W.C. No. 4-691-723.Industrial Claim Appeals Office.
July 2, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated November 6, 2008 that determined the claimant had reached maximum medical improvement (MMI) on March 20, 2007 and the claimant’s average weekly was $613.68. The ALJ ordered that the claimant would receive medical maintenance benefits and both temporary partial total disability benefits for the period of January 17, 2007 until March 20, 2007. We affirm.
The petition to review contains only general allegations of error, derived from § 8-43-301(8), C.R.S. 2008. Moreover, the claimant has not filed a brief in support of his petition to review and, therefore, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986). We note that the average weekly wage found by the ALJ appears to be the same as proposed by the claimant in his proposed findings of fact. The award of temporary disability benefits was terminated as of March 20, 2007, which was the date that the Division-sponsored independent medical examination (DIME) physician placed the claimant at MMI. It appears to us that the controversy on appeal is whether the claimant had overcome the opinion of the DIME physician on the issue of MMI.
The ALJ made the following findings of fact with record support. On June 13, 2006, the claimant sustained an industrial injury to his right wrist and was placed at MMI by his authorized treating physicians on March 20, 2007. The claimant underwent a DIME and the DIME physician agreed with the MMI date of March 20, 2007. Exhibit G at 48. During the period of November 2007 through February 2008 the claimant saw Dr. Derrisaw, who determined that the claimant was experiencing the onset of Chronic
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Regional Pain Syndrome (CRPS). However, Dr. Reichhardt testified that it was unlikely that the claimant suffered from CRPS and in any event the claimant’s condition had not worsened, so the claimant remained at MMI and any additional treatment should be considered medical maintenance. Exhibit H at 55, 76; Reichhardt Depo. at 24. The DIME physician, when presented with post-MMI medical evidence about the claimant’s condition, stated he simply could not offer an opinion absent additional evaluation, but he did not renounce his determination that the claimant reached MMI on March 20, 2007. The ALJ found that Dr. Reichhardt’s testimony supported the DIME physician’s opinion regarding MMI. The ALJ determined that the opinion of Dr. Derrisaw regarding additional diagnostic testing constituted only a difference of medical opinion regarding the extent of appropriate diagnostic testing. The ALJ concluded that the claimant failed to produce clear and convincing evidence to establish that it was highly probable that the DIME physician’s MMI determination was incorrect.
Pursuant to § 8-42-107(8)(b)(III), C.R.S. 2008, a DIME physician’s finding of MMI is binding on the parties unless overcome by clear and convincing evidence. Montoya v. Industrial Claim Appeals Office 203 P.3d 620 (Colo.App. 2008); Brownson-Rausin v. Industrial Claim Appeals Office of State 131 P.3d 1172 (Colo.App. 2005). “Clear and convincing” evidence has been defined as evidence which demonstrates that it is “highly probable” the DIME physician’s opinion 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, supra. 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. Section 8-43-301(8), C.R.S. 2008; Metro Moving Storage Co. v. Gussert, supra. 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. Metro Moving Storage Co. v. Gussert, supra. This standard of review is deferential and the scope of our review is “exceedingly narrow.” Id.
In our view the record evidence outlined above constitutes substantial evidence supporting the ALJ’s determination that the claimant had failed to overcome the DIME physician’s MMI determination by clear and convincing evidence. In addition, as noted by the respondents if the DIME physician offers ambiguous or conflicting opinions concerning MMI or impairment, it is for the ALJ to resolve the ambiguity and determine
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the DIME physician’s true opinion as a matter of fact. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000); Stephens v. North Air Package Express Services, W. C. No. 4-492-570 (February 16, 2005), affd, Stephens v. Industrial Claim Appeals Office (Colo.App., No. 05CA0491, Jan. 26, 2006) (not selected for publication). Here, the ALJ determined with record support that the opinion of the DIME physician was that the claimant reached MMI on March 20, 2007. Therefore we decline to interfere with the ALJ’s order on the issue of MMI.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 6, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
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ELIJAH GARCIA, STERLING, CO, (Claimant).
INDUSTRIAL WELDING SUPPLY CO, Attn: MS BEVERLY BUDD, STERLING, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
RING ASSOCIATES, PC, Attn: BOB L RING, ESQ., COLLINS, CO, (For Claimant).
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