W.C. No. 4-480-729.Industrial Claim Appeals Office.
April 22, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Klein (ALJ) which determined the claimant is at maximum medical improvement (MMI). We affirm.
The claimant suffered an admitted chemical burn to the volar aspect of the left arm on June 26, 2000. The respondents filed a Final Admission of Liability, which listed the date of MMI as October 24, 2000, and denied liability for permanent disability benefits. The claimant timely objected and requested a DIME. In approximately January 2001 the claimant developed lesions on the dorsal aspect of the left arm. The DIME physician opined the claimant was not at MMI until the lesions were treated.
Ultimately, a follow-up DIME was conducted by Dr. Healey. Dr. Healey opined the lesions were related to the industrial injury and that the claimant was not at MMI. The respondents applied for a hearing to overcome Dr. Healey’s finding on MMI.
Rejecting the opinions of Dr. Healey and crediting the contrary opinions of Dr. Wunder, Dr. Jacobs, Dr. Huff, Dr. Moe and Dr. Reichhardt, the ALJ found the lesions were unrelated to the industrial injury. Therefore, the ALJ determined the respondents overcame the DIME physician’s finding on MMI.
The claimant’s petition to review contains general allegations of error listed in § 8-43-301(8), C.R.S. 2004. The claimant also contends the ALJ’s finding of MM is not supported by the record and is a mistake of law. However, the claimant has not filed a brief in support of the petition to review. Consequently, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
Under § 8-42-101(1), C.R.S. 2004 the respondent is required to provide medical benefits to cure or relieve the effects of the industrial injury, until the claimant attains (MMI), which is the point in time when the claimant’s compensable condition is “stable and no further treatment is reasonably expected to improve the condition.” Section 8-40-201(11.5), C.R.S. 2004. The DIME physician’s determination of MMI is binding unless overcome by “clear and convincing evidence” to the contrary. Section 8-42-107(8)(b)(III), C.R.S. 2004; Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002) ; Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). “Clear and convincing evidence” is evidence which establishes that it is “highly probable” the DIME physician’s MMI determination is incorrect. Metro Moving Storage Co. v. Gussert, supra.
Whether the respondents presented clear and convincing evidence to overcome the DIME physician’s opinion was a question of fact for the ALJ. Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995); Metro Moving Storage Co. v. Gussert, supra. Accordingly, we must uphold the ALJ’s determination if supported by substantial evidence and the ALJ’s plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2004; Postlewait v. Midwest Barricade, supra.
Further, § 8-43-301(8) precludes us from disturbing the ALJ’s order unless the ALJ’s findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ’s findings, the findings do not support the order, or the order is not supported by the applicable law.
We have reviewed the record and the ALJ’s findings of fact. The ALJ’s findings are sufficient to permit appellate review, and the findings clearly indicate that the ALJ resolved conflicts in the medical evidence based upon his credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992). Further, the ALJ’s findings are amply supported by the medical reports and deposition testimony of Dr. Jacobs, Dr. Huff, Dr. Wunder, Dr. Reichhardt and Dr. Moe.
We also conclude the ALJ’s findings are consistent with his conclusion that the respondents presented clear and convincing evidence the claimant is at MMI for all medical conditions causally related to the original chemical burn. Consequently, the ALJ’s finding of MMI is not contrary to the applicable law and the claimant has failed to establish grounds which afford us a basis to grant appellate relief.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 1, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ Kathy E. Dean
____________________ Curt Kriksciun
Maria A. Perez, Longmont, CO, Longmont Foods, Longmont, CO, ConAgra Foods, Inc., 1 ConAgra Dr., Omaha, NE, April Myers, Sedgwick CMS, Greeley, CO, T. Paul Krueger, II, Esq. and Douglas L. Stratton, Esq., Fort Collins, CO, (For Respondents)