W.C. No. 4-394-018Industrial Claim Appeals Office.
November 8, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied his claims for additional temporary disability, permanent disability, and medical benefits. We affirm.
On August 20, 1998, the claimant suffered an admitted industrial injury when his arms were exposed to a hydrocarbon spray. As a result of the injury, the claimant developed itching, redness, and swelling of his forearms. Dr. Orent diagnosed acute chemical dermatitis and placed the claimant at maximum medical improvement (MMI) on June 7, 1999, with five percent whole person permanent medical impairment. Dr. Orent did not include a rating for mental impairment and did not recommend future medical treatment.
The respondents filed a final admission of liability for the payment of permanent partial disability benefits consistent with Dr. Orent’s medical impairment rating. The claimant timely objected and requested a Division-sponsored independent medical examination (DIME) on the issues of MMI and permanent impairment.
The DIME physician, Dr. Deagle, diagnosed toxic sensory and motor neuropathy and dermatitis in both upper extremities. Dr. Deagle opined the claimant did not reach MMI until February 2, 2000. Further, Dr. Deagle opined the claimant sustained permanent medical and mental impairment equal to 81 percent of the whole person, and recommended future medical treatment. In so doing, Dr. Deagle reported the claimant had no history of prior psychological problems and no history of heavy drinking except one DUI.
The respondents applied for a hearing to overcome Dr. Deagle’s opinions on MMI and permanent impairment. The ALJ determined the respondents sustained their burden to overcome Dr. Deagle’s opinions by “clear and convincing evidence.” In support, the ALJ found the claimant suffered an acute episode of contact dermatitis that essentially resolved by November 1998 when he was incarcerated for assault. Furthermore, the claimant admitted he did not fully disclose his history of alcohol abuse, arrests and incarceration to the DIME physician. Under these circumstances, the ALJ determined Dr. Deagle’s opinions were based on an incorrect history provided by the claimant. Instead, the ALJ credited Dr. Orent’s opinions to find the claimant reached MMI on June 7, 1999, with five percent permanent medical impairment. Therefore, the ALJ denied the claim for temporary disability benefits for the period June 7, 1999 to February 2, 2000, additional permanent partial disability benefits, and future medical benefits.
On review the claimant first contends that because the DIME physician’s rating was so high, the ALJ erroneously shifted the burden of proof and required the claimant to prove Dr. Deagle’s rating was correct. We disagree.
As expressly recognized by the ALJ, § 8-42-107(8)(b)(III) and (c), C.R.S. 2001, provides that the DIME physician’s opinions on MMI and permanent impairment rating are binding unless overcome by “clear and convincing evidence.” Thus, the party who challenges the DIME physician’s opinions must prove it is “highly probable” the DIME physician’s rating is incorrect. Page v. Clark, 197 Colo. 306, 592 P.2d 792
(1979); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995); Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995). Put another way, to overcome the DIME physician’s opinions there must be evidence establishing that the DIME physician’s determinations are incorrect, and this evidence must be unmistakable and free from serious or substantial doubt. DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318
(1980).
This record does not support the claimant’s contention that the ALJ misapplied the burden of proof. At the commencement of the hearing, the ALJ expressly placed the burden on the respondents to overcome Dr. Deagle’s opinions on the issues of MMI and permanent impairment by “clear and convincing evidence.” See Tr. pp. 11-12; CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev’d on other grounds at 783 P.2d 269 (1989) (the ALJ’s oral findings may be considered in interpreting written order). Further, the ALJ’s order explicitly states that he placed the burden on the respondents to prove grounds to overcome Dr. Deagle’s rating. (Conclusions of Law #2, p. 5).
Next, the claimant contends the ALJ erroneously admitted evidence of the claimant’s criminal record, and then relied exclusively on that evidence to deny all additional benefits. The claimant also argues evidence of his alcohol-related offenses, arrests, and incarceration was irrelevant. Again we disagree.
Evidentiary determinations are within the ALJ’s discretion. Denver Symphony Association v. Industrial Commission, 34 Colo. App. 343, 526 P.2d 685 (1974). Consequently, we may not interfere with the ALJ’s ruling in the absence of an abuse of discretion. Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986).
As argued by the claimant, the Colorado Rule of Evidence 404 precludes the admission of character evidence for the purpose of proving the claimant “acted in conformity therewith on a particular occasion.” However, such evidence may be admitted for other purposes.
The respondents did not offer evidence of the claimant’s criminal record to prove the truth of the charges for which the claimant was arrested or incarcerated, nor to prove the claimant’s character or that he acted in conformity with any prior criminal behavior. To the contrary, the ALJ found that evidence of the claimant’s arrest record was offered to prove that the DIME physician’s opinions were based upon faulty information concerning the claimant’s nonindustrial medical and psychiatric history. The ALJ’s finding is a plausible inference from the record, (see Tr. p. 17), and supports the conclusion that C.R.E. 404 did not preclude the admission of the disputed evidence.
Moreover, the ALJ reasonably inferred that the claimant’s history of alcohol related problems, assaultive behavior, arrests, and incarceration was relevant to whether Dr. Deagle correctly attributed the claimant’s mental impairment to the effects of the industrial injury instead of nonindustrial causes. See Tr. p 22; 23; Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941) (ALJ possesses specialized knowledge which renders him competent to evaluate medical evidence and draw plausible inferences from it). Therefore, we cannot say the ALJ abused his discretion in considering evidence of the claimant’s criminal record.
We also note the ALJ’s order was not based solely on the claimant’s criminal record. Rather, the ALJ relied on the medical records of Dr. Garyfallou, Dr. Chan, Dr. Orent, Dr. Burris, and Dr. Stewart to find that the claimant suffered a limited chemical exposure which caused intermittent dermatitis and minimal residual effect on his activities of daily living. The ALJ was also persuaded by Dr. Entin that the claimant demonstrated malingering and was motivated by secondary gain. Consequently, the ALJ determined it was highly probable Dr. Deagle incorrectly attributed the claimant’s permanent medical and psychological impairment to the industrial injury.
The claimant’s remaining arguments have been considered and do not alter our conclusions. The ALJ’s finding that the claimant was incarcerated between September 21 and December 8, 2000, supports the order denying temporary disability benefits. See § 8-42-113(1), C.R.S. 2001.
Furthermore, there is substantial evidence in Dr. Deagle’s medical reports dated September 9, 1999 and May 4, 2000, and the reports of Dr. Stewart and Dr. Orent (Stewart report dated November 16, 1999 and Orent report dated October 20, 1999) to support the ALJ’s finding that Dr. Deagle did not know what chemicals the claimant was exposed to on the date of injury. In fact, Dr. Deagle admitted he never reviewed the Material Safety Data Sheet concerning the solvent which caused the claimant’s contact dermatitis.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 30, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
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. 2001. 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 November 8, 2001 to the following parties:
Bradley R. Clemens, 12761 E. Parklane Dr., Aurora, CO 80011
Workers’ Comp. Department, Timpte Industries, Inc., 700 Broadway, #800, Denver, CO 80203
Alan Hutchins, Argonaut Insurance Company, 5690 DTC Blvd., #290 West, Englewood, CO 80111
Jack Taussig, Esq., 1919 14th St., #805, Boulder, CO 80302 (For Claimant)
Jeffrey J. Cowman, Esq., 1899 Wynkoop St., #700, Denver, CO 80202 (For Respondents)
BY: A. Pendroy