W.C. No. 4-212-099Industrial Claim Appeals Office.
February 26, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Wheelock (ALJ), which determined that the claimant reached maximum medical improvement (MMI) on March 31, 1994, and denied the claim for temporary disability benefits thereafter. We affirm.
The ALJ found that, in September 1992, the claimant sustained compensable injuries to her shoulders, neck and forearms. The claimant’s treating physician, Dr. Kendall, placed the claimant at MMI in a report dated March 31, 1994. At that time, the claimant’s diagnosis was myofascial pain and right lateral epicondylitis. Dr. Kendall assessed the claimant as suffering a ten percent impairment of her right upper extremity, and imposed permanent restrictions.
Subsequently, the claimant requested a Division-sponsored independent medical examination (IME) concerning MMI and the degree of permanent medical impairment. However, before undergoing the examination, she was involved in a non-industrial automobile accident in September 1994. The claimant testified, and medical records bear out, that the automobile accident aggravated the claimant’s neck and upper extremity complaints, as well as injuring her lower back.
In October 1994, the IME was performed by Dr. Fitzgerald. Dr. Fitzgerald opined that the claimant was not at MMI because she needed a psychological evaluation to determine whether the industrial injury aggravated preexisting depression, and an electromyogram to determine whether the claimant was suffering from carpal tunnel syndrome (CTS).
The respondents requested a hearing to determine whether Dr. Fitzgerald’s opinion concerning MMI could be overcome by clear and convincing evidence. Ultimately, the ALJ determined that Dr. Fitzgerald’s opinion was overcome, and that the claimant reached MMI on March 31, 1994, as found by Dr. Kendall. In support of this determination, the ALJ relied on Dr. Gutterman’s opinion that the claimant’s psychological condition was not related to the industrial injury.
Further, in rejecting Dr. Fitzgerald’s opinion that the claimant needed diagnostic studies to rule out CTS, the ALJ noted that Dr. Fitzgerald was unaware that the claimant was involved in an automobile accident shortly before the IME examination. Moreover, the ALJ found that, when the claimant actually underwent the diagnostic studies, they were inconsistent with CTS. Finally, the ALJ found that it was not until after the automobile accident that the claimant was removed from “work status.”
On review, the claimant contends that the evidence does not support the ALJ’s finding that Dr. Fitzgerald’s IME opinion was overcome by clear and convincing evidence. The claimant does not dispute the ALJ’s finding that the claimant’s psychological problems are unrelated to the industrial injury. However, she argues that Dr. Fitzgerald’s recommendation for additional diagnostic studies constitutes uncontradicted evidence that the claimant did not reach MMI in March 1994. The claimant also asserts that no physician “disagreed” with Dr. Fitzgerald’s opinion concerning MMI. We reject the claimant’s argument.
MMI exists when the physical or mental impairment resulting from the injury has “become stable and when no further treatment is reasonably expected to improve the condition.” Section 8-40-201(11.5), C.R.S. (1996 Cum. Supp.). Under the provisions currently codified at § 8-42-107(8)(b)(III), C.R.S. (1996 Cum. Supp.), a Division-sponsored IME physician’s opinion concerning the date of MMI may be “overcome only by clear and convincing evidence.”
The question of whether the IME physician’s opinion concerning MMI has been overcome by clear and convincing evidence is one of fact for resolution by the ALJ. The ALJ must determine whether it “highly probable” that the IME physician’s opinion is incorrect. Postlewait v. Midwest Barricade, 905 P.2d 21
(Colo.App. 1995). Because this determination is factual in nature, we must uphold the ALJ’s finding if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.); Postlewait v. Midwest Barricade, supra. In applying this standard, we may not substitute our judgment for that of the ALJ concerning the weight, credibility and plausible inferences to be drawn from the medical evidence. Further, we must view the evidence as a whole and in a light most favorable to the prevailing party. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, there is substantial evidence to support the ALJ’s finding that Dr. Fitzgerald’s opinion was overcome by clear and convincing evidence. Viewed in a light most favorable to the respondents, the evidence establishes that Dr. Fitzgerald’s examination occurred after the non-industrial automobile accident which aggravated the symptoms associated with the industrial injury. This fact, when considered in view of the evidence that Dr. Fitzgerald was unaware of the automobile accident, raises substantial doubt concerning his ability to state that the symptoms which he observed were caused by the industrial injury. Thus, the ALJ could plausibly discount Dr. Fitzgerald’s opinion concerning whether or not the claimant reached MMI for the industrial injury prior to the automobile accident.
Moreover, as the ALJ recognized, Dr. Fitzgerald’s diagnosis of possible CTS proved to be incorrect. This casts doubt on Dr. Fitzgerald’s opinion that the claimant needed diagnostic tests to rule out that condition.
Finally, the record does not support the claimant’s argument that Dr. Fitzgerald’s opinion was “uncontradicted.” Rather, the ALJ believed there was a conflict between the opinions of Dr. Fitzgerald and Dr. Kendall. Indeed, Dr. Kendall was deposed, and never withdrew his opinion that the claimant reached MMI in March 1994. Thus, the ALJ was not compelled to accept Dr. Fitzgerald’s opinion concerning MMI.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 31, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed February 26, 1997
to the following parties:
Sharon K. Cooke, 1168 Cancun Court, Colorado Springs, CO 80910
Deluxe Corp., Attn: Mari Beth Utke, P.O. Box 2559, Colorado Springs, CO 80901
The Travelers Companies, Attn: Karen B. Parker, P.O. Box 173762, Denver, CO 80217-5980
Steven R. Waldmann, Esq., 303 S. Circle Dr., Ste. 203, Colorado Springs, CO 80910-3000 (For the Claimant)
Lawrence D. Blackman, Esq., 1290 Broadway, Ste. 708, Denver, CO 80203 (For the Respondents)
By: _______________________________________________