W.C. Nos. 4-527-829, 4-554-366.Industrial Claim Appeals Office.
January 21, 2005.
FINAL ORDER
In these consolidated workers’ compensation cases the respondents seek review of an order of Administrative Law Judge Harr (ALJ) insofar as it determined they failed to overcome by clear and convincing evidence the medical impairment rating of a Division-sponsored independent medical examination (DIME) physician. The claimant seeks review of the order insofar as the ALJ found the claimant failed to prove that he sustained a compensable occupational disease caused by his employment. Both appeals also challenge the sufficiency of the evidence to support the ALJ’s findings and conclusions. We affirm.
I.
In W.C. No. 4-527-829, the claimant sustained a compensable back injury on July 6, 2001, while performing his duties as a truck driver for respondent Morgan County. The injury occurred when the claimant was knocked to the ground after a gas line ruptured. The claimant received a lengthy course of conservative treatment for low back symptoms, which included physical therapy, medications and lumbar facet injections. This treatment was supervised by Dr. Reichhardt.
Dr. Reichhardt placed the claimant at maximum medical improvement (MMI) on April 5, 2002, with no permanent impairment. The claimant then requested a DIME to rate impairment. The DIME physician assessed an 11 percent whole person impairment rating under the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides). The DIME physician assigned 5 percent impairment for a specific disorder of the lumbar spine pursuant to Table 53 (II)(B) of the AMA Guides, and 6 percent impairment based on reduced range of motion of the lumbar spine. Dr. Harder, an IME physician retained by the claimant assigned the same impairment rating as the DIME physician.
The respondents sought to overcome the DIME physician’s rating, relying principally on the reports and testimony of Dr. Reichhardt. Dr. Reichhardt testified the claimant’s reported pain levels were inconsistent with clinical findings and the doctor’s observations of the claimant, and that there were no objective findings on which to base a medically probable diagnosis for purposes of assigning a specific disorder rating. (Tr. Pp. 55-65).
However, the ALJ concluded the respondents failed to overcome the DIME physician’s impairment rating. The ALJ noted that Dr. Reichhardt testified he disagreed with the DIME physician’s assessment of the claimant’s credibility concerning the reports of ongoing pain. The ALJ credited Dr. Reichhardt’s opinion that the claimant “exaggerated” his pain, but also found that Dr. Reichhardt continued to treat the pain for a lengthy period of time. The ALJ also noted that Dr. Reichhardt “failed to explain” how the “claimant’s symptoms fail to support a specific diagnosis under Table 53 II-B,” and noted the DIME physician’s rating was corroborated by Dr. Harder. The ALJ concluded that this difference of opinion between medical experts was insufficient to overcome the DIME physician’s rating by clear and convincing evidence.
On review, the respondents contend the ALJ erred in finding that they failed to overcome the DIME physician’s rating. The respondents assert that there are “no objective findings” to support the Table 53 (II)(B) rating. Further, the respondents argue the order awards medical impairment benefits for “chronic pain” without “anatomic or physiologic correlation” based on “objective findings” in violation of §8-42-107(8)(c), C.R.S. 2004. See also § 8-42-101(3.7), C.R.S. 2004. Finally, the respondents dispute Finding of Fact 3 in which the ALJ found that the claimant’s physical therapist noted muscle spasms from July 6 through November 6, 2001. We perceive no error.
The medical impairment rating of the DIME physician is binding on the parties and the ALJ unless overcome by clear and convincing evidence. Section 8-42-107(8)(c). The questions of whether the DIME physician properly applied the AMA Guides in arriving at the rating, and ultimately whether the party challenging the rating has overcome it by sufficient evidence are issues of fact for determination by the ALJ. McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo.App. 1999).
Because these issues are factual in nature, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004. This standard of review requires us to view the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
A rating under Table 53 II B requires a “medically documented injury and a minimum of six months of medically documented pain and rigidity with or without muscle spasm.” McLane Western Inc. v. Industrial Claim Appeals Office, supra. The respondents assert that because the ALJ found the claimant’s pain complaints “were not credible” there is no factual basis for the Table 53 rating. However, the ALJ did not find the claimant’s pain reports were “were not credible.” Rather, the ALJ found that Dr. Reichhardt persuasively testified that the complaints were “exaggerated” and not reliable. The ALJ also found that Dr. Reichhardt provided substantial treatment for the claimant’s pain complaints and failed to explain how the claimant’s “symptoms” do not qualify for a specific diagnosis impairment rating. We infer from these remarks that the ALJ concluded the claimant did have some residual pain from the injury, although he tended to exaggerate it. This conclusion is underscored by the ALJ’s notation that Dr. Reichhardt admitted to a different assessment of the claimant’s credibility than that of the DIME physician, and the ALJ’s ultimate finding that Dr. Reichhardt’s testimony was not sufficient to overcome the DIME physician’s rating. Moreover, as the ALJ found, the DIME physician’s application of Table 53 is corroborated by Dr. Harder’s impairment rating.
The respondents also contend there is insufficient evidence of “rigidity.” However, the ALJ credited the reports of the physical therapist that the claimant exhibited muscle spasm from July through November 2001. (Finding of Fact 3). Although the respondents argue the ALJ misinterpreted the physical therapy reports because the November 26 report contains the same description of the claimant’s symptoms as the July 6 report, we may not substitute our judgment for that of the ALJ concerning the proper interpretation of this documentary evidence. The ALJ plausibly interpreted the reports as reflecting continuous muscle spasms, and the fact that another interpretation is possible affords no basis for relief on appeal. Similarly, the weight to be assigned these reports was for the ALJ. Finally, the DIME physician recorded valid range of motion impairment in the lumbar spine. Although Dr. Reichhardt opined the claimant could have deliberately falsified the measurements, it was for the ALJ to assess the probative value of that opinion. Wilson v. Industrial Claim Appeals Office, supra.
The respondents further contend the ALJ erred because the impairment rating is based on chronic pain without objective evidence of anatomic or physiologic correlation. Section 8-42-107(8)(c). First, because the ALJ found the claimant has a specific disorder of the lumbar spine which is ratable under Table 53 of the AMA Guides, and that finding was not overcome by clear and convincing evidence, this is not a case in which the impairment rating was based solely on “chronic pain.” Therefore, the statutory provision cited by the respondents is inapplicable to these facts. See Murphy v. Legend’s Casino, W.C. No. 4-297-222 (May 24, 2001) Herrera v. Sturgeon Electric Co., W.C. No. 4-320-602 (January 8, 1999) (anatomic correlation requirement not applicable where claimant is rated for a specific disorder of lumbar spine under AMA Guides).
In any event, we have also held that range of motion impairment and muscle spasms associated with an injury constitute evidence of physiologic correlation sufficient to uphold a rating involving “chronic pain.” Herrera v. Sturgeon Electric Co., supra; Welker v. Bogue Construction Inc., W.C. No. 4-309-642 (March 5, 1998). Here, both range of motion impairment and muscle spasms have been found to be present; thus, there is evidence of anatomic or physiologic correlation for the pain complaints. The ALJ was not obligated to credit Dr. Reichhardt’s opinion that there is no objective evidence of injury, and did not do so.
Silva v. Express Temporary Service, W.C. No. 4-303-227 (April 28, 1998), cited by the respondents, does not require a different result. In that case the ALJ credited the treating physician’s opinion that the claimant’s pain was not the result of a diagnosis based condition, but instead resulted from “non-work-related psychological factors.” Because the ALJ’s findings were supported by substantial evidence, we upheld the conclusion that the DIME physician’s rating was overcome. Here, the ALJ entered entirely different findings of fact. Therefore, Silva is factually and legally distinguishable from this case.
II.
In W.C. No. 4-554-366, the claimant alleged that he sustained an upper extremity occupational disease, probably carpal tunnel syndrome (CTS), caused by driving the truck for Morgan County. However, relying principally on the testimony of Dr. Reichhardt, the ALJ found the claimant failed to prove by a preponderance of the evidence the requisite causal relationship between the employment and the alleged occupational disease. Specifically, the ALJ cited Dr. Reichhardt’s opinion that there “is no evidence within a reasonable degree of medical probability indicating claimant’s upper extremity problems or possible CTS symptoms are the result of his work activities at Morgan County.”
On review, the claimant contends the ALJ’s finding concerning causation is not supported by substantial evidence in the record. The claimant argues that his testimony and positive EMG studies demonstrate the existence of CTS. The claimant further asserts the ALJ misconstrued the evidence and improperly required him to prove causation by medical evidence. We disagree with these arguments.
The claimant correctly states that he has the burden of proof to establish that the condition of the employment were a direct and proximate cause of the alleged occupational disease. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). If the claimant succeeds in establishing the requisite causal relationship to the employment, the burden then shifts to the respondents to establish non-occupational contributors to the disease. Cowin Co. v. Medina, 860 P.2d 535 (Colo.App. 1992).
The question of whether the claimant has met the initial burden to prove causation is one of fact for the ALJ. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). Although causation need not be proven by expert medical evidence, where such evidence is presented it is for the ALJ to determine its weight and credibility. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Further, the ALJ need not make findings concerning every piece of evidence provided there are findings demonstrating the evidence found dispositive by the ALJ. Evidence not mentioned is considered to have been rejected. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000).
The claimant’s assertion notwithstanding, we do not understand the ALJ to have required proof of causation by medical evidence. Rather, the ALJ recognized that the claimant had the burden of proof by a preponderance, and found that the claimant failed to meet the burden of proof because the ALJ credited Dr. Reichhardt’s testimony based on “reasonable medical probability.”
The claimant’s testimony and the positive EMG studies do not require a different result. The ALJ was persuaded by Dr. Reichhardt’s testimony that although the EMG studies were positive, they were positive for both medial and ulnar nerve problems. According to Dr. Reichhardt this raised the possibility of a false positive based on the temperature of the claimant’s arm at the time of testing. Because of this discrepancy Dr. Reichhardt could not rely on the EMG studies as a basis for diagnosing CTS or any other condition. Further, because he could not diagnose CTS, it does not matter that he opined that if CTS exists it probably was caused by the claimant’s employment. To the extent the ALJ did not specifically discuss Dr. Reichhardt’s opinions regarding cumulative trauma disorder we infer the ALJ did not find them persuasive. This is particularly true because Dr. Reichhardt testified that he could not diagnose cumulative trauma disorder. (Tr. Pp. 69-70, 72-73). The claimant’s assertions notwithstanding, Dr. Reichhardt’s apportionment of the claimant’s symptoms was purely hypothetical and based on the assumption, with which Dr. Reichhardt disagreed, that the claimant has proven an occupational disease. (Tr. P. 76).
The claimant also relies on his own testimony concerning his upper extremity symptoms to establish causation. However the ALJ found the claimant’s testimony was not credible on this subject. We may not interfere with that finding.
Insofar as the claimant contends the ALJ misstated his testimony in Finding of Fact 12, we disagree. We do not understand the ALJ to have found the claimant held the steering wheel for only one hour per day. Rather, we understand the ALJ to have relied on the claimant’s cross-examination testimony that he held the steering wheel for one hour at a time before a break intervened. Indeed, the ALJ explicitly discusses the fact that the claimant got in and out of the truck 12 to 14 times per day. (Tr. Pp. 33-34).
Insofar as the claimant makes other arguments, we find them to be without merit. The basis of the denial of the claim is clear from the order and supported by substantial evidence.
IT IS THEREFORE ORDERED that ALJ Harr’s order dated May 21, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
__________________ David Cain
__________________ Kathy E. Dean
William Holmes, Fort Morgan, CO, Morgan County, Fort Morgan, CO, County Workers’ Compensation Pool, c/o Jim Vail, County Technical Services, Inc., Denver, CO, William F. Garcia, Esq., Greeley, CO, (For Claimant).
Gregory K. Chambers, Esq. and C. Sandra Pyun, Esq., Denver, CO, (For Respondents).