W.C. No. 4-296-404Industrial Claim Appeals Office.
April 20, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) which denied a petition to reopen based on a worsened condition, and denied and dismissed a request for the imposition of penalties. We affirm.
The claimant sustained a compensable back injury on April 9, 1996. After a lengthy course of conservative treatment, the claimant was placed at maximum medical improvement (MMI) on October 17, 1997, with a 16 percent whole person medical impairment rating. The respondents filed a final admission of liability, which was not contested by the claimant.
Subsequently, the claimant filed a petition to reopen based on a worsened condition. The claimant contended his back condition had worsened so as to warrant a spinal fusion at L5-S1. The claimant also argued that he developed deep venous thrombosis (DVT) as a result of forced inactivity stemming from the industrial injury. In support of this position, the claimant submitted the reports and testimony of one of his treating physicians, Dr. Donner. The claimant also sought and obtained a Division-sponsored independent medical examination (DIME). The DIME physician testified the claimant’s condition had worsened, and that the DVT was related to inactivity caused by the industrial injury.
However, the ALJ found the claimant failed to prove a worsened condition caused by the industrial injury. The ALJ credited the opinions of Dr. Hughes, one of the claimant’s treating physicians, that the claimant’s back condition remained stable after reaching MMI, and that the DVT was “superimposed” on the claimant’s injury- related condition. The ALJ also cited the reports of other medical experts which corroborated Dr. Hughes’ opinions. Consequently, the ALJ denied the petition to reopen.
The ALJ also dismissed the claimant’s request for the imposition of penalties. (Tr. p. 7). The claimant had sought penalties because the respondents failed to pay medical benefits after MMI, and because the respondents failed to contest the DIME in accordance with the rules of procedure.
I.
On review, the claimant first contends substantial evidence does not support the ALJ’s denial of the petition to reopen. Essentially, the claimant argues the ALJ should have credited the testimony which he offered in support of his position, and rejected the respondents’ expert testimony and evidence as incompetent. We disagree.
Here, the claimant does not dispute that the respondents’ final admission of liability closed claim. Consequently, in order to receive additional medical and disability benefits, the claimant was required to prove a worsening of condition. Section 8-43-303(1), C.R.S. 2000. A worsening of condition refers to a “change in the condition of the original compensable injury or to a change in claimant’s physical or mental condition which can be causally connected to the original compensable injury.” Chavez v. Industrial Commission, 714 P.2d 1328
(Colo.App. 1985). The power to reopen is discretionary, and we may not interfere with the ALJ’s order absent fraud or a clear abuse of discretion. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996). An abuse of discretion is not shown unless the ALJ’s order is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001).
The question of whether the claimant proved a worsened condition causally related to the industrial injury is one of fact for determination by the ALJ. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000); Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). Because these issues are factual, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra. When the issue involves causation, we specifically note that the weight and credibility to be accorded an expert medical opinion is an issue of fact for determination by the ALJ. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The claimant’s arguments notwithstanding, this record contains conflicting documentary and expert testimony concerning whether or not the claimant sustained a worsened condition, and if so, whether the worsening was caused by the industrial injury. Under these circumstances, the ALJ did not err in crediting the evidence, including the expert opinions of Dr. Hughes and Dr. Young, indicating that there was no worsening of condition caused by the industrial injury. Although there was evidence tending to undermine the credibility of these physicians, and evidence which supported the claimant’s theories of the case, the weight to be assigned such evidence was for the ALJ, and we may not substitute our judgment for hers on these issues.
The claimant also argues that the opinions of Dr. Hughes and Dr. Young are incompetent because these physicians are not surgeons, and not qualified to comment on the need for back surgery. Initially, we note the claimant did not object to the ALJ’s consideration of the opinions of these physicians on grounds that they are incompetent. Therefore, the claimant waived any such argument on appeal. C.R.E. 103(a)(1).
In any event, we perceive no error in the ALJ’s consideration of this evidence. The ALJ has broad discretion to determine whether a particular witness is qualified to express opinions as an expert, and whether the evidentiary requirements governing admission of such opinions have been satisfied. People v. Williams, 790 P.2d 796 (Colo. 1990); Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992). Where, as here, medical experts proffer opinions based on their experience and knowledge, the ALJ must determine whether the experts possess specialized information which will assist her in resolving a relevant issue. C.R.E. 702; Brooks v. People, 975 P.2d 1105 (Colo. 1999).
Here, the record supports the conclusion that Dr. Hughes and Dr. Young are physicians possessing special medical knowledge relevant to determining whether the claimant sustained a worsening of condition caused by the injury. Although these physicians are not surgeons, this fact does not necessarily disqualify them from expressing opinions on the issues of medical causation, the significance and interpretation of MRI studies, and even the possible outcomes of surgery itself. We decline to hold, as the claimant would have us do, that such issues are the unique province of orthopedic or neurological surgeons. Further, it is implicit in our decision that the opinions of Dr. Hughes and Dr. Young are not predicated on the type of hard, scientific evidence which might require application of the Frye or Daubert tests. Brooks v. People, supra.
Finally, the claimant’s assertion the ALJ improperly restricted the presentation of evidence and cross-examination is without merit. The ALJ reasonably exercised her discretion to control the presentation of evidence, and the claimant was afforded a full opportunity to develop her theory of the case and rebut the respondents’ evidence. Thus, any possible error in the exclusion of particular bits of evidence could not have affected the outcome of the case, and was harmless.
II.
The claimant next contends the ALJ erred in failing to give “special weight” to the opinions of the DIME physician that the claimant’s condition had worsened, and that the worsening was causally related to the industrial injury. We disagree.
A DIME physician’s opinions concerning MMI and whole person medical impairment are binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(b)(III), C.R.S. 2000; § 8-42-107(8)(c), C.R.S. 2000. As the claimant argues, both of these issues require the DIME physician to determine the cause or causes of the claimant’s condition. Therefore, a DIME physician’s determination that a particular condition is, or is not, related to the industrial injury must be overcome by clear and convincing evidence. See Qual-Med v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998). The overall purpose of these provisions is to reduce litigation on the issues of MMI and medical impairment. Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995).
However, in this case, the claimant failed to contest a final admission of liability which resolved the issues of MMI and medical impairment. Consequently, those issues were closed, and not subject to further litigation absent a reopening of the claim. Section 8-43-203(1)(b)(II) and (d), C.R.S. 2000; Dyrkopp v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 00CA1180, April 12, 2001).
It follows the ALJ was not required to give any special weight to the opinion of the DIME physician concerning whether or not the claimant’s condition had worsened, and whether any worsening was causally related to the industrial injury. Nothing in § 8-43-303(1), or elsewhere in the Act, provides that a DIME physician’s opinion is entitled to special weight on these issues, and we have no authority to legislate such a requirement. Kraus v. Artcraft Sign Co., 710 P.2d 480
(Colo. 1985). Indeed, the courts have consistently declined to give special weight to the opinions of the DIME physician except where the statute expressly requires it. E.g. Faulkner v. Industrial Claim Appeals Office, supra (DIME physician’s opinion concerning causation need not be overcome by clear and convincing evidence where dispute involved the “threshold requirement” that the claimant establish a compensable injury); Story v. Industrial Claim Appeals Office, 910 P.2d 80
(Colo.App. 1995) (DIME physician’s finding of MMI did not prohibit order for change of physician to the extent physician would provid Grover-style medical benefits).
III.
Claimant next contends the ALJ erred in dismissing her penalty claims. Insofar as the claimant alleges the respondents are subject to penalties because they failed to respond to the DIME physician’s report in accordance with the rules and statute, we find no error. As we have held, the issues of MMI and permanent impairment were closed by the respondents’ final admission of liability. Consequently, before the DIME physician’s opinions could again become relevant, the claimant was required to establish grounds to reopen. Because the claimant failed to do so, there is no basis for imposing penalties. Cf. Faulkner v. Industrial Claim Appeals Office, supra.
Similarly, we perceive no error in the ALJ’s dismissal of the claim for penalties based on the respondents’ alleged failure to comply with an order of ALJ Gandy, which required the payment of “reasonable and necessary medical expenses.” This order was issued on December 17, 1996, almost one year prior to the date of MMI. Thus, even if the issue o Grover-style medical benefits was not closed by the respondents’ final admission, the respondents remained free to contest liability for specific future treatments on grounds that the treatment is not reasonable and necessary, or on grounds that the need for treatment was not caused by the industrial injury. See Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). Indeed, the burden of proof was on the claimant to establish entitlement to Grover medical benefits, and the respondents were entitled to “contest any future claims for medical treatment on the basis that such treatment is unrelated to the industrial injury or occupational disease.” Grover v. Industrial Commission, 759 P.2d 705, 711-712 (Colo. 1988). Here, the respondents successfully contested their liability, and may not be penalized for raising legitimate defenses.
IV.
The claimant’s final contention is that the ALJ erred in failing to address the claim for Grover medical benefits. However, the ALJ determined the claimant does not need surgery, and to the extent the claimant needs any treatment, the injury did not cause the need for treatment. Hence, the order necessarily forecloses the right to Grover
medical benefits. See Lerner v. Wal-Mart Stores, Inc., 865 P.2d 915
(Colo.App. 1993) (claim for Grover medical benefits properly denied where the claimant failed to prove need for continuing care was caused by the industrial injury as opposed to a prior injury).
IT IS THEREFORE ORDERED that the ALJ’s order dated October 24, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
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. 2000.
Copies of this decision were mailed April 20, 2001 to the following parties:
Ronnie L. Cordova, P. O. Box 288, LaPorte, CO 80535
Foundation Builders, Inc., 6180 W. 10th St., Greeley, CO 80634-9756
American Compensation Insurance Company, 7400 E. Orchard Rd., P. O. Box 6541, Englewood, CO 80155-6541
Chris L. Ingold, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For Claimant)
Bernard Woessner, Esq. and Benjamin E. Tracy, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210 (For Respondents)
Kristi J. Coffin, Esq., Chris L. Ingold, Esq., 501 S. Cherry St., #500, Denver, CO 80246
By: A. Hurtado