IN THE MATTER OF THE CLAIM OF KIMBERLY DOHERTY, Claimant, v. AMERICAN PATROL GUARD CO., Employer, and LIBERTY MUTUAL INSURANCE COMPANY, Insurer, Respondents.

W.C. No. 4-405-581.Industrial Claim Appeals Office.
June 6, 2002.

FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ). The respondents contend the ALJ erroneously determined they failed to overcome the Division-sponsored independent medical examination (DIME) physician’s finding that the claimant is not at maximum medical improvement (MMI). We disagree and, therefore, affirm.

In 1998 the claimant suffered an admitted low back injury. An MRI revealed a herniated disc and spinal stenosis at L2-3 and a smaller herniation at L4-5 with nerve impingement. Dr. Meinig and Dr. Masferrer recommended fusion surgery. Dr. Masferrer scheduled the surgery which was later canceled when the claimant’s white cell count was elevated due to an unrelated infection. The surgery was rescheduled but again canceled. When the claimant became angry about the second postponement, Dr. Masferrer refused to perform the surgery.

Dr. Griffis opposed surgical intervention because the claimant smoked, was overweight and Dr. Griffis considered the claimant unmotivated to exercise. Dr. Sceats opined the surgery would only help for 2 to 5 years during which the other discs would degenerate. Consequently, Dr. Sceats also opposed surgery.

On March 31, 2001, Dr. Griffis placed the claimant at MMI. Relying on Dr. Griffis’ finding of MMI, the respondents terminated temporary disability benefits effective March 31, 2001. The claimant objected and requested a DIME.

In a report dated September 4, 2001, the DIME physician, Dr. Rook, opined the claimant was not at MMI because she needed a stronger analgesic for pain and a second surgical evaluation with an orthopedic spine surgeon such as Dr. Kleiner, Dr. Kurica or Dr. Lazar. Further, Dr. Rook recommended the claimant be provided professional assistance to lose weight and quit smoking if these conditions were obstacles to surgery.

Dr. Griffis refused to provide a stronger analgesic and referred the claimant to Dr. Janssen for another surgical consultation. Following a records review, Dr. Janssen opined that due to the claimant’s multiple co-morbidities the claimant was not a reasonable candidate for surgery.

The ALJ determined the opinions of Dr. Griffis and Dr. Janssen constituted a difference of medical opinion which did not rise to the level of clear and convincing evidence that Dr. Rook incorrectly found the claimant is not at MMI. Therefore, the ALJ determined the respondents failed to overcome Dr. Rook’s opinions and ordered the respondents to reinstate temporary total disability benefits effective March 14, 2001.

On review, the respondents point out that the Rules of Procedure, Part XIV(L)(2), 7 Code Colo. Reg. 1101-3 (December 1, 2001) preclude a DIME physician from referring a claimant to any other doctor for “treatment or testing.” The respondents contend Dr. Rook’s referral to one of the three physicians listed in the DIME violates Rule XIV(L)(2) and effectively precludes a finding of MMI until the claimant is evaluated by one of those physicians. Therefore, the respondents argue the referral is invalid.

Assuming, arguendo that Rule XIV(L)(2) precludes a DIME physician from referring the claimant to another physician for evaluation, Dr. Rook did not violate Rule XIV(L)(2). Dr. Rook did not require the claimant be evaluated by one of the three physicians he listed in the DIME report. In fact, Dr. Rook expressly recognized he was not allowed to make any referrals. Rather, Dr. Rook only “recommended” the three doctors as “potential consultants in southern Colorado.” (Rook depo. p. 21; Rook September 4, 2001 p. 5).

Furthermore, the ALJ did not require the claimant be evaluated by one of the doctors Dr. Rook listed. To the contrary, the ALJ recognized that Dr. Rook was merely recommending another evaluation by an orthopedic spine surgeon “such as” the three doctors he listed. (Finding of Fact 13). Accordingly, we are not persuaded Dr. Rook’s recommendation violated Rule XIV(L)(2).

Alternatively, the respondents contend that Dr. Janssen’s report compels either a conclusion that Dr. Rook found the claimant to be at MMI or the respondents overcame Dr. Rook’s opinion the claimant is not at MMI . Again, we disagree.

It is well established that the DIME physician’s determination of MMI is binding unless overcome by “clear and convincing evidence.” See Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995) Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995). “Clear and convincing evidence” is evidence which is stronger than a preponderance, is unmistakable and is free from serious or substantial doubt. DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318 (1980). In other words, a DIME physician’s finding may not be overcome unless the evidence establishes that it is “highly probable” the DIME physician’s rating is incorrect. See Postelwait v. Midwest Barricade, supra.

The question of whether the DIME physician has placed the claimant at MMI and whether that determination has been overcome are factual determinations for resolution by the ALJ. Metro Moving Storage Co. v. Gussert, supra. We must uphold the ALJ’s factual determinations if supported by substantial evidence in the record and the applicable law. Section 8-43-301(8), C.R.S. 2001; Metro Moving Storage Co. v. Gussert supra. The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ’s assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert, 914 P.2d at 415.

In this case, Dr. Griffis and Dr. Sceats opposed surgical treatment of the claimant’s low back problems but Dr. Meinig and Dr. Masferrer favored surgical treatment. Due to the conflict, Dr. Rook declined to place the claimant at MMI until the claimant underwent another surgical consultation. (See Rook depo. p. 8).

At the time of his deposition, Dr. Rook had not been provided a copy of Dr. Janssen’s evaluation, so he did not have any specific information about the nature of Dr. Janssen’s evaluation. Furthermore, because the claimant was referred to Dr. Janssen by Dr. Griffis who opposed surgery, Dr. Rook was unwilling to place the claimant at MMI based solely on evidence Dr. Janssen had concluded the claimant was not a surgical candidate. Under these circumstances, the record supports the conclusion Dr. Rook’s contingency for a determination of MMI had not been met.

Moreover, the ALJ could reasonably infer that without conducting a physical examination of the claimant, Dr. Janssen’s opinion the claimant is at MMI does not support a finding that it is “highly probable” Dr. Rook incorrectly determined the claimant was not at MMI. We may not substitute our judgment for that of the ALJ concerning the probative value and sufficiency of Dr. Janssen’s opinions and decline the respondents’ invitation to do so. See City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993). Thus, the fact that Dr. Griffis and Dr. Janssen both opposed surgery does not afford us grounds to interfere with the ALJ’s determination that the respondents failed to sustain their burden of proof to overcome the DIME’s physician’s finding on MMI.

The respondents remaining argument has been considered and is not persuasive.

IT IS THEREFORE ORDERED that the ALJ’s order dated January 22, 2002, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky

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. 2001. 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, Tower 3, Suite 350, Denver, CO 80202.

Copies of this decision were mailed June 6, 2002 to the following parties:

Kimberly Doherty, P. O. Box 548, Firestone, CO 80520

American Patrol Guard Co., 10170 E. Mississippi Ave., Denver, CO 80231-2418

Jennifer A. Thompson, Liberty Mutual Insurance Company, 13111 E. Briarwood Ave., Englewood, CO 80112

Barkley D. Heuser, Esq., 625 N. Cascade, #300, Colorado Springs, CO 80903 (For Claimant)

Jonathan S. Robbins, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)

BY: A. Hurtado