W.C. No. 4-710-119.Industrial Claim Appeals Office.
February 25, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated September 29, 2010, that found the respondents had overcome the Division-sponsored independent medical examination (DIME) physician’s opinion on maximum medical improvement (MMI), and denied the claimant’s request for surgery. We affirm.
The claimant suffered a compensable injury. The respondents filed a General Admission of Liability admitting for temporary disability benefits. At the request of the respondents the claimant underwent an 18 month DIME on October 6, 2009. The DIME physician stated that the claimant was a reasonable candidate for lumbar surgery if she lost weight. The DIME physician stated that the lumbar surgery could be reconsidered if the claimant should lose 100 pounds. The DIME physician stated that the claimant was not at MMI. The respondents applied for hearing on the issue of overcoming the DIME physician’s opinion as to MMI.
The ALJ found that the respondents had overcome the DIME physician’s opinion on MMI by clear and convincing evidence and established that the date of MMI was January 1, 2008. The ALJ further found that the proposed treatment at the time of the hearing was not reasonably expected to improve the claimant’s condition. The claimant brings this appeal.
I.
The claimant contends that the ALJ erred in finding respondents had overcome the DIME physician’s opinion that she was not at MMI. Pursuant to § 8-42-107(8)(b)(III), C.R.S, a DIME physician’s finding of MMI is binding on the parties unless overcome by
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clear and convincing evidence. Montoya v. Industrial Claim Appeals Office 203 P.3d 620 (Colo. App. 2008); Brownson-Rausin v. Industrial Claim Appeals Office 131 P.3d 1172 (Colo. App. 2005). “Clear and convincing” evidence has been defined as evidence which demonstrates that it is “highly probable” the DIME physician’s opinion is incorrect. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo. App. 1998); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). The question whether the claimant has 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
Dr. Weaver expressed the opinion that the claimant was at MMI on January 1, 2008. The ALJ accepted this date in determining that the opinion of the DIME physician had been overcome. The claimant argues that the ALJ erred in relying upon the opinion of Dr. Weaver and that his opinions were insufficient as a matter of law to support the ALJ’s findings.
The claimant points to testimony from Dr. Weaver that the claimant’s condition is a natural progression of a degenerative process and because there was no occupational disease, then the surgery would be related to degenerative process before the date of the industrial injury. As we understand this argument, the claimant contends that although the statement by Dr. Weaver is, in itself, logically true, his opinion is not compelling because ALJ Martinez had previously held that the claimant’s strenuous work duties on December 20-21, 2007 caused an occupational disease.
However, we first note that there was other testimony and evidence from Dr. Weaver. In particular the ALJ found the following. Dr. Weaver examined the claimant on February 4, 2009 and opined that the claimant would not be a candidate for surgery unless her condition changed significantly. Dr. Weaver stated that the claimant had been at MMI since January 1, 2008. The claimant does not challenge that Dr. Weaver expressed these opinions. In our view, this testimony from Dr. Weaver, independent of opinions on the cause of the claimant’s condition, supports the ALJ’s conclusion. We note that to the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
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Further, the claimant assumes that the ALJ’s decision was based exclusively on Dr. Weaver’s opinions. This is not the case. The ALJ made additional findings of fact and these do not appear to be in dispute. The DIME physician on January 18, 2010, stated that surgery was not a reasonable option. Zuehlsdorff Depo. (1/18/2010) at 8. The DIME physician further stated that surgery was not reasonable if the claimant continued to smoke. Zuehlsdorff Depo. (8/16/2010) at 24-25. Dr. Tice stated that the claimant was an extremely high surgical risk because of her obesity, diabetes, and degenerative heart disease. Exhibit C at 27. The claimant underwent the gastric bypass procedure and at the time of the hearing had lost sixty pounds. The DIME physician stated that the claimant might be a reasonable surgical candidate if she were able to lose 100 pounds. Exhibit A. The ALJ determined that she had not lost that weight and that surgery was still not reasonable. The ALJ further found that it was highly likely that the claimant’s condition was presently stable, and no further treatment was reasonably expected to improve her condition. The ALJ concluded that the claimant was at MMI on January 1, 2008. Therefore, given these findings, even if the ALJ’s reliance upon Dr. Weaver was misplaced we are not persuaded that a remand or reversal is necessary for there is, in our opinion, substantial evidence in the record to support the ALJ’s conclusion without Dr. Weaver’s opinions.
Moreover, simply because there was an order finding that the claimant had suffered an occupational disease does not mean that the issue of the causal connection between the proposed surgery and the industrial injury has been resolved. An admission of liability or an order of compensability does not amount to an admission or order that all subsequent medical treatment is causally related to the industrial injury, or that all subsequent treatment is reasonable and necessary Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo. App. 1997); Putman v. Putnam Associates, W. C. No. 4-120-307 (August 14, 2003). Even if the respondents are obligated by admission or order to pay ongoing medical benefits they always remain free to challenge the cause of the need for continuing treatment and the reasonableness and necessity of specific treatments. Hanna v. Print Expediters Inc. 77
P.3d 863 (Colo. App. 2003); Davis v. ABC Moulding, W.C. No. 3-970-332 (September 19, 1999). Therefore, although ALJ Martinez had previously determined that the claimant suffered from an occupational disease the respondents were nevertheless still entitled to challenge the reasonableness and necessity of the proposed surgery and the connected issue of the claimant’s achievement of MMI. We are persuaded that substantial evidence supports the ALJ’s decision that the opinion of the DIME physician had been overcome.
II.
The claimant next contends that the ALJ erred in concluding that lumbar surgery is not medically reasonable to cure and relieve the effects of the injury. We again are not persuaded that the ALJ committed reversible error.
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Section 8-42-101(1)(a), C.R.S, provides that respondents are liable for authorized medical treatment that is reasonable and necessary to cure or relieve the effects of the industrial injury. Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo. App. 1999) Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo. App. 1990). Where the claimant’s entitlement to benefits is disputed, the claimant has the burden to prove a causal relationship between the work-related injury or disease and the condition for which benefits or compensation are sought. 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.; City of Durango v. Dunagan supra. The existence of evidence which, if credited, might permit a contrary result also affords no basis for relief on appeal Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002).
The claimant argues that the respondents also failed to overcome the opinion of the DIME physician that surgery is necessary. The claimant argues that the clear and convincing medical evidence demonstrates that the claimant is not at MMI and there is general medical agreement that she reasonably requires surgery. We are persuaded that the record contains substantial evidence supporting the ALJ’s conclusion.
The claimant again argues that the opinion of Dr. Weaver is of no consequence because he disagrees with the conclusion of law that the claimant had a compensable occupational disease. Consequently, the claimant further argues that the ALJ erred in crediting the legally and factually flawed conclusions of Dr. Weaver regarding MMI. However, as noted above, we are not persuaded that the ALJ was compelled to discount the opinions of Dr. Weaver.
Further, as we read the order it appears the ALJ was not even persuaded that the DIME physician was of the opinion that the claimant should undergo the surgery at the time of the hearing. The ALJ found with record support that the DIME physician opined that if the patient lost approximately 100 pounds within the next year that reconsideration of surgery would be reasonable. Exhibit A at 3. The DIME physician was under the impression that the claimant had quit smoking and that smoking would limit the ability to heal correctly after surgery. Exhibit A at 3. Zuehlsdorff Depo. at 13. However, the ALJ found that the claimant had not lost the weight as recommended by the ALJ and there was evidence that the claimant had not quit smoking. Exhibit P at 158.
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In any event the opinions of Dr. Weaver and Dr. Tice constitute sufficient evidence supporting the ALJ’s determination that the proposed surgery was not reasonable and necessary to cure or relieve the effects of the industrial injury at this time and to deny the claimant’s request for surgery. 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).
IT IS THEREFORE ORDERED that the ALJ’s order dated September 29, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
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JONNI MCFADDEN, 825 BUNTING AVENUE, GRAND JUNCTION, CO, (Claimant).
SUN HEALTH CARE, ALBUQUERQUE, NM, (Employer).
AMERICAN HOME ASSURANCE, Attn: SANDRA O’BRIEN/TRUDY SPRATTA, C/O: BROADSPIRE, DENVER, CO, (Insurer).
WITHERS SEIDMAN RICE MUELLER, PC, Attn: DAVID B. MUELLER, ESQ., GRAND JUNCTION, CO, (For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: ERIC J. POLLART, ESQ./CHARLOTTE A. VEAUX, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).
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