W.C. No. 4-725-760.Industrial Claim Appeals Office.
May 21, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) dated December 29, 2008 that determined the Division-sponsored independent medical examination (DIME) physician’s opinion had been overcome by clear and convincing evidence. We affirm.
There have been two relevant hearings on this case. The matter originally was heard before ALJ Felter on January 8, 2008, concerning whether the claimant suffered a compensable injury. The ALJ in an order dated January 22, 2008 made the following findings and reached the following conclusions. The claimant as a geologist was required to obtain water samples out of a well. On March 16, 2007, the claimant felt a pop and sensation of pain in his left shoulder while pulling up water samples from a well. Dr. Orgel was an authorized treating physician. On April 19, 2007, Dr. Orgel expressed the opinion that the claimant’s work activities were inconsistent with the humeral head problems and that the rotator cuff abnormalities were connected to the cause of the humeral head findings. Dr. Orgel discharged the claimant from care on April 19, 2007 as he believed that the claimant’s shoulder problems were not work-related. The ALJ credited the opinion of Dr. Orgel that the claimant’s extensive complex underlying left shoulder condition was not work-related. The ALJ found that the claimant failed to prove that the extensive humeral head abnormalities and other rotator cuff abnormalities were work-related. However, the ALJ was not persuaded by Dr. Orgel’s opinion that none of the claimant’s left shoulder conditions were work-related. Instead the ALJ credited the opinion of Dr. Rupp that the work injury caused the claimant’s immediate left shoulder problems. The ALJ determined that the claimant had proven by a
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preponderance of the evidence that the temporary aggravation of his complex underlying conditions in his left shoulder necessitated medical care and treatment through April 19, 2007. However, the ALJ also determined that the claimant had failed to prove, by a preponderance of the evidence that his left shoulder problems after April 19, 2007 were proximately caused by the injury of March 16, 2007, as opposed to the underlying complex left shoulder conditions. The ALJ ordered the respondents to pay the costs of medical treatment for the temporary aggravation of the claimant’s underlying complex conditions of his left shoulder rendered through April 19, 2007. There was no appeal of the January 22, 2008 order.
The claimant then sought and obtained a DIME. The DIME physician concluded that the claimant was not at MMI and that the claimant needed to be treated for his ongoing shoulder complaints and other rotator cuff abnormalities. A hearing was then held on the issue of whether the respondents could overcome the opinion of the DIME physician by clear and convincing evidence. ALJ Felter also presided at the second hearing. The ALJ made the following findings in an order dated December 29, 2008 that is the subject of the present appeal. The opinion of the DIME physician that the claimant had not reached MMI had been overcome by clear and convincing evidence. The March 16, 2007 injury aggravated and combined with the claimant’s pre-existing left shoulder condition to temporarily aggravate the condition until April 19, 2007. Thereafter, the claimant was back to his non-work related baseline condition. The ALJ concluded that the DIME physician’s opinion implicitly overturned his January 22, 2008 order as to causality. The ALJ concluded that the claimant reached MMI on April 19, 2007 and therefore denied the claimant’s request for ongoing medical benefits. The claimant brings this appeal.
The DIME physician’s findings as to MMI are binding unless overcome at hearing by clear and convincing evidence. § 8-42-107(8)(b)(III), (c), C.R.S. 2008; Montoya v. Industrial Claim Appeals Office 203 P.3d 620
(Colo.App. 2008). Determination of MMI requires the DIME physician to assess, as a matter of diagnosis, whether the various components of the claimant’s medical condition are causally related to the industrial injury. Martinez v. Industrial Claim Appeals Office 176 P.3d 826 (Colo.App. 2007). This scheme promotes prompt delivery of benefits, simplifies the workers’ compensation process, and reduces the need for litigation Williams v. Kunau 147 P.3d 33 (Colo., 2006); Dyrkopp v. Indus. Claim Appeals Office, 30 P.3d 821, 822 (Colo.App. 2001).
“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
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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. 2008. 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.”Metro Moving Storage Co. v. Gussert, supra.
Here the ALJ found that it was highly probable, and free from serious and substantial doubt that the DIME physician’s opinion on causality was clearly erroneous. In this regard, the ALJ credited the testimony of Dr. Orgel. Dr. Orgel opined that the DIME physician’s assertion that the fracture of the humeral head, having not been diagnosed was incorrect. Exhibit F at 5. Dr. Orgel opined that the fracture of the humeral head was pre-existing. Tr. 11-12. The ALJ credited Dr. Orgel’s opinion that the pain arising from working with a fractured humeral head was similar to experiencing pain after “hobbling in to work” on a fractured ankle. Thus, he stated that the activity following a fracture will cause pain to arise, but does not render the initial fracture a work related injury. Tr. at 12. The ALJ found the DIME physician had relied on the claimant’s “self-reported history of trauma to form his opinion.” Finding of Fact § 6 at 3; Exhibit F at 20. The DIME physician had relied on the claimant’s history as the basis for his disagreement with the authorized providers. Exhibit F at 21. The ALJ noted that he had found at the time of the first hearing that this history of trauma was not fully credible. Finding of Fact at 3, § 6. In our opinion, this evidence constitutes substantial evidence in support of the ALJ’s determination that the respondents had overcome the DIME physician’s opinion that the claimant had not reached MMI by clear and convincing evidence. Therefore, the ALJ decision must be affirmed.
In addition the ALJ found that the “DIME report also created a conflict with the January 22, 2008 Order regarding causal relatedness and, as found hereinabove, it was clearly erroneous.” The ALJ applied the doctrine of issue preclusion. The claimant contends that the ALJ improperly applied the doctrine of issue preclusion in support of his determination that the respondents overcame the opinion of the DIME physician.
Issue preclusion bars relitigation of an issue if: (1) the issue precluded is identical to an issue actually determined in the prior proceeding; (2) the party against whom
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estoppel is asserted has been a party to or is in privity with a party to the prior proceedings; (3) there is a final judgment on the merits in the prior proceedings; and (4) the party against whom the doctrine is asserted has a full and fair opportunity to litigate the issue in the prior proceeding. Sunny Acres Villa, Inc. v. Cooper 25 P.3d 44 (Colo. 2001). The claimant concedes that here the second and third elements are present.
However, the claimant contends that the issue at the second hearing was not identical to the issue decided in the first hearing. The claimant argues that the first hearing involved the threshold finding of compensability while the second hearing involved the respondents’ burden to overcome the presumptive weight of the DIME physician’s opinion. Therefore, the claimant contends the ALJ erred in applying issue preclusion. We disagree.
Here the disputed issue at the first hearing was whether the claimant had proved that his left shoulder problems after April 19, 2007 were proximately caused by his March 16, 2007 injury as opposed to the underlying complex left shoulder conditions. In his January 22, 2008 order the ALJ determined that the claimant had failed to prove the compensability of the complex underlying conditions, consisting primarily of extensive humeral head abnormalities. The ALJ further determined in his first order that the claimant failed to prove that the March 16th injury caused any of the claimant’s shoulder problems after April 19th. Therefore the ALJ denied the claimant’s request for ongoing medical benefits after April 19, 2007. In his December 29, 2008 order the ALJ determined that the opinion of the DIME physician that the claimant had not reached MMI on April 19, 2007 had been overcome by clear and convincing evidence. Therefore, the ALJ denied the claimant’s request for ongoing medical benefits after April 19, 2007. In our opinion, the issue of the claimant’s entitlement to ongoing medical benefits after April 19, 2007 was present in both cases.
The claimant next argues that the fourth element of issue preclusion which requires that party against whom the doctrine is asserted has a full and fair opportunity to litigate the issue in the prior proceeding was missing. Here the ALJ specifically found that the claimant had in the first hearing a fair and full opportunity to litigate the causal relatedness of the humeral fracture and the continued impingement symptoms at the first hearing. The ALJ found the claimant did litigate the issue in the first hearing but failed to establish causal relatedness of his left shoulder problems other than a temporary aggravation thereof, which ended on April 19, 2007. The claimant does not appear to argue that he was precluded in any way from litigating the causal relatedness of his shoulder conditions at the first hearing.
However, citing Sunny Acres Villa, Inc. v. Cooper supra, the claimant argues that he did not have the incentive to prosecute as vigorously the issue of compensability and
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medical benefits in the first hearing as he did at the second hearing on the issue of medical benefits. Therefore, the claimant again argues that the ALJ erred in applying issue preclusion. We are not persuaded that the ALJ erred.
The claimant’s incentive appears to us to have been the same at both hearings. At both hearings, the claimant was seeking continuing medical treatment for the humeral head and rotator cuff abnormalities. We conclude that the ALJ did not err in determining that the claimant had a full and fair opportunity to litigate the issue in the first hearing. Therefore, we are not persuaded that the ALJ erred in his application of the doctrine of issue preclusion.
In our view this result is consistent with Grand County v. Industrial Claim Appeals Office, No. 07CA0424 (Colo.App. April 24, 2008) (not selected for publication), in which the Colorado Court of Appeals applied the doctrine of issue preclusion where an ALJ had entered an order denying certain medical benefits. The court applied the doctrine even though the issue of entitlement to the medical benefits was raised the second time in the context of a DIME report, which under the statutory scheme had to be overcome by clear and convincing evidence. Although the court in Grand County ruled that the burdens of proof in both proceedings were the same, it is well-established that the DIME doctor’s report regarding causation must be overcome by clear and convincing evidence. Qual-Med, Inc., v. Industrial Claim Appeals Office, supra. We infer from the court’s opinion in that case that the doctrine of issue preclusion may be applicable even where the second dispute involves overcoming a DIME report as a prerequisite to proving entitlement to medical benefits.
IT IS THEREFORE ORDERED that the ALJ’s order issued December 29, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
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KENT M LOCKHART, BRANSCOMB, CA, (Claimant).
ACE AMERICAN INSURANCE CO, Attn: WES JOHNSON, C/O: ESIS PORTLAND WC CLAIMS, TAMPA, FL, (Insurer).
DAVID LEVY, ESQ., Attn: DAVID LEVY, ESQ., BOULDER, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK, PC, Attn: ERICA A WEBER, ESQ., DENVER, CO, (For Respondents).
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