W.C. No. 4-458-248Industrial Claim Appeals Office.
October 4, 2002
FINAL ORDER
The pro se claimant seeks review of an order of Administrative Law Judge Jones (ALJ) insofar as it denied the claim for medical benefits and additional permanent partial disability benefits. The claimant contends the evidence compelled the ALJ to find the opinions of the Division-sponsored independent medical examination (DIME) physician concerning maximum medical improvement (MMI) and permanent medical impairment were overcome by clear and convincing evidence. We affirm.
The claimant sustained admitted injuries to her neck, shoulders, and back in February 1999. The injuries were the result of an occupational disease caused by the claimant’s use of office equipment, including a keyboard. A treating physician, Dr. Primack, placed the claimant at MMI on March 27, 2000, with no medical impairment.
The claimant underwent a DIME in August 2000 on the issues of MMI and medical impairment. The DIME physician opined the claimant suffered from a preexisting degenerative spine condition which was exacerbated by “the ergonomic situation at her work station.” The DIME physician agreed with Dr. Primack that the claimant reached MMI on March 27 and assessed a 13 percent whole person impairment based on a specific disorder of the lumbar spine and reduced range of motion.
The claimant subsequently sought an additional DIME examination based on additional evidence, some of which developed after the first DIME examination. The evidence included a report of Dr. Knight, dated September 29, 2000 (based on an examination of June 5, 2000), recommending the claimant undergo a discogram of the thoracolumbar junction to determine if the claimant was suffering an annular tear in this region of the spine. The new evidence also included the results of a discogram in March 2001, which did reveal an annular tear at T11-12, and notes the claimant’s pain was reduced after injections at the thoracic spine.
The claimant underwent a second DIME in July 2001, at which the DIME physician reexamined the claimant and reviewed the additional evidence. Nevertheless, the DIME physician did not change his opinion concerning the date of MMI or the degree of impairment. The DIME physician opined the annular tear was not related to the industrial injury because the claimant did not complain of problems at the thoracolumbar area in August 2000, and the prior examination was “unremarkable” in this region of the spine.
The ALJ concluded the claimant failed to overcome the DIME physician’s opinions concerning MMI and the degree of impairment. The ALJ specifically noted that a DIME physician’s opinion concerning whether or not a particular condition is causally related to the industrial injury is binding unless overcome by clear and convincing evidence. Although the ALJ recognized there was some evidence which would connect the claimant’s thoracic spine condition to the industrial injury, the ALJ concluded the evidence was not “clear and convincing.” Therefore, the ALJ denied the claim for additional benefits.
On review, the claimant contends the record does not support the ALJ’s finding that she failed to prove by clear and convincing evidence the DIME physician was incorrect when he determined the thoracic condition was not caused by the industrial injury. The claimant cites her own testimony, medical records indicating she had thoracic pain before she was placed at MMI, and the evidence concerning the discogram and thoracic injections. We find no error.
The issues of MMI and medical impairment inherently require the physician to make a determination concerning the cause(s) of the claimant’s condition. When the determination is made by a DIME physician, the finding must be overcome by clear and convincing evidence. Section 8-42-107(8)(b)(III), C.R.S. 2002; § 8-42-107(8)(c), C.R.S. 2002 Cordova v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA0852, February 28, 2002); Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998).
The question of whether a party has presented clear and convincing evidence is one of fact for determination by the ALJ. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. 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 resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.d 411 (Colo.App. 1995).
Here, the claimant designated only a partial transcript, and much of the claimant’s testimony is not included. Consequently, we must presume the record supports the ALJ’s determination that the claimant’s testimony did not constitute persuasive evidence to overcome the DIME physician’s causation determination. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).
It is true, as the claimant argues, that the medical records contain some evidence from which it might be inferred the annular tear in the thoracic spine is related to the industrial injury. However, we cannot hold as a matter of law that the ALJ was compelled to find this evidence was “clear and convincing evidence.” Clear and convincing evidence means evidence which renders a proposition highly probable and free from serious or substantial doubt. This is the standard applied by the ALJ when evaluating the evidence, and is broader than the substantial evidence test which we must apply on review of the order. Metro Moving and Storage Co. v. Gussert, supra.
In this case, there is medical evidence that the claimant’s thoracic MRI was normal in March 2000, but the lumbar MRI was positive for bilateral facet hypertrophy at L4-5 and L5-S1. Further, when the claimant was examined by the DIME physician in August 2000, she reported that her mid back pain had “magically resolved” with deep tissue massage, and the DIME physician reported “no tenderness over the thoracic cervical spines or shoulders.” After the DIME physician reviewed the claimant’s new evidence and conducted a second examination in 2001, he opined that the claimant’s annular tear was not related to the injury based on the claimant’s history and the results of the August 2000 examination. Under these circumstances, we conclude there is substantial evidence to support the finding the claimant failed to overcome the DIME physician’s opinion on causation by clear and convincing evidence.
We note the claimant’s brief contains numerous factual representations. Such representations cannot be considered as evidence in the case to the extent they are not supported by the partial transcript or the medical records, and we have not done so. Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987).
Insofar as the claimant’s brief may be interpreted as raising other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 14, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
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. 2001. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed October 4, 2002 to the following parties:
Jacqueline J. Pepin, 144 Piccolo Ln., Billings, MT 59101
Virginia Loughner, Risk Management, City of Aurora, 1470 S. Havana St., #302, Aurora, CO 80012-4014
LWP Commercial Claims Admins., 575 Union Blvd., #310, Lakewood, CO 80228
Charles W. Hemphill, Esq., 8441 W. Bowles Ave., #250, Littleton, CO 80123 (For Respondent)
By: _____A. Hurtado_____