ALJ’s application of the clear and convincing evidence standard instead of the preponderance of the evidence in deciding the causation issue before him.
II.
The claimant next argues that even assuming that the clear and convincing standard was appropriately applied, the DIME physician’s opinion concerning MMI is subject to conflicting inferences, which the ALJ failed to resolve. The claimant argues that the DIME physician’s final opinion as expressed at the hearing was that overuse by the claimant of her right upper extremity was directly related to the injury to her left upper extremity in the industrial accident. Therefore, the claimant requests a remand for the ALJ to make further findings of fact. The claimant also argues that the DIME physician erred as to her diagnosis. The claimant contends that, given the statements of the DIME physician, the evidence supports only the conclusion that the right shoulder condition is compensable. We are not persuaded that a remand is necessary to determine the DIME physician’s true opinion. We are also not persuaded that the evidence compels the conclusion that the right shoulder condition is compensable.
As we understand the claimant’s argument, she is referring to the clearly established principal that if the DIME physician offers ambiguous or conflicting opinions concerning maximum medical improvement or impairment, the ALJ must resolve the ambiguity and determine the DIME physician’s true opinion. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000); Stephens v. North Air Package Express Services, W. C. No. 4-492-570 (February 16, 2005), aff’d, Stephens v. Industrial Claim Appeals Office (Colo. App. 05CA0491, January 26, 2006) (not selected for publication). In so doing, the ALJ should consider all of the DIME physician’s written and oral testimony. Lambert Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656, 659 (Colo. App. 1998). A DIME physician’s finding of MMI and permanent impairment consists not only of the initial report, but also any subsequent
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opinion given by the physician. See Andrade v. Industrial Claim Appeals Office, 121 P.3d 328 (Colo. App. 2005) (ALJ properly considered DIME physician’s deposition testimony where he withdrew his original opinion of impairment after viewing a surveillance video) see also, Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082 (Colo. App. 2002) (noting that DIME physician retracted original permanent impairment rating after viewing videotapes showing the claimant performing activities inconsistent with the symptoms and disabilities she had reported). The issue of the DIME physician’s actual opinion is a factual one. We may not interfere with the ALJ’s resolution of these issues if supported by substantial evidence. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra.
Here the ALJ entered extensive findings concerning the testimony and opinions of Dr. Campbell. Those findings include the following. The DIME physician had not been aware that the May 2009 MRI showed a partial tear of the right rotator cuff. The DIME physician admitted that the claimant’s age, Type III acromion, and preexisting degenerative changes could result in a right rotator cuff tear from the November 2005 fall onto her outstretched arm. The DIME physician, however, explained that the temporal delay in reporting symptoms in the right shoulder made it unlikely that the tear occurred at that time. The DIME physician also agreed with Dr. Jinkins that trauma to the right shoulder might accelerate the degenerative process in the rotator cuff. The DIME physician concluded, however, that the medical records did not provide a sufficient indication of an accelerating cuff tear in this case. The DIME physician noted that the time frame of the claimant’s symptoms did not make it probable that overuse after the work injury led to the cuff tear. The claimant’s 2006 and 2008 right shoulder pain was more likely due to myofascial pain, as demonstrated by her improvement with treatment. Consequently, the DIME physician determined that the right shoulder rotator cuff surgery recommended by Dr. Jinkins was not reasonably necessary to cure and relieve the effects of the work injury and the claimant is at MMI for the work injury. In our view, the ALJ made ample findings concerning the true opinion of the DIME physician. Therefore, no remand is necessary.
With regard to the claimant’s contention that the evidence compels the conclusion that the right shoulder condition is compensable we note that the question of whether the claimant had overcome the DIME by clear and convincing evidence is one of fact for the ALJ’s determination Metro Moving Storage Co. v. Gussert, supra. The standard of review is whether the ALJ’s findings of fact are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S Metro Moving Storage Co. v. Gussert, 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. Metro Moving Storage Co. v. Gussert, supra. This standard of review is deferential and the scope of our review is “exceedingly narrow.” Id
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The ALJ specifically credited the testimony of the DIME physician, observing that her demeanor was that of a careful, attentive, conscientious witness. The weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). Beyond the DIME physician’s own testimony there was other evidence supporting a determination that the claimant had not overcome the DIME physician’s opinion.
Dr. McPherson opined that the claimant’s right shoulder injuries could not be attributable to trauma. Dr. McPherson further opined that he did not believe the claimant’s right shoulder injuries result from overcompensation from her left shoulder. Dr. Cebrian reviewed the records from Dr. Jinkins as well as the new MRI report regarding the claimant’s right shoulder. Dr. Cebrian opined that the findings on the MRI were not caused by the claimant’s November 26, 2005 fall and were additionally not caused as result of overcompensation. Dr. Quick opined that he did not believe the claimant’s right shoulder injuries were causally related to the claimant’s work accident. In our opinion, the ALJ’s determination is supported by substantial evidence in the record.
IT IS THEREFORE ORDERED that the ALJ’s order issued December 30, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
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JOSEPHINE GIANZERO, COLO SPRINGS, CO, (Claimant).
WAL-MART STORES, INC., Attn: BETH MCELROY, COLO SPRINGS, CO, (Employer).
AMERICAN HOME ASSURANCE, Attn: LEA ANN GAVELLAS, C/O: CMI, BENTONVILLE, AR, (Insurer).
STEVEN U. MULLENS, P.C., Attn: STEVEN U. MULLENS, ESQ., COLO SPRINGS, CO, (For Claimant).
RITSEMA LYON, P.C., Attn: MARGARET A METZGER, ESQ., DENVER, CO, (For Respondents).
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