W.C. No. 4-476-933.Industrial Claim Appeals Office.
March 10, 2005.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ) which awarded medical and disability benefits. The respondents contend the ALJ erroneously determined the claimant overcame the Division-sponsored independent medical examination (DIME) physician’s permanent impairment rating. We disagree and, therefore, affirm.
In 2000 the claimant suffered an admitted right shoulder injury. In November 2000 the claimant underwent a right distal clavicle resection which led to a worsening of the industrial injury. Later that month the claimant began suffering syncopal episodes. On September 6, 2001, the claimant underwent a tilt table test during which she experienced a syncopal episode and her blood pressure dropped. The claimant was referred for additional testing to rule out other cause for the syncopal episodes.
Dr. Adams, a neurologist, opined the syncopal episodes reflected a vasovagal response to pain from the industrial injury. Dr. Polanco and the treating physician, Dr. Tyler, concurred. Dr. Parry, a neurologist agreed that pain from the industrial injury triggered the vasovagal responses.
In an order dated March 31, 2003, an ALJ determined the claimant proved the syncopal episodes were causally related to the industrial injury. We affirmed the order on appeal.
In November 2003, Dr. Tyler opined the claimant reached maximum medical improvement with 20 percent impairment to the right upper extremity, 14 percent impairment to the cervical spine and 12 percent mental impairment. Dr. Tyler also opined the claimant suffered an additional 20 percent whole person impairment from the syncope condition.
The DIME physician, who was not a neurologist, opined the syncopal episodes were not caused by the industrial injury. Further, the DIME physician found no permanent mental impairment or impairment to the cervical spine. Instead the DIME physician assigned 17 percent impairment to the right upper extremity, which converts to 10 percent whole person impairment.
Insofar as pertinent, the ALJ found the claimant overcame the DIME physician’s opinion that the syncopal episodes were not related to the industrial injury. Then pursuant to the parties’ stipulation, the ALJ found the syncopal condition caused 20 percent whole person impairment.
On review the respondents contest the sufficiency of the evidence to support the ALJ’s finding that the claimant overcame the DIME physician’s opinion on the cause of the syncope condition. We perceive no basis to disturb the ALJ’s order.
Section 8-42-107(8)(c), C.R.S. 2004 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 clear and convincing evidence standard also applies to the DIME physician’s opinion on the cause of the impairment. This is true because causation is an inherent part of the diagnostic assessment which comprises the DIME process of rating permanent medical impairment. Qual-Med, Inc., v. Industrial Claim Appeals Office, supra.
The determination of whether the DIME physician’s opinion has been overcome is a question of fact for resolution by the ALJ. Consequently, we must uphold the ALJ’s determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004; See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002); Qual-Med, Inc. v. Industrial Claim Appeals Office, supra. The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ’s assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert, 914 P.2d at 415.
Initially we reject the respondents’ contention that the ALJ failed specifically to articulate the evidence she found clearly overcame the DIME physician’s opinions. Upon consideration of “all of the medical records, the testimony of the Claimant, Dr. Parry and the depositions,” the ALJ determined it was highly likely the syncope is related to the industrial injury. (Finding of Fact 38). Further, the ALJ explicitly found that Dr. Parry’s opinion concerning the relatedness of the syncopal episodes was “well-supported by the evidence and is very persuasive.” (Finding of Fact 26). In contrast, the ALJ determined the DIME physician’s opinions were “not at all persuasive,” and rejected the opinions of Dr. Repsher on grounds he was not an expert in syncope and Dr. Repsher’s record review was “at odds with numerous other physicians who have given an opinion on [the claimant’s] syncopal episodes.” (Findings of Fact 32, 37). Thus, the ALJ’s findings amply reflect that she relied on the medical evidence which was consistent with the claimant’s testimony that the syncopal episodes were triggered by residual pain from the injury. (Tr. p. 72).
Next, the respondents contend there is no evidence to support the ALJ’s findings that the DIME physician didn’t have “all relevant medical records” in rendering his opinions. Again, we disagree.
The DIME was conducted on January 7, 2004. In his report dated January 22, 2004, the DIME physician stated that, on the day of the exam he reviewed medical records “provided through Medical Ops Management, Inc.” The report cites several of those records but does not reference any of Dr. Tyler’s 2002 reports or any of Dr. Tyler’s 2003 reports prior to September 11, 2003. Although the DIME was not required to expressly note every medical record he reviewed, the ALJ could reasonably infer that in completing the DIME the DIME physician did not review some of the records of the treating physician, Dr. Tyler.
Further, the DIME reported that the record review ended with the September 11, 2003, report. Therefore, the ALJ reasonably could infer that the DIME did not have Dr. Barber’s November 14, 2003, report concerning the effect of the pacemaker implant for treatment of the syncopal episodes.
The respondents also contend the ALJ’s findings are internally inconsistent because the ALJ found the DIME physician’s opinion on the cause of the syncope is “entirely unsupported and conclusory,” (see
Finding of Fact 31), but also recognized that both Dr. Sparr and Dr. Repsher agreed with the DIME that the syncope was not compensable.
In rejecting the DIME physician’s opinions on causation of the syncope, the ALJ found the DIME physician:
“does not explain why he believes the syncope is not work-related, and in fact his opinion on relatedness is entirely unsupported and conclusory. He does not give an opinion regarding what might be causing the syncope.” (Finding of Fact 30).
Contrary to the respondents’ contention, the ALJ did not purport to find that no other physician supported the DIME physician’s conclusion concerning the causal relatedness of the syncope. Rather, the ALJ found the DIME physician did not attempt to explain or provide specific support for his medical conclusion, and that is a plausible reading of the DIME report. (Claimant’s Hearing Exhibit 8). In addition, insofar as the DIME physician relied on the opinions of Dr. Sparr and Dr. Silver, the DIME did not state what information he relied on in the reports of Dr. Sparr and Dr. Silver to conclude the syncope was unrelated.
The respondents’ remaining arguments essentially request that we reweigh the evidence and substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of Dr. Parry’s opinions. However, we have no authority to do so. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Further, the ALJ could, and did, reasonably infer that the evidence she found persuasive rose to the level of clear and convincing evidence that it was highly probable the DIME physician’s opinions on causation of the syncope were wrong. Therefore, the respondents have failed to establish grounds which afford us a basis to disturb the award of medical impairment benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 30, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Kathy E. Dean
Juanita Hancock, Colorado Springs, CO, Maxim Healthcare, Colorado Springs, CO, Reliance National Insurance Company, c/o Terry Thornburg, Specialty Risk Services, Denver, CO, Michael W. McDivitt, Esq. and Sheila Toborg, Esq., Colorado Springs, CO, (For Claimant).
Gregory Daniels, Esq., Denver, CO, (For Respondents).