W.C. No. 4-474-058Industrial Claim Appeals Office.
July 11, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Muramoto (ALJ) which denied his claim for permanent partial disability benefits. The claimant’s principal contention is that the evidence does not support the ALJ’s finding that the respondents overcame the medical impairment rating of the Division-sponsored medical examination (DIME) physician by clear and convincing evidence. The claimant also raises arguments concerning the fairness of the DIME proceeding and the denial of his request for a continuance of the hearing. We affirm.
The claimant sustained a compensable injury when he was shocked by a defibrillator on September 13, 2000. Thereafter, the claimant reported a number of symptoms to the treating physicians including chest pain, diaphoresis and anxiety.
One of the treating physicians, Dr. Roth, placed the claimant at maximum medical improvement (MMI) on November 28, 2000, with no medical impairment. By this time, the claimant was reporting difficulties with speech, including stuttering. However, Dr. Roth found no objective evidence of injury supporting any of the claimant’s symptoms.
The claimant requested a DIME, which was performed on December 19, 2001. The claimant gave a history of speech difficulties since the industrial injury, as well as intermittent severe pain in the left shoulder. The DIME physician assigned a 12 percent whole person impairment rating for a “dysphonic, spastic voice,” and an 11 percent upper extremity rating for a myofascial pain syndrome causing reduced range of motion of the shoulder joint. The respondents applied for a hearing to challenge the DIME physician’s impairment rating, contending that the electrical shock injury did not cause the dysphonia or the left shoulder problems.
The ALJ concluded the respondents proved by clear and convincing evidence that the DIME physician incorrectly found the claimant’s impairments were caused by the industrial shock injury. With regard to the speech problem diagnosed as dysphonia, the ALJ credited the opinion of Dr. Roth that the dysphonia antedated the industrial injury. This conclusion was corroborated by a medical record showing the claimant sought treatment for speech problems on June 28, 2000, three months before the industrial injury. The ALJ also credited Dr. Roth’s opinion that there was no evidence the shock injury caused reduced range of motion in the shoulder. Instead, Dr. Roth opined this condition was caused by long-standing degenerative arthritis. In support of this conclusion, the ALJ noted the claimant did not report symptoms of left arm or shoulder pain to any of the treating physicians, despite telling the DIME physician that the symptoms were severe.
I.
On review, the claimant challenges the sufficiency of the evidence to support the ALJ’s determination that the respondents presented clear and convincing evidence to overcome the DIME physician’s finding that the shock injury caused dysphonia and shoulder impairment. Essentially, the claimant argues the ALJ improperly relied on Dr. Roth’s opinions, disregarded the claimant’s evidence, and incorrectly recited the overall state of the evidence. We have considered these arguments and find no error.
The ALJ concluded the respondents had the burden to prove by clear and convincing evidence that the DIME physician incorrectly found the dysphonia and shoulder impairment were caused by the industrial injury. This represents a correct application of the burden of proof with respect to the dysphonia, which does not appear on the schedule of disabilities. Section 8-42-107(8)(c), C.R.S. 2002. Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998). It is debatable whether the same elevated burden of proof applied when determining the cause of the scheduled injury to the left upper extremity. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002) (DIME opinion concerning cause of worsened condition not entitled to presumptive effect); Delaney v. Industrial Claim Appeals Office, 30 P.3d 691
(Colo.App. 2000) (DIME physician’s rating was relevant to, but not entitled to presumptive effect concerning whether or not claimant sustained a scheduled or whole person injury); Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998) (DIME process not applicable to scheduled injuries). However, if there was any error in the application of the burden of proof it benefited the claimant. Thus, we need not consider whether the preponderance of the evidence standard applies when a DIME physician finds both scheduled and non-scheduled impairments and the respondents seek to challenge the DIME physician’s opinion that the scheduled rating was caused by the industrial injury.
The question of whether a DIME physician’s rating has been overcome by clear and convincing evidence is one of fact for determination by the ALJ. Wackenhut Corp. v. Industrial Claim Appeals Office, 17 P.3d 202
(Colo.App. 2000). Consequently, the ALJ’s findings must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This is a narrow standard of review which requires us to view the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). We particularly note that the weight and credibility accorded expert medical opinion is a matter for the ALJ. Cordova v. Industrial Claim Appeals Office, supra.
Moreover, the ALJ is not obligated to make specific findings of fact concerning evidence which the ALJ concludes is not persuasive. It is only required that the ALJ enter findings concerning the evidence which is found to be dispositive of the issues involved. Evidence not mentioned in the order was presumably rejected. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
The claimant challenges the ALJ’s reliance on Dr. Roth’s opinions because Dr. Roth is not a “burn expert,” because Dr. Roth did not order an esophogram, and because Dr. Roth relied on lay reports that the claimant exhibited pre-injury speech problems. The fact that Dr. Roth was not qualified a s a “burn expert” went to the weight, not the admissibility of his opinions. Dr. Roth was qualified as a medical expert, and the claimant did not object to his testimony, including his opinions concerning the causation issues. Consequently, the claimant may not now dispute the ALJ’s decision to credit Dr. Roth’s opinions. CRE 103(a)(1); Corodova v. Industrial Claim Appeals Office, supra.
Dr. Roth testified that an esophogram would have been of little use in diagnosing dysphonia caused by shock. (Tr. Pp. 30-31, 36, 44-45). It was for the ALJ to assess the credibility of this testimony. Further, the fact that Dr. Roth relied on lay reports of preexisting speech problems did not require the ALJ to discredit the testimony. In fact, the ALJ found the lay reports considered by Dr. Roth were corroborated by the medical report showing treatment for dysphonia on June 28, 2000. (Finding of Fact 12).
The claimant also challenges Dr. Roth’s testimony concerning the cause of the shoulder problem because Dr. Roth did not examine the shoulder. However, Dr. Roth testified the claimant did not complain of shoulder problems so there was no reason to examine the shoulder. (Tr. P. 28). Moreover, Dr. Roth explained why degenerative arthritis rather than the electrical shock is the most likely cause of the shoulder complaints. (Tr. P. 18).
The claimant next contends the ALJ erred by “ignoring” Dr. Hartford and lay witnesses who testified the claimant did not exhibit speech problems before the injury. These witnesses, including Dr. Hartford, were acquaintances of the claimant who spoke with the claimant in the course of his employment. However, the ALJ implicitly rejected this testimony and relied on conflicting lay evidence and the June 28 medical record showing pre-injury treatment for dysphonia. The ALJ implicitly resolved conflicts in the evidence and made findings which favored the respondents. This was not error. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra.
The claimant next contends that contrary to the ALJ’s findings, he did report upper extremity injuries to the treating physicians. Apparently, this argument refers to Finding of Fact 14 where the ALJ stated that it “strains credulity that there is no mention of left shoulder pain in the record of no fewer than four treating physicians, but at the DIME there are complaints of dramatic left shoulder pain going back to the date of the industrial injury.” (Emphasis added).
The only evidence cited by the claimant to refute Finding of Fact 14 is a note from Dr. Ramaswamy, a treating physician who examined the claimant on September 25, 2000. On that date Dr. Ramaswamy recorded the claimant reported numbness in both hands when awakening. However, the note does not mention pain in the left arm or shoulder. Consequently, the note does not refute the ALJ’s finding or demonstrate the ALJ failed to consider relevant evidence.
The claimant also contends that the ALJ incorrectly found that none of the “consulting” physicians found a relationship between the electrical shock and the claimant’s symptoms. (Conclusion of Law 3). The claimant alleges that Dr. Rossie, a physician who examined the claimant at the request of claimant’s counsel, found such a relationship. However, Conclusion of Law 3 must be read in the context of Findings of Fact 14 and 15. It is apparent from these findings of fact that the ALJ’s mention of “consultations” in Conclusion of Law 3 refers to consulting physicians who examined the claimant as part of the course of authorized treatment. Thus, we infer the ALJ did not find Dr. Rossie’s opinions to be persuasive.
Insofar as the claimant makes other arguments concerning the sufficiency of the evidence to support the order, we find them to be without merit. Further, we understand the ALJ’s order as implicitly rejecting the contention that there was compensable “aggravation” of the claimant’s preexisting conditions.
II.
The claimant next contends the ALJ violated his due process rights by considering the DIME physician’s report. The basis of this argument is that the claimant “discovered,” apparently after conclusion of the hearing, that the DIME physician contacted a speech therapy business which was treating the claimant’s speech disorder.
The ALJ made no explicit ruling concerning the request to present additional evidence to challenge the propriety of the DIME physician’s conduct. However, by transmitting the matter to us the ALJ implicitly rejected the argument that the proceedings should be reopened to admit additional evidence. See Raffaello v. Industrial Commission, 670 P.2d 805
(Colo.App. 1983).
The ALJ is given wide discretion in the conduct of evidentiary proceedings, including the question of whether to allow the presentation of additional evidence after the apparent conclusion of the evidentiary proceedings. Section 8-43-301(5), C.R.S. 2002; IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). Factors which may be considered are whether the evidence is likely to be outcome determinative, the expense and inconvenience to the opposing party if additional proceedings are held, and whether the evidence could have been discovered and presented at the hearing through the exercise of due diligence. See Aspen Skiing Co. v. Peer, 804 P.2d 166 (Colo. 1991) Potomac Insurance Co. v. Industrial Commission, 744 P.2d 765 (Colo.App. 1987); IPMC Transportation Co. v. Industrial Claim Appeals Office, supra.
Here, we perceive no abuse of discretion in the ALJ’s refusal to permit additional evidentiary proceedings. The speech therapy document to which the claimant refers purports to show that on December 19 the IME physician contacted the speech therapy office and inquired whether the claimant had been treated with botox. While the DIME physician may have acted improperly in making this contact, it is not readily apparent how this contact could have influenced his rating or his opinion concerning causation. Thus, we do not understand how this evidence, or any likely to be discovered as a result, could be outcome determinative. Moreover, the note was made six months before the hearing on June 19, 2002, and was presented as evidence by the claimant at the hearing. (Claimant’s Exhibit 3, P. 16). Claimant’s counsel failed to attend the deposition of the DIME physician on April 12, 2002. Thus, the evidence was not “newly discovered,” and the claimant fails to explain how he was prevented from making a timely inquiry into the propriety of the DIME process, and raising pertinent arguments at or before the hearing. Under these circumstances the claimant did not exhibit due diligence. Finally, the respondents would experience delay and additional expense if the proceedings were to reopened for an inquiry into the propriety of the DIME physician’s conduct.
III.
The claimant contends that it was error to deny his April 25, 2002, request for a continuance. The stated reason for the request was to allow additional time to assess Dr. Rossie’s report prior to the hearing. The request was denied by order of ALJ Friend dated May 3, 2002, because no good cause had been shown to grant it. A request for reconsideration was also denied.
The ALJ may grant a continuance for good cause shown. Section 8-43-207(1)(j), C.R.S. 2002. The ALJ has discretion to determine the issue, and may consider the factors cited above.
Here, there was no abuse of discretion. The DIME report was issued in December 2001. If the claimant wished to challenge the DIME report as to MMI, or to establish permanent psychological impairment, there was ample time to gather the pertinent medical evidence. Insofar as the record reveals, the claimant never indicated an intention to challenge the DIME physician’s determination of MMI or the impairment rating until he requested the continuance. Moreover, the claimant did not obtain the examination from Dr. Rossie until April 24, 2002. The claimant has not explained this delay. Under these circumstances we perceive no abuse of discretion in ALJ’s refusal to grant a continuance for the claimant to further assess the evidence and, perhaps, challenge the DIME.
We also note that Dr. Rossie’s report was introduced into evidence. Although the report might have provided a basis for challenging the DIME physician’s MMI determination, the claimant did not request that this issue be considered by the ALJ.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 30, 2002, 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. 2002. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed July 11, 2003 to the following parties:
Jerry Halsey, 1109B S. Alton St., Denver, CO 80247
Candace O’Rourke, University of Colorado Hospital, 4200 E. 9th Ave., Campus Box A028, Denver, CO 80262
Legal Department, Pinnacol Assurance — Interagency Mail
D. Dale Sadler, Esq., One DTC, Suite 690, 5251 DTC Pkwy., Greenwood Village, CO 80111 (For Claimant)
Mark H. Dumm, Esq., and Michelle N. Young, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210 (For Respondents)
By: A. Hurtado