W.C. No. 4-385-490Industrial Claim Appeals Office.
January 29, 2002
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Felter (ALJ Felter) which denied the respondent’s claim for recovery of an “overpayment” and awarded the claimant ongoing medical benefits after maximum medical improvement (MMI). In this claim, which was reopened based on a worsened condition, the respondent contends the evidence compelled the ALJ to find the claimant’s condition improved so as to reduce the claimant’s prior impairment rating. Further, the respondent contends the ALJ failed to give sufficient deference to the impairment rating of a Division-sponsored independent medical examination (DIME) physician. Consequently, the respondent contends the claimant received an “overpayment” of permanent partial disability benefits which it is entitled to recover. The respondent also disputes the sufficiency of the evidence to support the ALJ’s award of ongoing medical benefits after MMI. We affirm.
The claimant was injured in a compensable automobile accident on June 28, 1998. The claimant’s treating physician placed the claimant at MMI on April 1, 1999, with a medical impairment rating of 26 percent of the whole person. Although we are unable to locate a copy of this rating in the record, the report of Dr. Ryan, dated April 6, 2001, states the rating was based on impairment of the cervical, thoracic, and lumbar spine. The respondent filed a final admission of liability for permanent medical impairment benefits based on the treating physician’s impairment rating, and the claimant apparently received the award in a discounted lump sum.
Soon after the date of MMI, the treating physician began to prescribe additional treatment including physical therapy. The claimant then filed a petition to reopen based on a worsened condition. By order dated December 17, 1999, ALJ Friend found the condition had worsened, and he awarded additional medical benefits and temporary total disability benefits commencing October 28, 1999. So far as the record reveals, this order was not appealed.
Following a course of physical therapy and a trigger point injection, one of the claimant’s treating physicians, Dr. Olsen, placed the claimant at MMI on May 1, 2000, with a 9 percent whole person impairment rating. This rating was based on an 8 percent rating for a specific disorder and reduced range of motion in the lumbar spine, plus 1 percent impairment attributable to reduced range of motion in the claimant’s left shoulder. Following issuance of Dr. Olsen’s report, the respondent filed a final admission of liability claiming an “overpayment” of $23,412, based on the difference between the amount owed for a 26 percent whole person impairment rating and the amount owed for a 9 percent whole person impairment rating.
Subsequently, the claimant requested a DIME. On October 26, 2000, the DIME physician issued a report finding the claimant has a zero percent impairment. This rating was based on the DIME physician’s opinion that the “impact in a motor vehicle accident of this nature is not severe enough to cause injury to any occupants of the motor vehicle.” In support of this conclusion the DIME cited “several other cases that I have had in which engineering reports have indicated that it is impossible to injure the cervical or lumbar spine, or extremities in such a minimal impact collision.” Based on this report the respondent filed another final admission of liability increasing the claimed overpayment to $43,312.
The claimant applied for a hearing on the issues of ongoing medical treatment after MMI, permanent total disability, and the respondent’s assertion that it is entitled to recover an overpayment from the claimant. At the hearing, the claimant withdrew any claim for permanent total disability benefits or additional permanent partial disability benefits.
On June 28, 2001, ALJ Felter entered the order under review. The ALJ found there was “no persuasive evidence” that the “minimal treatment” and “evaluations” provided by Dr. Olsen and the DIME physician resulted in any improvement in the claimant’s degree of permanent impairment. Further, the ALJ found there was no persuasive evidence that the claimant’s condition improved, and that Dr. Olsen and the DIME physician simply expressed a difference of opinion with the original treating physician concerning the claimant’s degree of impairment. Because ALJ Felter concluded the claimant “did not improve to a lesser degree of permanent impairment after her case was reopened,” he rejected the respondent’s contention that it is entitled to recover an overpayment. ALJ Felter also found, based on the opinions of Dr. Olsen, that the claimant is entitled to ongoing medical benefits after MMI.
I.
On review, the respondent first contends the ALJ incorrectly applied the burden of proof with respect to the impairment rating of the DIME physician. According to the respondent the issue was not whether, as the ALJ found, the respondent proved there was an improvement in the claimant’s physical condition which reduced his overall medical impairment, but whether the claimant overcame by clear and convincing evidence the zero percent impairment rating issued by the DIME physician. We are not persuaded there was any error.
Section 8-43-303(1), C.R.S. 2001, permits reopening based are a “change in condition.” A change in condition refers to a change in the claimant’s physical or mental condition which can be causally connected to the original compensable injury. See Chavez v. Industrial Commission, 714 P.2d 1328 (Colo.App. 1985). The claimant may seek reopening for a worsened condition when the degree of permanent disability has changed, or for the more limited purposes of obtaining additional medical or temporary disability benefits. See Richards v. Industrial Claim Appeals Office, 996 P.2d 756 (Colo.App. 2000). Thus, reopening for a worsened condition is not dependent on proof that the degree of permanent disability has changed. Dorman v. B W Construction, 765 P.2d 1033 (Colo.App. 1998).
Once a claim is reopened, benefits previously ordered may be “ended, diminished, maintained, or increased.” Section 8-43-303(1). Thus, the statute does not bar findings as to either a change in the time of a disability or a change in the extent of the disability originally found. Kuziel v. Pet Fair, Inc., 948 P.2d 403 (Colo.App. 1997). However, reopening based on a change in condition does not permit relitigation of every potential issue. Rather, the question is restricted to the “extent of improvement or worsening of the injury on which the original award was based,” and “neither party can raise original issues such as work-connection, employee or employer status, occurrence of a compensable accident, and degree of disability at the time of the first award.” 8 Larson’s Workers’ Compensation Law, § 131.03 [2] [a]. The burden of proof to show change in condition is normally on the party asserting the change, although in some cases the burden may shift to the other party once the moving party has established its case. 8 Larson’s Workers’ Compensation Law, § 131.03[3][c] ; Richards v. Industrial Claim Appeals Office, supra (claimant had burden of proof to demonstrate worsened condition and entitlement to additional benefits).
The respondent’s position on appeal is that because the DIME physician gave a zero percent impairment rating, the claimant was required to overcome the rating by clear and convincing evidence. The respondent relies on § 8-42-107(8)(c), C.R.S. 2001, which provides that the finding of the DIME physician concerning medical impairment “shall be overcome only by clear and convincing evidence.” Of course, this principle applies not only to the DIME physician’s rating of medical impairment, but also to the DIME physician’s determination that a particular component of the claimant’s impairment was or was not caused by the industrial injury. See Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998).
However, in our view, the respondent’s argument fails to account for the fact that it is the respondent which seeks to alter the claimant’s entitlement to permanent partial disability benefits based on the underlying assumption that the claimant’s condition permanently improved. First, the claimant did not prove, nor did she ever seek to prove, that her condition permanently improved as a result of th worsened condition which ALJ Friend found to have existed. To the contrary, the claimant has sought only additional medical and temporary disability benefits. Under these circumstances, we hold that the burden of proof shifted to the respondent to prove that the claimant’s condition permanently improved, and if so, the degree of permanent improvement.
Moreover, we do not believe the DIME physician’s impairment rating, issued in accordance with § 8-42-107(8)(c), is entitled to any special deference with respect to the initial question of whether the respondent proved that the claimant’s condition permanently improved. The following language from our decision in Cordova v. Foundation Builders, Inc., W.C. No. 4-296-404 (April 20, 2001), is pertinent.
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, 12 P.3d 844
(Colo.App. 2000) (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 provide Grover-style medical benefits).
Further, the DIME physician’s opinion in this case runs afoul of the rule that “original issues” may not be redetermined in a change of condition reopening. The DIME physician did not opine there was any permanent improvement in the claimant’s medical impairment when compared to the original date of MMI. Rather, the DIME physician simply asserted the claimant could not have sustained any permanent impairment as a result of the car accident, and all physicians who opined to the contrary (including the original treating physician who assigned the 26 percent rating on which the respondent’s initial final admission was predicated) were simply mistaken.
The respondent also argues the evidence does not support the ALJ’s findings insofar as they determine the respondent failed to prove the claimant’s condition permanently improved. The respondent asserts the ALJ mischaracterized Dr. Olsen’s treatment as “minimal,” and asserts the ALJ was not qualified to make such an assessment. The respondent also points out that the DIME physician could not have rendered any treatment. However, we find no error.
The question of whether the respondent proved the treatment received after the initial date of MMI permanently improved his condition was one of fact for determination by the ALJ. See Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999). Thus, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301 (8), C.R.S. 2001. Where, as here, there is medical evidence bearing on the question, it is a matter for the ALJ to determine the weight and credibility of such evidence. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The respondent’s assertion notwithstanding, substantial evidence supports the ALJ’s finding that the respondent failed to prove an improved condition resulting in a change in the claimant’s permanent impairment. First, the claimant herself testified that although her condition initially improved, it went “back to the way I was prior to the treatment.” (Tr. p. 51). Although Dr. Olsen gave the claimant a lower rating than the original treating physician, it is not clear that the lower rating was based on any alleged improvement in the claimant’s permanent impairment rather than a difference of opinion with the original treating physician concerning the appropriate rating. The ALJ was not persuaded that Dr. Olsen’s impairment rating was evidence of an improved condition rather than evidence of a difference of opinion concerning the propriety of the original treating physician’s rating. (Finding of Fact 9). Similarly, as we have already held, the DIME physician’s rating was predicated on the underlying issue of causation, not the question of whether the claimant’s condition improved after additional treatment. For this reason, the ALJ did not find the DIME physician’s impairment rating to be persuasive. (Finding of Fact 8).
The respondent’s assertion that the ALJ lacked sufficient knowledge to interpret and assess the medical opinions is without merit. Indeed, as we have pointed out, assessment of the weight and credibility of such evidence is the ALJ’s express responsibility. Rockwell International v. Turnbull, supra.
It follows from this conclusion that the respondent failed prove its entitlement to recover an overpayment. Thus, we need not consider additional arguments concerning proper resolution of the case had the respondent met its burden of proof.
II.
The respondent next contends substantial evidence does not support the ALJ’s award of ongoing medical benefits under Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). Essentially, the respondent asserts the claimant’s testimony concerning the need for such treatment was incredible, and the respondent points to certain medical evidence in the record tending to support that conclusion. We find no error.
An ALJ may order the employer to provide future medical treatment if substantial evidence supports a finding that future treatment may reasonably be necessary to relieve the claimant from the effects of the injury. Further, there is no requirement that the claimant actually been receiving the treatment at the time of MMI if the record supports an inference that such treatment will be needed. See Holly Nursing Care Center, 992 P.2d 701 (Colo.App. 1999).
Substantial evidence is that quantum of probative evidence which will support a reasonable belief in the existence of a fact without regard to contrary evidence or inferences. Further, it is the ALJ’s province to assess the credibility of witnesses and the probative value of evidence. Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524
(Colo.App. 1996).
Here, Dr. Olsen’s report of May 1, 2000, states the claimant needs access to a health club over the next 12 months, needs an independent exercise program, and is “a candidate to return to my office for six to eight trigger point injections over the next year in either the right or left upper trapezius.” The ALJ found this evidence credible, and it fully supports the award of Grover medical benefits. The fact that other findings and conclusions might have supported a contrary decision is immaterial on review. We note, however, that if the respondent disputes the reasonableness and necessity of, or the cause of the need for specific treatment, it remains free to contest specific benefits on those grounds. Grover v. Industrial Commission, 759 P.2d at 712.
IT IS THEREFORE ORDERED that the ALJ Felter’s order dated June 28, 2001, 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. 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 January 29, 2002 to the following parties:
Michelle Felix, P. O. Box 18864, Denver, CO 80218
City and County of Denver, 1675 Broadway, #1600, Denver, CO 80202-4755
Olivia L. Hudson Smith, Esq., 1675 Broadway, #1600, Denver, CO 80202 (For Respondent)
BY: A. Pendroy