W.C. No. 4-629-941.Industrial Claim Appeals Office.
September 8, 2006.
FINAL ORDER
The claimant seeks review of an order dated March 8, 2006 of Administrative Law Judge Harr (ALJ) awarding her benefits pursuant to an independent medical examination sponsored by the Division of Workers’ Compensation (DIME). We affirm.
The ALJ’s findings are summarized as follows. The claimant sustained an admitted injury on June 8, 2004. Dr. D’Angelo provided initial medical treatment to the claimant and diagnosed a neck strain; however, Dr. D’Angelo found the claimant retained her full range of motion at the neck. The claimant subsequently received medical treatment from several providers that focused on her left shoulder area. Two physicians agreed that the claimant reached maximum medical improvement (MMI) in March 2005. Dr. Wunder, diagnosed chronic rotator cuff/tendonitis/adhesive capsulitis of the left shoulder, and imposed permanent restrictions. Dr. Hattem, examined the claimant in April 2005 and reported that the claimant’s current complaint about neck pain was not related to her work injury. However, he noted that her complaint of neck tightness was probably secondary to a muscle spasm from her shoulder injury. The ALJ found Dr. Hattem’s review of the claimant’s medical history to be persuasive. Dr. Hattem agreed the claimant had reached MMI and provided a 6% whole person impairment rating based on the abnormal motion of her left shoulder.
The claimant obtained more treatment and an MRI (magnetic resonance imaging) of her neck region. She requested and received a DIME, which was performed by Dr. Jenkins. He reviewed the claimant’s medical records, including those from her chiropractor, and reported that “there is nothing that indicates that this is a neck injury.” Dr. Jenkins agreed that the claimant was at MMI for her work-related injury as of March 10, 2005. He also assigned a 7% impairment rating of the whole person, based on a 12% permanent medical impairment of the claimant’s left upper extremity. The claimant obtained an independent medical examination from Dr. Hughes, who agreed with the finding of MMI for her shoulder, but attributed her neck condition to her work injury. However, the ALJ found the claimant failed to overcome by clear and convincing evidence Dr. Jenkins’s determination that her neck condition was unrelated to her work injury.
On appeal, the claimant challenges the ALJ’s imposition of the clear and convincing burden of proof, rather than by a preponderance of the evidence, to establish that her neck condition was caused by her work-related injury. The claimant contends she was not contesting the DIME physician’s opinion on MMI or permanent medical impairment. Rather, the claimant asserts that she sought to establish the compensability of her neck condition. However, we agree with the ALJ that the claimant was required to overcome the findings of the DIME physician by the more stringent burden of proof.
Section 8-42-107(8)(b)(III) and (c), C.R.S. 2005, provides that the DIME physician’s opinions on the issues of MMI and permanent impairment are binding unless overcome by “clear and convincing evidence.” Furthermore, the court of appeals has held that the DIME physician’s opinion on the cause of a claimant’s disability is an inherent part of the diagnostic assessment which comprises the DIME process of determining MMI and rating permanent impairment. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998); Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998). It follows that the party disputing the DIME physician’s opinions on the issue of causation bears the burden to overcome the DIME physician’s opinions by clear and convincing evidence.
The claimant maintains that the DIME findings are not at issue, in which case the ALJ can determine the threshold issue of whether the claimant sustained a neck injury based on a preponderance of the evidence. Compare Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844, 846 (Colo.App. 2000). However, the DIME physician’s determination that the claimant’s work injury did not include a neck, or cervical, component, was inherent in his evaluation, and we conclude that the ALJ properly evaluated this matter by applying the clear and convincing burden of proof. See Leprino Foods Co. v. Industrial Claim Appeals Office, 134 P.3d 475, 482-83 (Colo.App. 2005); Qual-Med, Inc. v. Industrial Claim Appeals Office, supra.
Here, unlike the situation in Faulkner, there was no dispute that the claimant sustained an injury arising out of and in the course of her employment. Rather, the dispute centered on whether the claimant’s neck impairment was caused by the admitted industrial injury. This determination falls under the principle of Qual-Med and Egan that a DIME physician’s finding that a particular component is, or is not, related to the industrial injury must be overcome by clear and convincing evidence. Shoaff v. Manor Care Inc. W.C. No. 4-300-993 (May 30, 2001).
When the claimant’s entitlement to benefits is disputed, the claimant has the burden to prove a causal relationship between a 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). The ALJ’s factual determinations must be upheld if supported by substantial evidence and plausible inferences drawn from the record. We have no authority to substitute our judgment for that of the ALJ concerning the credibility of witnesses and we may not reweigh the evidence on appeal. Section 8-43-301(8), C.R.S. 2005; Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993). Furthermore, the ALJ is considered to possess specialized knowledge which renders her competent to evaluate medical evidence and draw plausible inferences from it. Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941).
Here, the DIME physician agreed with the earlier finding of MMI and imposed an impairment rating for the left upper extremity after evaluating the extent of the claimant’s industrial injury to the shoulder and neck region. Consequently, the ALJ did not err in requiring the claimant to overcome the DIME physician’s opinions on the cause and extent of the claimant’s injury by clear and convincing evidence. The DIME report of Dr. Jenkins includes his review of the claimant’s medical records and he renders an opinion concerning the extent of the claimant’s industrial injury: “On careful review of the treatment records, there really is nothing that indicates that this is a neck injury. . . . Her injury is that of the shoulder.” Exhibit 6 at 26. The ALJ expressly credited the DIME physician’s findings and opinions. Order at 4, ¶¶ 14-15, 7-8. The ALJ’s finding that the claimant failed to overcome the DIME physician’s opinion on the extent of her compensable injury is supported by substantial evidence, including the medical reports of Dr. D’Angelo and Dr. Hattem. See, e.g., Exhibit 7 at 32; Exhibit 10 at 51, 60.
The ALJ correctly applied the law and did not err in finding her neck condition not to be work related.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 8, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
Cynthia Conway, Denver, CO, Benton Morley, Home Depot c/o Sedgwick CMS, Phoenix, AZ, Raymond A. Melton, Esq., Denver, CO, (For Claimant).
David J. Dworkin, Esq., Denver, CO, (For Respondents).