W.C. No. 4-595-741.Industrial Claim Appeals Office.
October 8, 2008.
FINAL ORDER
The claimant seeks review of a corrected order of Administrative Law Judge Friend (ALJ) dated June 11, 2008, that determined that the respondents had overcome the Division-sponsored independent medical examination (DIME) on the issue of maximum medical improvement and that denied the claimant’s claim for penalties against the respondents. We affirm.
A hearing was held on the issues of maximum medical improvement, the claimant’s entitlement to temporary total disability benefits, and whether penalties should be imposed on the respondents for their failure to pay temporary total disability benefits following the issuance of the DIME report. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. Initially, we note that the record reflects that the claimant was injured in a compensable accident on October 22, 2003, when he fell from a ladder. The ALJ found that the respondents filed a final admission of liability on March 15, 2005, to which the claimant objected and sought a DIME. In his report dated June 29, 2005, the DIME physician, Dr. Zuehlsdorff, stated that the claimant was not at maximum medical improvement. Dr. Zuehlsdorff recommended further diagnostic testing that included evaluation of the claimant’s left shoulder and lower extremities. The recommendations also included diagnostic testing to determine whether the claimant had an internal derangement of the left shoulder, and what treatment would be appropriate. The respondents filed an application for hearing on the issue of overcoming the DIME report that the claimant was not at maximum medical improvement. Dr. Zuehlsdorff issued subsequent reports dated October 18, 2005, and November 6, 2007, in both of which he continued to state that the
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claimant was not at maximum medical improvement and in which he recommended “further workup.” When the claimant was examined by Dr. Zuehlsdorff in November 2007, he complained for the first time of erectile dysfunction (ED). Dr. Zuehlsdorff recommended a trial of medication and “consideration that CRPS [complex regional pain syndrome], since it is an autonomic nervous system pathology, may well have, in fact, affected his sexual function. . . .”
In connection with their effort to overcome the DIME report the respondents took the deposition of Dr. Zuehlsdorff. At that deposition he stated that the claimant was at maximum medical improvement and had been for some time. He further opined that the claimant likely did not have RSD or CRPS in his back or lower extremities and that therefore he more likely than not was at maximum medical improvement. The doctor testified that the claimant should have a “full metabolic workup outside of the Workers’ Compensation system” in order to determine the cause of his ED. He also stated, however, that he did not believe that the ED “in and of itself, should be enough to warrant non-allocation of MMI by itself. . . .” The ALJ also credited the opinions of Dr. Pitzer, Dr. McCranie, and Dr. Ring, who all stated that, although the ED could be the consequence of CRPS in the back and lower extremities, the claimant did not suffer from these latter conditions.
Based upon his factual findings, the ALJ concluded that the respondents carried their burden of proving by clear and convincing evidence that the claimant had reached maximum medical improvement. In this regard, the ALJ credited the medical opinions that the claimant did not suffer from sympathetically mediated pain (or CRPS) in his back and lower extremities. The ALJ also rejected the claimant’s argument that he cannot be determined to be at maximum medical improvement until the recommended diagnostic testing in connection with the ED is completed. However, the ALJ concluded that merely because the recommended metabolic workup had not been completed did not prevent the claimant from being at and remaining at maximum medical improvement. The ALJ also denied penalties under § 8-43-304, C.R.S. 2008 for the respondents’ failure to begin paying temporary total disability benefits upon receipt of the DIME report that the claimant was not at maximum medical improvement.
I.
The claimant appealed the ALJ’s order and first argues that the determination of the cause of his ED is a prerequisite to a finding of maximum medical improvement, and that that status cannot as a matter of law be reached until the diagnostic testing is completed and a determination made regarding the cause of the ED. We are unpersuaded by the claimant’s arguments in this respect.
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Pursuant to § 8-42-107(8)(b)(I), C.R.S. 2008, an authorized treating physician shall make the initial determination concerning the date of maximum medical improvement. Once an authorized treating physician makes a determination of maximum medical improvement, the termination of medical care is triggered and the ALJ lacks jurisdiction to conduct a hearing concerning the accuracy of the authorized treating physician’s determination until a DIME is conducted. Section 8-42-107(8)(b)(III), C.R.S. 2008; Story v. Industrial Claim Appeals Office, 910 P.2d 80
(Colo.App. 1995). The Colorado Supreme Court has noted that the DIME procedure is “the only way for an injured worker to challenge the treating physician’s findings — including MMI, the availability of post-MMI treatment, degree of non-scheduled impairments, and whether the impairment was caused by an on-the-job injury. . . .” Whiteside v. Smith, 67 P.3d 1240, 1246 (Colo. 2003).
We note also the principle that a treating physician’s finding of maximum medical improvement necessarily reflects the physician’s determination that no further treatment is reasonably expected to improve any of the compensable components of the injury, and the authorized treating physician’s opinion on the cause of the claimant’s condition is inherent to the physician’s determination of maximum medical improvement. See Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998). We have previously stated that “[determining MMI necessarily requires a physician to ascertain the cause or causes of the claimant’s condition in order to decide whether the claimant warrants additional treatment for any work-related problem. Consequently, the issues of whether all work-related conditions are stable and do not require additional treatment are an inherent part of the DIME process. . . .” Ayala v. Conagra Beef Company, W.C. No. 4-579-880 (July 22, 2004).
Section 8-42-107(8)(c), C.R.S. 2008, provides that the DIME physician’s finding of maximum medical improvement and medical impairment is binding unless overcome by clear and convincing evidence. “Clear and convincing evidence” is defined as evidence which is stronger than a preponderance, is unmistakable and is free from serious or substantial doubt. DiLeo v. Koltnow, 200 Colo. 119, 613 P. 2d 318
(1980). In other words, in order to overcome the DIME report, there must be evidence which proves that it is highly probable that the DIME physician’s opinions are incorrect. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The question whether the party challenging the DIME physician’s determinations has overcome the report by clear and convincing evidence is generally one of fact for determination by the ALJ. McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo.App. 1999). Consequently, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008. The
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substantial evidence test requires us to view the evidence in a light most favorable to the prevailing party, and to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the record. Metro Moving and Storage Co. v. Gussert, supra. Resolving conflicting inferences, which could be drawn from the DIME physician’s rating, is solely in the ALJ’s discretion. Id. This standard of review is deferential and the scope of our review in this regard is “exceedingly narrow.” Id. at 414. Under this standard of review, it is also the ALJ’s sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. We may not substitute our judgment for that of the ALJ regarding credibility matters unless there is such hard, certain evidence contradicting the ALJ’s determination that it would be error as a matter of law. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
We are unpersuaded by the claimant’s argument that he cannot as a matter of law be at maximum medical improvement until the diagnostic tests are performed to rule out the possible non-compensable causes of his ED. As we understand the ALJ’s order, he credited Dr. Zuehlsdorff s testimony, modifying his earlier opinion that the claimant was not at maximum medical improvement. Dr. Zuehlsdorff s opinions, stated in his reports and in his testimony, varied to some extent and certainly were susceptible to different, and even conflicting, inferences. However, in our view, the factual record developed in this case supports the ALJ’s determination that the respondents overcame the DIME opinion on maximum medical improvement by clear and convincing evidence.
In this regard, Dr. Zuehlsdorff testified that he did not think that “ED . . . in and of itself, should be enough to warrant nonallocation of MMI by itself.” Deposition of Gary Zuehlsdorff, D.O. at 43 (March 12, 2008) (hereinafter “Zuehlsdorff Depo.”) He characterized the ED as a “sidebar” in the case, and opined that “99 percent of this case is based on the CRPS symptoms in his upper extremities and questionably in the lower.” Zuehlsdorff Depo. at 42. Further, the doctor recommended Viagra to treat the condition and stated that the claimant should have a workup “outside of the Workers’ Compensation system. . . .” Zuehlsdorff Depo. at 8, 9. When the respondents’ attorney inquired why the workup should be performed “outside” of the workers’ compensation proceeding, the doctor responded that, “Because that would not have been caused by the Workers’ Compensation injury.” Zuehlsdorff Depo. at 9. He then noted that the claimant’s CRPS would be “a very rare cause of ED” that he would consider after having ruled out the other more common causes. Zuehlsdorff Depo. at 9. When the respondents’ attorney asked the doctor for clarification concerning whether he was recommending the workup as a diagnostic measure in the compensable claim, Dr. Zuehlsdorff stated that he was not: “No. He should go through his regular primary care physician for that.” Zuehlsdorff Depo. at 9. Moreover, we note that Dr. Zuehlsdorff
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stated that he concurred with Dr. Ring’s opinion that further diagnostic testing was not warranted regarding whether the claimant’s condition had “migrated” to his low back and legs. In this regard Dr. Zuehlsdorff stated that it was not the case that the condition had migrated to the claimant’s lower extremities.
This factual record did not compel the ALJ to conclude that the claimant had not reached maximum medical improvement as a matter of law. As we read the ALJ’s order, he interpreted the DIME physician as stating that maximum medical improvement had been reached for the compensable components of the claimant’s condition, but that there remained the “very rare” possibility that the ED was caused by the CRPS. The ALJ could reasonably infer from the record that Dr. Zuehlsdorff was originally concerned that the ED was caused by the claimant’s CRPS having insinuated itself to the claimant’s low back and lower extremities. However, the doctor also ultimately expressed his agreement with other medical experts that such was not the case. The ALJ could thus also infer that Dr. Zuehlsdorff viewed any causal relationship between the ED and the claimant’s wrist injury as extremely unlikely. Indeed, the doctor testified specifically that he did not believe the ED should be explored within the context of the workers’ compensation claim and that it should be treated, if at all, through his “regular primary care physician.”
In our view, given this factual record, the ALJ was not compelled to conclude that the “very rare” possibility that the ED was caused by the CRPS precluded a determination of maximum medical improvement. We note that the ALJ did not consider this a case in which the DIME physician has recommended further diagnostic testing in order to identify a compensable component of the injury and then formulate a treatment plan. Rather, the ALJ expressly noted that Dr. Zuehlsdorff only considered the “possibility” that the claimant’s ED was related to the CRPS and, even then, to the claimant’s condition as it affected his low back and legs. Since the ALJ apparently read Dr. Zuehldorff s testimony as deciding that the condition had not “migrated” to those areas, we perceive no error in the ALJ’s conclusion that the claimant was at maximum medical improvement for the compensable components of the injury.
II.
The claimant also argues that the ALJ erred in refusing to impose statutory penalties on the respondents under § 8-43-304. Specifically, the claimant argues that the respondents had a duty to begin paying temporary total disability benefits when they received the DIME report stating that the claimant was not at maximum medical improvement. The claimant argues that the DIME report is a “quasi-judicial” determination in the nature of a judgment, and that it requires compliance on the part of the respondents. We are unpersuaded by this argument.
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Section 8-43-304(1), C.R.S. 2008, allows an ALJ to impose penalties up to $500 per day against any employer or insurer who commits one of four types of violations. A person may be penalized “who violates any provision of articles 40 to 47 of [title 8], or does any act prohibited thereby, or fails or refuses to perform any duty lawfully enjoined within the time prescribed by the director or panel, for which no penalty has been specifically provided, or fails, neglects, or refuses to obey any lawful order made by the director or panel or any judgment or decree made by any court. . . .” Moreover, a failure to comply with the Workers’ Compensation Rules of Procedure is a failure to perform a “duty lawfully enjoined” within the meaning of § 8-43-304(1). See Diversified Veterans Corporate Center v. Hewuse, 942 P.2d 1312
(Colo.App. 1997); Pueblo School District No. 70 v. Toth, 924 P.2d 1094
(Colo.App. 1996). The imposition of penalties under § 8-43-304(1) is therefore a two step process. The ALJ must first determine whether the disputed conduct constituted a violation of the Act, of a duty lawfully enjoined, or of an order. If the ALJ finds such a violation, the ALJ may impose penalties if he also finds that the employer’s actions were objectively unreasonable. City Market, Inc. v. Industrial Claim Appeals Office, 68 P.3d 601 (Colo.App. 2003). The amount of the penalty is discretionary up to a maximum of $500 per day for each offense.
Here, we agree with the ALJ that the claimant did not prove that the respondents violated an order, a rule of procedure, or the Act in refusing to commence payment of temporary total disability benefits on receipt of the DIME report. The respondents’ duties upon receipt of the DIME report are set forth in the Act. Thus, they are required to “either file its admission of liability pursuant to section 8-43-203 or request a hearing before the division contesting one or more of the IME’s findings or determinations contained in such report.” It is undisputed that the respondents complied with this duty, and the claimant’s argument that the DIME report required them to admit for temporary total disability benefits is without merit.
IT IS THEREFORE ORDERED that the ALJ’s corrected order dated June 11, 2008, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
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STEVEN MARTINEZ, HENDERSON, CO, (Claimant).
TRIANGLE SHEET METAL INC., Attn: HELEN J KULES, ARVADA, CO, 80002 (Employer).
CALIFORNIA INDEMNITY INSURANCE, Attn: MS DEANNA CUERDEN FISHER, C/O: GAB ROBBINS, DENVER, CO, (Insurer).
WILLIAM J MACDONALD, PC, Attn: WILLIAM J. MACDONALD, ESQ., DENVER, CO, (For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: BENJAMIN P KRAMER, ESQ., GREENWOOD VILLAGE, CO, 80111 (For Respondents).
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