W.C. No. 4-328-106Industrial Claim Appeals Office.
March 20, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Gandy (ALJ) which determined the claimant is entitled to temporary total disability benefits commencing June 10, 1998. The respondents contend they overcame, by clear and convincing evidence, the opinion of the Division-sponsored independent medical examination (IME) physician concerning maximum medical improvement (MMI). The respondents further contend the evidence does not establish that the claimant was disabled. We affirm.
The claimant sustained a compensable back injury on January 14, 1997, and in February 1997 she underwent disc surgery at L4-5 and L5-S1. The claimant developed depression, and the surgeon referred the claimant to Dr. Wunder for treatment. On December 16, 1997, Dr. Wunder placed the claimant at MMI and opined she had a 17 percent whole person impairment attributable to the back injury. Dr. Wunder also stated the claimant “presented with no psychological distress” and had “no additional impairment for chronic long-turn psychological dysfunction.” However, Dr. Wunder prescribed the continuing use of Serzone, a drug which the ALJ found “is prescribed only and exclusively for depression.”
On June 10, 1998, the claimant underwent a Division-sponsored IME conducted by Dr. Fink. Dr. Fink observed the claimant was suffering from “worsening depression with positive vegetative symptoms of depression and suicidal ideation.” Dr. Fink opined the claimant was not at MMI and needed psychiatric treatment, management of her medications, and referral to a pain clinic.
The claimant also sought an award of permanent total disability benefits. This issue was heard before ALJ Gandy, who noted the “parties agreed to reserve all issues” not ruled upon in the order. In the order dated June 11, 1998, the ALJ credited Dr. Wunder’s report of December 16, 1997, and denied the claim for permanent total disability benefits. We affirmed the ALJ’s order in December 1998 and the Court of Appeals affirmed our order on July 29, 1999.
On February 25, 1999, the ALJ issued the order currently under review. Although the ALJ found there was conflicting expert medical opinion, he credited Dr. Fink’s opinion that the claimant was not at MMI. Consequently, the ALJ concluded that the respondents failed to overcome the IME physician’s determination that the claimant was not at MMI. The ALJ awarded temporary total disability benefits commencing June 10, 1998, the date on which he stated the claimant was “no longer” at MMI.
I.
On review, the respondents first contend that the “overwhelming evidence” establishes the claimant was at MMI despite the determination of the IME physician. The respondents rely on alleged deficiencies in Dr. Fink’s opinion, as well as expert medical opinion favorable to their position. We find no reversible error.
Pursuant to § 8-42-107(8)(b)(III), C.R.S. 1999, the Division-sponsored IME physician’s opinion that the claimant is not at MMI is binding unless overcome by clear and convincing evidence. The determination of whether a party has overcome the IME physician’s opinion is one of fact which is made by the ALJ Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995).
Because the issue is factual, we must uphold the ALJ’s determination if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 1999; Postlewait v. Midwest Barricade, supra. In applying the substantial evidence test we must 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, 914 P.2d 411
(Colo.App. 1995). Thus, it is the ALJ’s province to assess the weight and credibility of expert medical opinion. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). To the extent a medical opinion is predicated on an incomplete or inaccurate history, it is for the ALJ to assess the weight of the opinion in light of those circumstances. See Industrial Commission v. Albo, 167 Colo. 467, 447 P.2d 1006 (1968).
The respondents assert that Dr. Fink’s IME opinion should not have been credited by the ALJ because the claimant gave an inaccurate history concerning the amount of money she was receiving from workers’ compensation benefits, and because Dr. Fink failed to consider the claimant’s marital problems in assessing the cause of the claimant’s depression. To the extent the claimant gave an inaccurate history concerning her benefits, it was for the ALJ to assess the significance of that inaccuracy. We cannot say the ALJ was compelled to discredit Dr. Fink’s entire opinion based on this alleged inaccuracy. Industrial Commission v. Albo, supra. Further, we disagree that Dr. Fink failed to consider the claimant’s marital problems. Dr. Fink expressly stated that he reviewed Dr. Pock’s March 9, 1998 report, which details the claimant’s domestic problems. Finally, the fact that the claimant’s “worsening” depression occurred contemporaneous with her claim for permanent total disability benefits raised an issue of credibility which the ALJ was free to resolve.
Neither are we persuaded by the respondents’ arguments concerning the relative weight of the medical opinions. Dr. Fink’s IME opinion was corroborated by Dr. Pock’s report of May 27, 1998, in which Dr. Pock stated the claimant was in “(almost desperate) need of psychiatric treatment including additional (or different) medication for depression.” Although Dr. Pock had previously opined the claimant was at MMI, the May 27 report explains that the prior opinion was based on an incomplete “depression inventory.” Consequently, substantial, albeit conflicting, evidence supports the ALJ’s finding that the respondents failed to overcome the IME physician’s opinion concerning MMI. The mere fact that the ALJ might have assessed the evidence differently affords no basis for relief on appeal.
II.
The respondents next point out that the ALJ’s order of June 11, 1998 (denying permanent total disability benefits) credited Dr. Wunder’s opinion that the claimant was at MMI in December 1997 and did not have any psychological impairment as a result of the industrial injury. Relying on Cooper v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA1343, October 28, 1998), the respondents assert the ALJ was estopped from finding, in the order of February 25, 1999, that the claimant was suffering from depression caused by the injury and entitled to additional temporary total disability benefits. We disagree.
This case is in a peculiar procedural posture because the issue of permanent total disability was adjudicated prior to resolving the issue of MMI. However, it is apparent from the ALJ’s order of June 11, 1998, that the parties specifically contemplated this arrangement and “agreed to reserve all issues not ruled upon” by the ALJ. Under these circumstances, it appears that the parties recognized that the claimant was to retain the right to seek a Division-sponsored IME on the issue of MMI in the event she did not prevail on the issue of permanent total disability. Consequently, we cannot say the ALJ’s order of June 11, 1998, constituted a “final judgment” for purposes of applying the doctrine of collateral estoppel. See M M Management Co. v. Industrial Claim Appeals Office, 979 P.2d 574 (Colo.App. 1998). To the contrary, it appears the June 11 order recognized the possibility of further litigation concerning the existence of depression, and resulting disability.
III.
The respondents next contend the ALJ erred in awarding temporary total disability benefits commencing June 10, 1998, because there is no evidence that the “worsening” of the claimant’s depression caused additional restrictions beyond those which existed when Dr. Wunder placed the claimant at MMI on December 16, 1997. The respondents cite City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997), in support of their position. We reject this argument.
In our view, the respondents draw an incorrect analogy between the facts in City of Colorado Springs and the facts in this case. Unlike the circumstances in City of Colorado Springs,
the claimant in this case never reached MMI. The ALJ’s February 25 order did not “reopen” the claim based on a worsening of condition. Rather, the effect of the ALJ’s order was to uphold the opinion of the Division-sponsored IME physician that the claimant had not reached MMI for the industrial injury.
We considered an analogous situation in Dowd v. V.F.W. Post 1247, W.C. No. 3-106-845 (May 14, 1998). In that case, the treating physician placed the claimant at MMI for a cervical spine injury on August 3, 1995, but the claimant was not placed at MMI for an injury-related carpal tunnel syndrome (CTS). However, the ALJ found the claimant was not entitled to continuing temporary total disability benefits after August 3 because all of the claimant’s restrictions were cause by the cervical spine injury, and no additional restrictions were attributed to the CTS. However, we held that “the status of MMI is not divisible and cannot be parceled out among various components of a multi-faceted industrial injury.” We observed that MMI terminates temporary disability benefits and triggers the claimant’s entitlement to permanent partial disability benefits. We concluded that because a single industrial injury may result in multiple impairments, “the claimant’s permanent disability cannot be ascertained until the claimant has reached MMI for all compensable components of the injury.” The Dowd decision distinguished the City of Colorado Springs v. Industrial Claim Appeals Office (Ballinger) case as follows:
It is significant that the Ballinger court characterized the claimant’s shoulder injury as a “second” or “separate” injury rather than a worsening of the original injury. [Citation omitted] We agree with the court that, if the claimant’s shoulder injury is treated as a second or separate industrial injury, it is reasonable to require the claimant to prove a disability from the second injury to recover temporary disability benefits in connection with the second injury. However, in view of the facts in Ballinger, we do not read it as standing for the proposition that MMI may, in the first instance, be divided among various aspects of the industrial injury. Sandoval v. Denver Housing Authority, W.C. No. 4-268-820 (December 4, 1997).
Applying these principles here, we find no error in the ALJ’s order. The effect of the ALJ’s February 25 order was to determine the claimant was never at MMI. Therefore, it is immaterial whether the claimant’s psychological condition added additional restrictions beyond those which existed on December 16, 1997. Because the claimant never reached MMI for all of the injury-related conditions, and because the claimant was disabled from performing her regular duties, the claimant is entitled to temporary total disability benefits until she reaches MMI, or benefits are terminated under some other provision of law. See PDM Molding Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995).
In reaching this result, we recognize the ALJ referred to the claimant’s “worsening” psychological condition, and awarded temporary total disability benefits commencing June 10, 1998, rather than December 17, 1997. However, this case was not tried on the issue of a “worsened condition” after MMI. Therefore, although the ALJ may have misapprehended the significance of his order, the claimant has not appealed the ALJ’s failure to award temporary disability benefits between December 1997 and June 1998. Therefore, we need not consider the issue.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 25, 1999, 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. 1999. 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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed March 20, 2000 to the following parties:
Isabel Mora, P.O. Box 396, Milliken, CO 80543
New Tenneco, Inc., d/b/a/ Tenneco Packaging, 1201 Cornerstone Drive, Windsor, CO 80550
Pacific Employers Insurance Company, ESIS, Gayle Trottnow, P.O. Box 2941, Greenwood Village, CO 80150-0141
Miguel Martinez, Esq., 1102 Fifth St., Ste. A, Greeley, CO 80631 (For Claimant)
J. Anthony Ogden, Esq., 625 East 16th Ave., Ste. 100, Denver, CO 80203 (For Respondents)
BY: A. Pendroy