W.C. No. 4-752-932.Industrial Claim Appeals Office.
August 25, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated February 7, 2011 that determined the claimant had not overcome the opinion of the Division Independent Medical Examination (DIME) and denied certain medical benefits. We affirm.
The claimant suffered an industrial injury on March 1, 2008. The claimant was unloading a stack of chairs and they tumbled down onto her head. The claimant was initially diagnosed with a closed head injury, but consistently described neck pain and headaches. The claimant received various medical treatments including psychological evaluations.
On January 13, 2010, Dr. McCranie determined that the claimant had reached maximum medical improvement (MMI) for her industrial injuries. Dr. McCranie assigned the claimant a 15 percent whole person impairment rating. The rating consisted of eleven percent for the cervical spine and five percent for headaches. Dr. McCranie recommended certain medical maintenance care.
The claimant underwent a DIME on July 14, 2010. The DIME physician noted that the claimant exhibited “a certain element of factitious presentation.” The DIME physician found that there was no significant injury to the claimant’s neck and her MRI was normal. The DIME physician opined that the vestibular complex has resolved and the headaches were non-ratable and probably non-physiologic. The DIME physician assigned the claimant seven percent whole person impairment for rhizotomies that the
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claimant had undergone. The DIME physician agreed with Dr. McCranie’s determination of MMI. The claimant brings this appeal.
I.
The claimant first contends that the ALJ erred by stating in his order that the claimant’s request for a change of physician to Dr. Bennett was denied. The claimant contends that this constitutes error because she did not request a change of treating physician; rather, she objected to a change of treating physician from Dr. Bennett. We are not persuaded to interfere with the order.
We note that in the claimant’s Proposed Findings of Fact and Conclusions of Law, the claimant set forth the issue as whether the claimant’s maintenance medical care should be changed from Dr. Bennett to Dr. McCranie. The respondents argue that by continually seeking her maintenance treatment with Dr. Bennett as opposed to Dr. McCranie, the claimant was effectively seeking de facto change of her primary treating physician to Dr. Bennett.
There may have been some confusion in the ALJ’s discussion of the claimant’s entitlement to treatment recommended by Dr. Bennett. However, an ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law. It is sufficient for the ALJ to enter findings concerning the evidence he considers dispositive of the issues, and evidence and inferences inconsistent with the order are presumed to have been rejected Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000).
In our view, whether or not the issue of maintenance medical care is discussed in terms of changing care from Dr. McCranie to Dr. Bennett, the essential issue remains whether Dr. Bennett’s proposed medical treatment was reasonable and necessary and therefore should be granted. We have no difficulty in discerning the ALJ’s dispositive findings and determination on this issue. The ALJ concluded that the claimant had failed to make a proper showing that she was entitled to receive the requested medical maintenance treatment through Dr. Bennett.
On the relevant issue, the ALJ made the following pertinent findings of fact with record support. On May 12, 2009, Dr. McCranie became the claimant’s primary authorized treating physician (ATP) after the claimant had received treatment from numerous other physicians. The claimant initially saw Dr. Bennett on February 13, 2009. Dr. Bennett ultimately recommended drug treatment with Topomax for the claimant’s headaches, rhizotomy treatments for the claimant’s spinal cord facet injuries, and a peripheral nerve stimulator trial in an attempt to relieve the claimant’s occipital nerve
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induced headaches. However, numerous other physicians expressed concerns about Dr. Bennett’s treatment recommendations. The recommendation from Dr. Bennett for a spinal cord stimulator was particularly contentious. The ALJ found that the circumstances did not warrant a change of physician to Dr. Bennett for his recommended medical maintenance treatment.
Thus, the ALJ was not persuaded the future medical treatment the claimant sought was appropriate under the circumstances. A claimant may receive medical treatment reasonably necessary to relieve the effects of a claimant’s industrial injury or prevent further deterioration of the claimant’s condition See § 8-42-101(1)(a), C.R.S.; see also Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988) (authorizing receipt of reasonably necessary medical treatment after permanent disability award). However, the burden of proof was on the claimant to establish entitlement to Grover medical benefits. Grover v. Industrial Commission., supra; Cordova v. Foundation Builders Inc. W. C. No. 4-296-404 (April 20, 2001). In order to receive such benefits, at the time permanent disability benefits are determined the claimant must present substantial evidence that future medical treatment is or will be reasonably necessary to relieve the claimant from the effects of the injury or to prevent deterioration of the claimant’s condition. See Hanna v. Print Expediters Inc., 77 P.3d 863 (Colo. App. 2003); Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo. App. 1995). The question of whether the claimant met the burden of proof to establish entitlement to ongoing medical benefits is one of fact for determination by the ALJ. Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo. App. 1999) Renzelman v. Falcon School District, W. C. No. 4-508-925 (August 4, 2003).
The ALJ noted the concerns of numerous physicians concerning Dr. Bennett’s treatment recommendations. See
Tr. at 59 (Dr. Bennett acknowledged concerns by other physicians). The ALJ found that the DIME physician opined that the claimant was not a candidate for a spinal cord stimulator. The ALJ specifically found that that DIME physician made the following statement:
I am disturbed by Dr. Bennett’s lack of attention to the variety of psychiatric manifestations of this patient’s illness, the symptom magnification behaviors, the inconsistencies, her previous psychiatric hospitalizations, and the multiple hospitalizations without physiologic basis that this patient underwent around this illness. I completely agree with Dr. McCranie that this patient is not a candidate for a spinal cord stimulator for multiple reasons.
Exhibit A at 16.
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The ALJ was persuaded by the opinions of Dr. Moe in concluding that the claimant had failed to establish that an occipital nerve stimulator trial was reasonable and necessary to cure or relieve the claimant from the effects of her industrial injury. Dr. Moe concluded that the claimant was not an appropriate candidate for an invasive procedure such as an occipital nerve stimulator because her bodily injury was not “fundamentally responsible” for her symptoms. Exhibit D at 99. Dr. Moe explained that the claimant was “highly susceptible to placebo response” from invasive treatments and her reaction was likely to mislead treatment providers. Exhibit D at 99.
Dr. McCranie also was concerned with the recommendations of Dr. Bennett. Exhibit B at 30. Dr. McCranie agreed with Dr. Moe’s recommendation against invasive procedures for the claimant. Exhibit B at 30. Further, Dr. Aschberger, relying in part upon the opinions of Dr. McCranie, Dr. Moe, and the DIME physician, testified that the claimant was not an appropriate candidate for an occipital nerve stimulator. See Dr. Aschberger Exhibit C at 59-60, 66; Tr. at 74-81.
The testimony and reports of Dr. McCranie, Dr. Aschberger, Dr. Moe, and the DIME physician constitute substantial evidence supporting the ALJ’s determination to deny the requested medical treatment proposed by Dr. Bennett. Therefore, we are bound by such determination. Section 8-43-301(8), C.R.S.
The claimant further argues that the ALJ committed reversible error by effectively “deauthorizing” Dr. Bennett, who was a treating physician. The claimant argues that such deauthorization is not permitted. We again are not persuaded to interfere with the ALJ’s order.
The term “authorized treating physician” refers to a physician who is legally authorized to treat the industrial injury at the respondents’ expense and includes all physicians who treat the claimant pursuant to a referral from an authorized treating physician. See § 8-42-101 C.R.S.; Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d. 680 (Colo. App. 1999) One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 501 (Colo. App. 1995); Greager v. Industrial Commission, 701 P.2d 168 (Colo. App. 1985). The claimant may have multiple authorized treating physicians. Zarr v. Department of Corrections, W. C. No. 4-138-655 (July 17, 1996); Rohr v. Interim Health Care, W.C. No. 4-177-445 (September 13, 1994).
As noted by the respondents, the present case is similar to the question raised in Flores v. Promise Keepers
W.C. No. 4-724-919 (February 23, 2011), involving “deauthorization” of a treating physician. As we read the order, the ALJ did not deauthorize Dr. Bennett. Instead, the ALJ concluded that the respondents had demonstrated that the proposed specific treatment by Dr. Bennett was not reasonable and
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necessary to cure or relieve the effects of the industrial injury. However, this determination does not prevent Dr. Bennett from providing other treatment that may be reasonable and necessary to treat the claimant’s injury.
II.
The claimant next specifically contends that the ALJ erred in denying her request for an occipital nerve stimulator trial. This is essentially the same argument that was dealt with above. Again, entitlement to the requested occipital nerve stimulator trial is dependent on proof that the treatment is reasonable and necessary to cure and relieve the effects of the industrial fall. Section 8-42-101(1), C.R.S.; see also Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo. App. 1997). Whether the claimant sustained her burden of proof is a factual question for resolution by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997).
Because these questions are factual in nature, we are bound by the ALJ’s determinations in this regard if they are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. As determined above, in our opinion the ALJ’s determination to deny the request for the occipital nerve stimulator is supported by substantial evidence. Therefore, we are not persuaded that the ALJ committed reversible error.
III.
The claimant finally contends that the ALJ erred in determining that she failed to produce clear and convincing evidence to overcome the DIME physician’s opinion that the claimant reached MMI on January 13, 2010 with a seven percent whole person impairment rating. The claimant again argues that her request for an occipital nerve stimulator trial should have been granted.
As the claimant suggests, a DIME physician’s opinion regarding MMI or medical impairment must be overcome by clear and convincing evidence. Section 8-42-107(8)(b)(III) — (8)(c), C.R.S. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186, 189 (Colo. App. 2002); Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590, 592 (Colo. App. 1998) see also Leprino Foods Co. v. Indus. Claim Appeals Office, 134 P.3d 475, 482 (Colo. App. 2005) (DIME physician’s opinions concerning MMI and permanent medical impairment are given presumptive effect and are binding unless overcome by clear and convincing evidence). “Clear and convincing evidence means evidence which is stronger than a mere `preponderance; `it is evidence that is highly probable and free from serious or substantial doubt.”Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 414 (Colo. App. 1995). Therefore, the party challenging a DIME
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physician’s conclusion must demonstrate that it is “highly probable” that the DIME impairment rating or MMI finding are incorrect Qual-Med, 961 P.2d at 592. A party has meets this burden if the party demonstrates that the evidence contradicting the DIME is “unmistakable and free from serious or substantial doubt.”Leming v. Industrial Claim Appeals Office, 62 P.3d 1015, 1019 (Colo. App. 2002).
Whether a party has met the burden of overcoming a DIME by clear and convincing evidence is a question of fact for the ALJ to determine. Metro Moving Storage, 914 P.2d at 414. We must uphold the ALJ’s factual determinations if the decision is supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. Christie v. Coors Transp. Co., 919 P.2d 857, 860 (Colo. App. 1995), affd, 933 P.2d 1330 (Colo. 1997).
The claimant asserts that her testimony and the testimony of Dr. Bennett overcame the finding of MMI by the DIME physician. The claimant essentially asks us to reweigh the evidence to reach a finding contrary to the ALJ’s conclusion. However, we may not reevaluate the evidence. See Metro Moving Storage Co. v. Gussert, supra. The claimant points out expert testimony that supports her claim, but 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).
The reports and opinions credited by the ALJ constitute substantial evidence supporting the determination that the claimant had failed to produce clear and convincing evidence to overcome the opinion of the DIME physician.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 7, 2011 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Dona Rhodes
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BROOKE HESTER, 9501 W INDORE DRIVE, LITTLETON, CO, (Claimant).
KOHL’S CORPORATION, Attn: BETH HAYDEN, MENOMONEE FALLS, WI, (Employer).
SEDGWICK CMS, Attn: CRAIG CLAXTON, LEXINGTON, KY, (Insurer).
HUBERT T. MORROW II, Attn: HUBERT T. MORROW, ESQ., C/O: ATTORNEY AT LAW, LITTLETON, CO, (For Claimant).
RITSEMA LYON, PC, Attn: KELLY F. KRUEGEL, ESQ., DENVER, CO, (For Respondents).
KOHL’S, GOLDEN, CO, (Other Party).
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