W.C. No. 4-476-651Industrial Claim Appeals Office.
November 12, 2002
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which determined the claimant overcame the finding of the Division-sponsored independent medical examination (DIME) physician that the claimant reached maximum medical improvement (MMI). The respondents contend the evidence does not support the ALJ’s finding. We affirm.
In this case the claimant sustained a compensable back injury on July 20, 2000. She suffered a prior injury in September 1990, and underwent a disc surgery at L5-S1 in October 1991.
Following the July 2000 injury the claimant experienced persistent back and right leg pain. In October 2000 she underwent a lumbar MRI in Montrose, Colorado. The MRI indicated a bulging disc at L4-5 and disc desiccation at L5-S1. However, no herniation was noted and the report states the “spinal canal is normal caliber at this level.”
On March 20, 2001, Dr. Price stated the claimant needed no “intensive treatment” and placed her at MMI. Previously, in March 2001, a neurosurgeon recommended against surgery stating the “etiology of [the claimant’s] pain complaints remains somewhat uncertain, but likely musculoskeletal.” In January 2001 an orthopedic physician opined the claimant needed no further diagnostic procedures or treatment. The claimant sought a DIME on the issue of MMI and impairment. The DIME physician opined the claimant reached MMI on March 20, 2001, as found by Dr. Price.
Following the DIME the claimant continued to experience back and leg pain and obtained unauthorized treatment from Dr. Dohm. At Dr. Dohm’s request the claimant underwent a second MRI in Grand Junction, Colorado. The MRI revealed “mild to moderate” stenosis at L4-5, which Dr. Dohm characterized as “significant.” (Dohm office note, September 25, 2001). On November 26, 2001, Dr. Dohm performed a “decompression/posterior lateral fusion” surgery. The claimant testified the surgery has given her substantial symptomatic relief.
The claimant sought a hearing to overcome the DIME physician’s opinion that she reached MMI on March 20, 2001. The ALJ credited the claimant’s testimony that the surgery performed by Dr. Dohm provided symptomatic relief. The ALJ further found the claimant’s testimony was corroborated by the second MRI, which revealed the presence of stenosis of the lumbar spine. The ALJ concluded the second MRI was more “sophisticated” and “effective” than the first MRI, and that physicians who examined the claimant before Dr. Dohm based their opinions on the first MRI. Thus, the ALJ concluded the claimant overcame the DIME physician’s opinion by clear and convincing evidence and ordered the payment of appropriate benefits and a change of physician.
On review, the respondents challenge the sufficiency of the evidence to support the ALJ’s finding that the claimant overcame the DIME physician’s opinion concerning MMI. The respondents argue the overwhelming weight of the medical evidence establishes the claimant was at MMI on March 20 and the ALJ erred in finding to the contrary. The respondents further contend the ALJ misconstrued the evidence surrounding the MRI procedures. Finally, the respondents assert that by crediting the claimant’s testimony the ALJ misapplied the holding in Jaramillo v. South Valley Drywall, Inc., W.C. No. 4-342-823 (January 3, 2001).
MMI exists when the “medically determinable physical or mental impairment as a result of injury has become stable and no further treatment is reasonably expected to improve the condition.” Section 8-40-201(11.5), C.R.S. 2002. Consequently, a determination that surgery has a reasonable prospect for improving the claimant’s condition would be inconsistent with a finding of MMI. See Town of Ignacio v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA2024, November 7, 2002).
Where, as here, the claimant undergoes a DIME on the issue of MMI, the finding of the DIME physician has a presumptive effect unless overcome by clear and convincing evidence. Section 8-42-107(8)(b)(III), C.R.S. 2002. The question of whether the DIME physician’s finding of MMI has been overcome by clear and convincing evidence is one of fact for determination by the ALJ. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Because the issue is one of fact, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review requires us to view the evidence in a light most favorable to the prevailing party and defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). In this regard we note the ALJ is the arbiter of the weight and sufficiency of the medical evidence pertaining to MMI. Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995). Further, substantial evidence is not dependent on the number of witnesses appearing for or against a particular proposition. Jachetta v. Milano, 147 Colo. 100, 362 P.d 1065 (1961).
It is true, as the respondents argue, that the great majority of physicians, including the DIME physician, rendered opinions tending to support the conclusion the claimant reached MMI on March 20, 2001. However, the ALJ did not find these opinions persuasive because all of them (with the exception of Dr. Worwag) were issued without benefit of the second MRI. Further these opinions were rendered before the claimant’s fusion surgery and the subsequent improvement in her symptoms. Thus, we disagree with the respondents that the overwhelming weight of the medical evidence requires a different result. To the contrary, we find no basis for interfering with the ALJ’s assessment of the weight of the medical evidence.
The respondents contend the evidence does not support the ALJ’s inferences that the second MRI was technically superior to the first, or that the majority of physicians were unaware of the spinal stenosis revealed by the second MRI. However, Dr. Dohm’s office note of September 11, 2001, specifically states the Grand Junction MRI machine has a “bigger magnet” than the Montrose machine. Further, our review of the October 2000 MRI report does not reveal any mention of “stenosis.” To the contrary, that MRI indicated the spinal canal was of “normal caliber.” Neither the DIME physician, nor any of the physicians who examined the claimant before the DIME, mentions stenosis as a problem. In contrast, Dr. Dohm described the stenosis as “significant.” Thus, the ALJ plausibly inferred the second MRI revealed a previously undiagnosed condition supporting Dr. Dohm’s decision to offer surgical treatment.
Neither did the ALJ commit error in relying on our decision i Jaramillo v. South Valley Drywall, Inc., supra. The ALJ correctly recognized that case stands for the proposition that he could consider the claimant’s testimony concerning the effects of surgery performed after the alleged date of MMI in determining whether the DIME physician’s opinion was overcome. Although the ALJ made a minor error in his recitation of the facts in Jaramillo, that misstatement did not alter the legal principle at issue.
Insofar as the respondents raise other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 10, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________
David Cain
___________________________________
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. 2002. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed ________November 12, 2002
to the following parties:
Evangelina DeChristian, 916 Bluff St., Delta, CO 81416
Debra Steger, Russell Stover Candies, 2200 Stover Ave., Montrose, CO 81401
Hartford Casualty Insurance Company, c/o Nhu Miller, Specialty Risk Services, P. O. Box 221700, Denver, CO 80222
Miguel Martinez, 3155 Federal Blvd., Denver, CO 80211 (For Claimant)
Scott Sweeney, Esq., and Jon Atkins, Esq., 1700 Broadway, #1900, Denver, CO 80290 (For Respondents)
By: A. Hurtado