W.C. No. 4-165-196Industrial Claim Appeals Office.
May 9, 1997
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Henk (ALJ) which determined that the claimant is not at maximum medical improvement (MMI) and awarded further medical benefits. We affirm.
Insofar as pertinent, the record reveals that the claimant suffered a disabling injury on February 2, 1993, while working as a counter clerk for the respondent-employer. The respondents admitted liability for medical benefits and paid temporary total disability benefits through December 31, 1993. On February 10, 1994, the treating physician, Dr. Smith, determined the claimant to be at MMI with five percent permanent medical impairment of the whole person due to a loss of range of motion in the left shoulder and lumbar spine. Dr. Smith also restricted the claimant to lifting no more than twenty pounds, and stated that during the next year, the claimant may have “an occasional flare up” and “require occasional check up or medication.”
Thereafter, the claimant held several different employments. The claimant worked as a bank teller, a salesclerk, an accounting clerk, and a file clerk/secretary.
Commencing in 1995, the claimant was treated by several physicians including Dr. Hine, Dr. Dresser, Dr. Campbell, and Dr. Bonney. Following a psychiatric crisis in September 1995, Dr. Bonney diagnosed the claimant as suffering from depression and recommended psychological treatment. Dr. Bonney opined that the claimant’s psychological problems are the result of “persistent pain and debilitation” from the industrial injury.
Dr. Campbell initially opined that the claimant’s psychological problems are due to unresolved grief from the death of her father. However, Dr. Campbell later deferred to Dr. Bonney’s opinion concerning the work-related nature of the claimant’s psychological problems. However, Dr. Campbell also opined that the claimant remained at MMI, and that the claimant’s need for further neck and back treatment is the result of a simple exacerbation of the industrial injury which “might ordinarily have been predicted,” and which “would have been expected” to require “maintenance” treatment.
In October 1995, Dr. Rook performed a Division sponsored independent medical examination (IME). Dr. Rook reported that at the time of the IME the claimant complained of upper back pain, left arm numbness, left lower extremity numbness, headaches, neck pain and depression. During his subsequent deposition, Dr. Rook testified that the claimant’s physical complaints were essentially the same as the complaints she made to Dr. Smith. (Tr. p. 22). Further, Dr. Rook opined that the claimant’s ongoing medical and psychological problems are the result of the 1993 industrial injury. Dr. Rook also opined there is medical and psychological treatment which might improve the claimant’s condition, and therefore, he opined that the claimant was not at MMI.
The ALJ determined that the respondents failed to present “clear and convincing evidence” to overcome Dr. Rook’s opinions. Therefore, the ALJ ordered the respondents to provide further medical and psychiatric treatment for the claimant to reach MMI.
The respondents’ sole argument on review is that the record is insufficient to support the ALJ’s finding that claimant’s condition is causally related to the 1993 industrial injury. The respondents contend that the 1993 injury is “too remote in time and circumstances” to be the cause of the claimant’s ongoing medical problems. The respondents also contend that the claimant’s various employments since February 1994, “could be” the cause of her current problems, and argue that the claimant’s testimony “patently demonstrates” that her other jobs and activities caused her current problems. We reject these arguments.
First, we disagree with the respondents’ contention that the claimant bore the burden of proof. This claim is governed by §8-42-107(8)(b), C.R.S. (1995 Cum. Supp.) [substantially amended in 1996]. Section 8-42-107(8)(b) provides that the authorized treating physician who provides the primary care is required to make the initial determination of MMI, and if either party “disputes” that determination, the parties shall select a physician to perform an IME. The statute also provides that where the parties are unable to agree on an IME physician, the Division shall appoint the IME physician, and opinion of the IME physician is binding unless overcome “by clear and convincing evidence.”Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995).
Under section 8-40-201(11.5), C.R.S. (1996 Cum. Supp.), MMI exists when “any medically determinable physical or mental impairment as a result of injury has become stable and when no further treatment is reasonably expected to improve the condition.” Therefore, we have previously held that § 8-40-201(11.5) inherently requires the IME physician to make judgments concerning the cause or causes of a claimant’s need for treatment. Fields v. TAD Temporaries, W.C. No. 4-185-877, September 7, 1995. We also stated in Fields that § 8-42-107(8)(b) reflects a legislative intent requiring ALJs to defer to an IME physician’s opinion concerning the cause of the need for additional treatment, unless the opinion is overcome by clear and convincing evidence at a hearing. See also Chestnut v. University of Colorado-Boulder, W.C. No. 4-255-498, December 13, 1996.
We adhere to our previously stated position. It follows that the respondents bore the burden to present “clear and convincing evidence” to overcome Dr. Rook’s opinion that the claimant’s ongoing medical and psychological problems are the result of the industrial injury.
Here, the ALJ found that Dr. Rook’s opinions were the most persuasive, and expressly rejected the respondents’ contention that the claimant’s condition is attributable to an intervening industrial injury. See (Discussion and Conclusions of Law). Therefore, the ALJ determined that the respondents failed to meet their burden to overcome Dr. Rook’s opinion that the claimant’s need for further treatment is causally related to the 1993 injury.
The respondents’ arguments notwithstanding, there is substantial evidence in Dr. Rook’s narrative report and deposition testimony to support the ALJ’s determination. Moreover, Dr. Rook’s opinions are consistent with Dr. Bonney’s opinions and the claimant’s testimony.
Dr. Rook opined that the claimant’s psychological problems are secondary to her pain and functional limitations from the industrial injury. In so doing, Dr. Rook recognized that prior to 1995, the claimant was not diagnosed with depression. However, Dr. Rook attributed that fact to the physicians’ failure to “notice” the claimant’s psychological problems. (Rook depo. p. 11).
Furthermore, although Dr. Rook admitted that the claimant’s ongoing medical problems “could be” the result of factors other than the industrial injury, he believed that the problems were “probably” related to the industrial injury. (Rook depo. p. 14). In rendering this opinion, Dr. Rook knew that the claimant had trouble keeping a job after the industrial injury and was fired from such job. (Rook depo. p. 16).
However, the respondents contend that Dr. Rook’s opinions are not probative because they are based upon the history provided by the claimant, and the claimant failed to disclose her 1994-1995 employment activities which aggravated her condition. We disagree.
Insofar as Dr. Rook did not know the details of the claimant’s post-injury employment, the ALJ was free to consider that in assessing the probative value of Dr. Rook’s opinions. See Industrial Commission v. Albo, 167 Colo. 467, 447 P.2d 1006 (1968) (fact that claimant gives an incomplete history goes to the weight of the physician’s opinion). However, the ALJ was not persuaded that the claimant’s post-injury employment caused a compensable aggravation of her condition from the 1993 injury, and this is supported by the claimant’s testimony. Thus, the ALJ’s findings reflect her determination that Dr. Rook’s specific knowledge of the claimant’s 1994-1995 work activities was not critical in assessing the sufficiency and probative weight of his opinions. See Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990) (weight to be afforded expert testimony exclusive discretion of ALJ).
The claimant testified that ever since the 1993 injury she has experienced continuing upper and lower back pain, and numbness in her left arm since the industrial injury. (Tr. pp. 11, 14, 21). She stated that as a result of this pain she has had concentration problems, is unable to sit for extended periods of time and is unable to work more than twenty hours per week. The claimant testified that when she works over twenty hours a week or exceeds her sitting limitations her pain worsens. (Tr. p. 28). As a result, she stated that she had to change jobs several times in 1994 and 1995. (Tr. pp. 12, 15). However, the claimant did not report any new injuries. Accordingly, the claimant’s testimony contains substantial evidence from which the ALJ could, and did, infer that the claimant did not suffer an intervening injury.
Nevertheless, even if the respondents are correct in asserting that the claimant was required to prove a causal connection between her condition and the 1993 injury, the ALJ’s findings of fact reflect her determination that the claimant sustained the burden, and that determination is supported by the evidence cited above. Consequently, insofar as the claimant’s testimony contains some evidence which, if credited, might support a contrary result, that does not afford us a basis to disturb the ALJ’s order. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995) (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).
IT IS THEREFORE ORDERED that the ALJ’s order dated June 19, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Orderis commenced in the Colorado Court of Appeals, 2 East 14th Avenue,Denver, CO 80203, by filing a petition for review with the court, withservice of a copy of the petition upon the Industrial Claim AppealsOffice and all other parties, within twenty (20) days after the date thisOrder is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996Cum. Supp.).
Copies of this decision were mailed May 9, 1997 to the following parties:
Sandra Cordova, 2511 Sherwood Ln., Pueblo, CO 81005
Steve Shomaker, United Parcel Service, 5020 Ivy Street, Commerce City, CO 80022
Stephen Pingree, Liberty Mutual Ins. Co., 13111 E. Briarwood Ave., #100, Englewood, CO 80112
James May, Esq., P.O. Box 2940, Colorado Springs, CO 80901-2940 (For the Claimant)
John Connell, Esq., Dawn Yager, Esq., 1290 Broadway, Ste. 705, Denver, CO 80203 (For the Respondents)
BY: ____________________________