W.C. No. 4-550-340.Industrial Claim Appeals Office.
November 28, 2006.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cain (ALJ) dated June 29, 2006 that determined that the claimant failed to overcome the Division-sponsored independent medical examination (DIME) and that therefore denied further permanent partial disability benefits. We affirm.
A hearing was held on several issues, one of which was whether the claimant was able to overcome by clear and convincing evidence the DIME report stating that she had zero percent impairment resulting from the compensable injury. Following the hearing the ALJ entered findings of fact that may be summarized for purposes of this order as follows. On January 23, 2002 the claimant sustained compensable injuries when she slipped and fell in an icy parking lot. On January 24, 2002, she was treated by Dr. Mitchell, who diagnosed a closed head injury, a left shoulder strain, a cervical strain, and a lumbar strain. She then underwent a course of physical therapy and was seen by Dr. Aschberger, who reported “mild lumbar findings and “good gains.” An MRI performed in April 2003 disclosed degenerative disc and facet changes; however, Dr. Conforti reported that “no significant pain generators” were discovered. The claimant returned to Dr. Mitchell on May 15, 2002, and then underwent an MRI of the lumbar spine on May 31, 2002. It revealed disc degeneration, but no disc protrusion or nerve root compromise. An MRI of the cervical spine revealed mild bulging at the C4-5 level with degenerative changes at other levels. The claimant was referred to a psychologist, Donna Bar-Navon, for a “biofeedback evaluation.” Bar-Navon conducted “re-education” and “training” sessions, and observed that when the claimant left at the end of the sessions she “displayed no limitations through range of motion movement and encouragingly displayed proper pacing for these activities.” Dr. Mitchell determined that the claimant reached maximum medical improvement on May 23, 2003, with medical impairment equal to 52 percent of the whole person. In September 2003 the claimant underwent a DIME conducted by Dr. Tanner. Dr. Tanner reported that the claimant had not reached maximum medical improvement and recommended a course of osteopathic manipulation. That treatment was completed, with no improvement in the claimant’s condition, and Dr. Tanner conducted a second DIME on June 4, 2004. During the examination Dr. Tanner noted inconsistencies in the claimant’s range of motion testing and he subsequently observed her after she left the building. He noted that in the parking lot the claimant was able to move in ways that were inconsistent with her examination and Dr. Tanner characterized her activities as “near fraudulent.” Based upon his observations he rated the claimant’s impairment as zero percent. The claimant then underwent an independent medical examination conducted by Dr. Goldman, who rated the claimant’s impairment at 33 percent of the whole person.
Based upon his factual findings, the ALJ concluded that the claimant failed to overcome the DIME report by clear and convincing evidence. Accordingly, the ALJ denied further permanent partial disability benefits and the claimant appealed. The claimant argues that the record compels the conclusion that Dr. Tanner’s DIME report was overcome by clear and convincing evidence. However, we are unpersuaded that the ALJ erred.
Section 8-42-107(8)(c), C.R.S. 2006, provides that the DIME physician’s finding of medical impairment is binding unless overcome by clear and convincing evidence. “Clear and convincing” evidence has been defined as evidence which demonstrates that it is “highly probable” the DIME physician’s rating is incorrect. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The question whether the claimant has overcome the DIME by clear and convincing evidence is one of fact for the ALJ’s determination Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). This is true despite the elevated standard of proof required to overcome a DIME: “[I]rrespective of whether the standard of proof at the administrative adjudicatory level of proceedings is clear and convincing, beyond a reasonable doubt, or merely a preponderance of the evidence, it is solely for the trier of fact to determine the persuasive effect of the evidence and whether the burden of proof has been satisfied.” Id., 914 P.2d at 414. Therefore, the standard of review remains whether the ALJ’s findings of fact are supported by substantial evidence in the record. Id.; § 8-43-301(8), C.R.S. 2005. Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995). This standard of review is deferential and the scope of our review is “exceedingly narrow.”Metro Moving Storage Co. v. Gussert, supra.
Under this standard of review it is the ALJ’s sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. We may not substitute our judgment for that of the ALJ regarding credibility matters unless there is such hard, certain evidence contradicting the ALJ’s determination that it would be error as a matter of law. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). The existence of evidence in the record which, if credited, might permit a contrary result also affords no basis for relief on appeal Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). Moreover, the ALJ’s order is sufficient for purposes of review if the legal and factual bases of the order are apparent from the findings of fact and conclusions of law. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Furthermore, inconsistencies, contradictory evidence, and incomplete testimony are not uncommon in workers’ compensation claims and it was the ALJ’s sole prerogative as the fact finder to resolve any inconsistencies in the testimony. See West v. Aranda (Colo.App. No. 92CA1576, July 1, 1993) (not selected for publication). Here, as it was his sole prerogative to do, the ALJ weighed the competing medical evidence and determined its respective probative value. The ALJ’s findings and conclusions are reasonable inferences drawn from the record and we may not disturb the order.
Contrary to the claimant’s argument, the record contains substantial evidence supporting the ALJ’s determination that the claimant failed to overcome the DIME report. Conversely, the evidence in the record does not compel the conclusion that the DIME doctor’s impairment rating was overcome by clear and convincing evidence. Dr. Tanner stated in his written report that his physical examination of the claimant was characterized by “effort problems,” and “effort deficits,” which the doctor stated were “overcome” by application of “the quick delivery of forces” on the doctor’s part. The doctor noted that during the claimant’s cervical range of motion testing she showed flexion that was “almost nonexistent” and her extension was “virtually none.” However, the doctor stated that, when writing his notes, he noticed “her turning her head considerably more than [when] she was being tested.” He also observed apparently “contradictory” measurements of her hip flexion and her lumbar flexion. The doctor reported that, because he did not believe that the claimant had exerted full effort during the examination, he observed her in the parking lot. He stated that she had no difficulty entering the car, despite the fact that her sacral flexion in doing so was much greater than her maximum effort during the examination. She also exhibited “much more significant ranges of motion” of her cervical spine than in the examination. The doctor concluded that “[a]ll objective medical testing has proved to be negative,” and that any “positive” findings were likely the result of “poor efforts” on the part of the claimant. Dr. Tanner concluded that he had “deep concern” of “near fraudulent activity.” He stated that, based upon the AMA Guides to the Evaluation of Permanent Impairment (AMA Guides) the claimant sustained no ratable impairment as a result of her compensable injury.
In addition to his written report, Dr. Tanner also testified at the hearing. He explained that during his testing of the claimant’s range of motion she exhibited “barely any movement,” which in his experience was “unusual.” Tr. at 130. When the doctor noticed that she moved more freely when not being tested he originally ascribed the discrepancy to anxiety and explained to the claimant that the accuracy of his testing required that she “give a good effort.” Tr. at 130. The doctor then testified that the results of his testing continued to be “suspicious” and that his observations of the claimant while leaving the clinic “invalidated everything.” Tr. at 131. Further, Dr. Tanner testified that he believed that he correctly and appropriately applied the AMA Guides in discounting the claimant’s tests and rating her at zero percent impairment. Dr. Tanner’s repor t and his testimony, taken together, provide ample evidence supporting the ALJ’s determination.
Unquestionably the record contains evidence that, if credited by the ALJ, would have provided substantial evidence supporting a contrary conclusion. However, the existence of such evidence provides the claimant with no relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). Moreover, the ALJ provided the parties with a detailed explanation for his resolution of the dispute over the DIME rating. Hence, the ALJ entered detailed and specific findings outlining the competing evidence, especially the opinions of Dr. Goldman and Dr. Mitchell. Although the ALJ did not expressly reject Dr. Goldman’s opinions as not credible, he did note that they were simply not sufficiently persuasive to overcome the DIME report given the enhanced burden. It is evident from the ALJ’s order that he considered and weighed a ll of the evidence, that he was aware of the applicable burden, and that he correctly applied the relevant law. Essentially, the claimant’s argument amounts to a request that we reweigh the evidence. We have no authority to do so and therefore affirm the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 29, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Shirlee Gaccetta, Aurora, CO, Marshall A. Fogel, Esq., Fogel, Keating, Wagner, Polidori Shafner, PC, Denver, CO, (For Claimant).
Risk Management, City of Aurora, Sheryl A. Shelby, Aurora, CO, Charles W. Hemphill, Esq., Littleton, CO, (For Respondents).