W.C. No. 4-350-176Industrial Claim Appeals Office.
February 14, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Schulman (ALJ) which awarded the claimant medical benefits. The respondents contend the ALJ erred in awarding medical benefits without requiring the claimant to undergo a Division-sponsored independent medical examination (DIME) on the issue of maximum medical improvement (MMI). The respondents further contend the evidence does not support the ALJ’s finding that the need for treatment was caused by the industrial injury. We affirm.
The claimant sustained compensable injuries when she fell from a ladder in November 1996. In January 1997, the claimant underwent a two-level cervical fusion performed by Dr. O’Brien. Thereafter, the claimant continued to experience right-sided neck and shoulder pain. Consequently, the claimant was referred to Dr. Klingbeil, a practitioner of physical medicine, for rehabilitative therapy. On September 23, 1998, Dr. Klingbeil opined the claimant’s condition had plateaued; therefore, Dr. Klingbeil placed the claimant at MMI.
On October 1, 1998, the claimant returned to Dr. O’Brien with “new complaints” of “increasing headaches and blacking out.” The surgeon referred the claimant to a neurologist for examination and treatment of the symptoms. Ultimately, the neurologist, Dr. London, diagnosed the claimant as suffering from an exacerbated vasovagal response to severe neck pain caused by the industrial injury. Dr. London prescribed the drug Depakote for treatment of this condition.
The respondents denied liability for Dr. London’s examinations and treatment. They argued Dr. Klingbeil, an authorized treating physician, had placed the claimant at MMI. Therefore, the respondents reasoned the ALJ lacked jurisdiction to address the issue of additional medical treatment absent a DIME on the issue of MMI. Further, the respondents argued the evidence does not support a finding that Dr. London’s treatment is causally related to the industrial injury.
However, the ALJ concluded that she could address the issue of MMI without requiring the claimant to undergo a DIME. The ALJ found there was a conflict of opinion between Dr. Klingbeil and Dr. O’Brien concerning whether or not the claimant reached MMI on September 23, 1998. Crediting the opinion of Dr. O’Brien, the ALJ found the claimant was referred to Dr. London for the purpose of ruling out “possible diagnoses” related to head trauma stemming from the industrial injury. In light of the referral for diagnostic purposes, the ALJ found the claimant was not at MMI and September 23. Further, the ALJ credited the opinion of Dr. London that the claimant’s “episodes” of near loss of consciousness were caused by the effects of the industrial injury. Thus, the ALJ awarded medical benefits for treatment by Dr. London.
I.
On review, the respondents contend the record lacks substantial evidence to support the ALJ’s determination that there was a “conflict of opinion” between Dr. Klingbeil and Dr. O’Brien concerning whether or not the claimant reached MMI on September 23, 1998. Therefore, the respondents argue the ALJ lacked jurisdiction to award additional medical benefits absent a DIME. In support, the respondents rely on Dr. O’Brien’s testimony that he generally does not make decisions concerning MMI, but defers to a physiatrist. Further, the respondents argue that Dr. O’Brien actually opined the claimant reached MMI because he testified there was no further treatment which he could provide as of October 1, 1998. We find no error.
MMI he 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.” Section 8-40-201(11.5), C.R.S. 2000. In light of this definition, we have previously held that reasonable and necessary diagnostic procedures are a prerequisite to MMI if they have a prospect of “defining the claimant’s condition and suggesting further treatment.” Villela v. Excel Corp.,
W.C. No. 4-400-281 (February 1, 2001); Hatch v. John H. Garland Co.,
W.C. No, 4-368-712 (August 11, 2000); cf. Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949).
We agree with the respondents’ legal position that, once an authorized treating physician places the claimant at MMI, an ALJ lacks jurisdiction to award additional medical benefits for the purposes of curing the industrial injury and assisting the claimant to reach MMI unless the claimant undergoes a DIME. Section 8-42-107(8) (b)(I), (II), (III), C.R.S. 2000; Story v. Industrial Claim Appeals Office, 910 P.2d 80
(Colo.App. 1995); Beede v. Allen Mitchek Feed Grain, W.C. No. 4-317-785
(April 20, 2000). However, a DIME is not a jurisdictional prerequisite to an ALJ’s resolution of a factual issue where an authorized treating physician issues ambiguous opinions concerning MMI, or multiple treating physicians issue conflicting opinions concerning MMI. Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996).
Where the issue involves a conflict between multiple treating physicians, or the resolution of an ambiguity in the opinion of a single treating physician, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000 Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995) (ALJ is sole arbiter of conflicting medical evidence concerning MMI, and his findings must be upheld if supported by substantial evidence and plausible inferences drawn therefrom). In applying the substantial evidence test, we are obliged to view the evidence in a light most favorable to the prevailing party. Further, we must defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record. Metro Moving in Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The respondents’ argument notwithstanding, the reports and testimony of Dr. O’Brien are subject to conflicting inferences concerning whether or not he believed the claimant to be at MMI on September 23, 1998. It is true Dr. O’Brien testified that he did does not generally determine the date of MMI and defers to the physiatrist. It is also true that Dr. O’Brien testified that on October 1, 1998, he did not believe the claimant needed further health care treatment to cure or relieve the effects of the injury. However, Dr. O’Brien also testified that he referred the claimant to a neurologist because the claimant’s symptoms of “blacking out” were beyond his field of expertise, and the claimant’s symptoms could have been associated with head trauma sustained in the industrial injury. (O’Brien depo. pp. 17-18). Under these circumstances, the ALJ resolved inconsistencies in Dr. O’Brien’s testimony and concluded he referred the claimant for additional diagnostic testing reasonably necessitated by the industrial injury. (Finding of Fact 7). Cf. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000) (where DIME physician issued ambiguous opinion concerning whether or not claimant was at MMI, issue was one of fact for resolution by ALJ).
The mere fact that Dr. O’Brien had no further treatment to offer the claimant did not require the ALJ to conclude as a matter of law that Dr. O’Brien believed the claimant was at MMI. To the contrary, a referral for additional diagnostic examination may be found inconsistent with MMI, even if the physician referring the claimant has no other treatment recommendations. Villela v. Excel Corp., supra. This is particularly true where, as here, the referral is made for the purpose of diagnosing conditions outside the referring physician’s expertise. Further, Dr. O’Brien testified he could not say whether the claimant reached MMI on September 23, 1995. (O’Brien depo. p. 12).
II.
The respondents next contend the ALJ erred in finding a causal relationship between the industrial injury and the claimant’s episodes of near loss of consciousness. Although the respondents recognize that Dr. London testified to a causal relationship, they argue Dr. London’s testimony must be disregarded because it is predicated on an incorrect medical history. Further, the respondents assert Dr. London’s opinion is incredible as a matter of law because it is “overwhelmed” by other evidence in the case. We reject these arguments.
The question of whether the claimant proved a causal relationship between the industrial injury and Dr. London’s treatment was one of fact for determination by the ALJ. Consequently, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. In this regard, we note the weight and credibility of expert medical opinion concerning the issue causation is a matter of fact for resolution by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251
(Colo.App. 1999); Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990).
It is true that expert medical opinion predicated on assumed facts at variance with the actual facts does not constitute substantial evidence. Cooper v. Industrial Claim Appeals Office, 998 P.2d 5
(Colo.App. 1999), cert. granted. However, where a physician’s opinion is based on an incomplete medical history, and the evidence concerning causation is conflicting, it is for the ALJ to assess the significance of the incomplete history when evaluating the physician’s credibility. See Industrial Commission v. Albo, 167 Colo. 467, 447 P.2d 106 (1968).
The respondents argue Dr. London’s opinion is incompetent, and Finding of Fact 17 at p. 5 of the ALJ’s order is not supported by the evidence, because the claimant did not give Dr. London a history of “light headedness and dizziness” prior to the industrial injury of November 1996. The respondents point out that on January 7, 1997, the claimant gave Dr. O’Brien a history of “feeling light-headed and dizzy from time to time.”
First, Dr. O’Brien’s January 7 office note gives no specific dates for the claimant’s experiences of light headedness and dizziness. Consequently, it cannot be said with any certainty whether these symptoms appeared before the industrial injury, or first occurred after the injury and before Dr. O’Brien’s examination. Indeed, the claimant testified that she had no such symptoms before the industrial injury. (Tr. p. 58). Moreover, when Dr. London examined the claimant on October 6, 1998, the claimant reported episodic symptoms of severe neck pain, impaired vision, breathlessness, headaches, and near loss of consciousness in addition to light headedness and dizziness. The ALJ explicitly found that before the industrial injury the claimant did not have “severe neck pain, headaches or near-fainting spells.” (Finding of Fact 17, p. 5 of the ALJ’s order). Consequently, even if the claimant experienced light headedness or dizziness prior to the industrial injury, the ALJ determined that such history was not decisive. Rather, it was the entire constellation of symptoms which the claimant presented to Dr. London which formed the basis of his opinion, and the vast majority of these symptoms did not predate the injury. Under these circumstances, we cannot say Dr. London’s opinion is at odds with established fact, or that the ALJ erred in relying on it. Industrial Commission v. Albo, supra.
The respondents’s assertion that Dr. London’s opinion was overwhelmed by other evidence in the case is without merit. Dr. explained that a cervical fusion often fails to afford complete symptomatic relief, and that a vasovagal response to ongoing pain best explains the claimant’s symptoms. It was for the ALJ to assess the weight and credibility of this testimony.
The respondents’ assertion that Dr. London’s treatment was not authorized is without merit. Because, as we have held, the evidence establishes that Dr. O’Brien referred the claimant to Dr. London for reasonable and necessary diagnostic procedures, the referral was made in the ordinary course of medical treatment for the industrial injury. Consequently, Dr. London is an authorized physician. Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985).
IT IS THEREFORE ORDERED that the ALJ’s order dated May 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 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. 2000. 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 February 14, 2001 to the following parties:
Sharon Eby, 10753 Cherry Ct., Thornton, CO 80233
Wal-Mart Stores, Inc., 550 E. 102nd Ave., Thornton, CO 80229-2014
Insurance Company of the State of Pennsylvania, AIG Claim Services, P. O. Box 32130, Phoenix, AZ 85064
Karen Goad, Claims Management, Inc., P. O. Box 3708, Bartlesville, OK 74006-3708
H. Earl Moyer, Esq., 1401 Saulsbury St., #204, Lakewood, CO 80215 (For Claimant)
Richard A. Bovarnick, Esq., and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy