W.C. No. 4-200-118Industrial Claim Appeals Office.
May 13, 1999.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which denied permanent total disability benefits and ongoing medical benefits for treatment of fibromyalgia. We affirm.
The claimant suffered a compensable left upper extremity injury on May 6, 1993, and underwent a left wrist fusion. Thereafter, the claimant developed pain in her lower extremities and other parts of her body. Dr. Olson, the claimant’s treating physician, diagnosed the claimant as suffering from fibromyalgia, and emotional problems secondary to the industrial injury. Based on these conditions Dr. Olson permanently restricted the claimant from returning to her pre-injury employment. Dr. Olson also recommended ongoing medical treatment. Dr. Polanco agreed with Dr. Olson’s diagnosis of fibromyalgia. However, Dr. Polanco opined that it was unrelated to the industrial injury.
The claimant applied for a hearing on permanent total disability and ongoing medical benefits, in accordance with Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). The claimant’s vocational rehabilitation expert, Bruce Magnuson (Magnuson) concluded the claimant is permanently and totally disabled. The respondents’ expert, Pat Anctil (Anctil) opined that there are part-time jobs within the claimant’s physical limitation available in Denver, Colorado.
Crediting the opinions of Anctil and rejecting the contrary opinions of Magnuson, the ALJ determined the claimant failed to establish she is unable to earn any wages. Therefore, in an order dated August 21, 1998, the ALJ denied the claim for permanent total disability benefits. Furthermore, crediting the opinions of Dr. Polanco, the ALJ determined the claimant failed to prove a causal connection between the industrial injury and the fibromyalgia. Therefore, the ALJ awarded Grover type medical benefits for the claimant’s left wrist condition but not the fibromyalgia.
The claimant filed a “Motion for Reconsideration” which alleged, inter alia, that compensability of the fibromyalgia was not endorsed for adjudication. Consequently, the claimant argued the ALJ exceeded her authority in denying Grover type medical benefits for fibromyalgia treatment. The ALJ rejected the claimant’s contention and on September 4, 1998, denied the Motion for Reconsideration.
I.
On review the claimant renews her contention that the ALJ erroneously determined compensability of the fibromyalgia. We disagree.
Under the applicable law, permanent total disability is the inability to “earn any wages in the same or other employment.” Section 8-40-201(16.5)(a), C.R.S. 1998. Furthermore, to receive benefits the claimant must prove that the industrial injury is a significant causative factor in the permanent total disability Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986).
In support of her claim for permanent total disability benefits, the claimant testified that the permanent effects of the industrial injury which preclude her from returning to work include pain her upper extremities, left leg, and left hip. (Tr. p. 34). The claimant also relied on Dr. Olson’s testimony that the industrial injury caused the fibromyalgia, that fibromyalgia is a form of chronic pain, and that the claimant’s chronic pain syndrome impairs her ability to compete in the labor market. (Tr. p. 11).
Furthermore, the claimant did not object to Dr. Polanco’s testimony that the fibromyalgia is unrelated to the industrial injury. To the contrary, claimant’s counsel extensively cross-examined Dr. Polanco on the issue. Under these circumstances, compensability of the fibromyalgia was tried by consent and the ALJ was necessarily required to determine the compensable nature of the fibromyalgia to adjudicate the claim of permanent total disability.
Moreover, the fact that the respondents admitted liability for medical benefits and paid for fibromyalgia treatment does not compel a contrary result. An admission of liability for medical benefits is not an admission that all subsequent treatment is reasonably necessary to cure or relieve the effects of the industrial injury. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). To the contrary, the respondents remain free to contest the reasonableness and necessity of any particular treatment. Williams v. Industrial Commission, 723 P.2d 749 (Colo.App. 1986). Therefore, the respondents were not precluded from arguing that the claimant’s need for ongoing fibromyalgia treatment was unrelated to the industrial injury.
II.
Alternatively, the claimant contends that there is substantial evidence in Dr. Olson’s testimony that her fibromyalgia was caused by the industrial injury and argues the ALJ erroneously rejected Dr. Olson’s opinions. We perceive no reversible error.
It is the ALJ’s sole prerogative to resolve conflicts in the medical evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). In so doing, the ALJ is free to credit one medical opinion to the exclusion of a contrary opinion. Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122
(Colo.App. 1992). We may not interfere with the ALJ’s credibility determinations except where the testimony she credited is so overwhelmingly rebutted by “hard, certain” evidence that the ALJ would err as a matter of law in crediting the testimony Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) Johnson v. Industrial Claim Appeals Office, 973 P.2d 624
(Colo.App. 1997), cert. denied, April 12, 1999.
As argued by the claimant, there is no requirement that a physician’s opinions be supported by relevant medical literature. However, the ALJ may consider the existence of corroborative medical evidence in determining the probative weight of a physician’s opinions.
Here, the record contains a direct conflict between Dr. Polanco and Dr. Olson. Dr. Olson opined that the temporal relationship between the industrial injury and the onset of the claimant’s chronic pain symptoms support a conclusion that the fibromyalgia is a natural consequence of the industrial injury. Dr. Polanco stated that there is no known cause of fibromyalgia and that a temporal relationship does not alone reflect a causal connection. (Tr. p. 58). Furthermore, Dr. Polanco testified that medical studies have found no causal relation between fibromyalgia and trauma and Dr. Olson admitted that he was unaware of any medical studies which support his opinion of a causal connection between the claimant’s fibromyalgia and her employment. (Tr. pp. 20, 55, 57). Under these circumstances, the ALJ resolved the conflict in favor of Dr. Polanco, and the record does not compel a contrary determination.
III.
Next, we reject the claimant’s contention that the ALJ erroneously limited the award of Grover type medical benefits to treatment of the “left wrist condition.” A claimant is entitled to Grover type medical benefits where there is substantial evidence in the record to support a determination that future medical treatment will be reasonable and necessary to maintain the claimant’s condition or prevent a further deterioration. Section 8-42-101(1)(a), C.R.S. 1998; Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995). Where the claimant has sustained her burden of proof, the ALJ shall enter a “general” order which awards future medical benefits which may reasonably be necessary to cure or relieve the effects of the industrial injury Milco Construction v. Cowan, 860 P.2d 539 (Colo.App. 1992).
However, Grover contemplates an award of future medical benefits for compensable injuries only. Because the ALJ was not persuaded the claimant’s fibromyalgia is compensable, the ALJ did not err in denying future medical benefits for fibromyalgia treatment.
Furthermore, Dr. Polanco opined that the claimant’s emotional and psychological problems are components of fibromyalgia and not related to the industrial injury. (Tr. pp. 57, 61-63, 62). The ALJ implicitly credited these opinions. Consequently, the ALJ did not err in denying ongoing medical benefits for “other complaints which are related to fibromyalgia” and “other non-work-related conditions.”
IV.
Finally, the claimant contends the ALJ erred in denying permanent total disability benefits because she ignored the effects of the chronic pain and depression. We are not persuaded by this argument.
Contrary to the claimant’s contention, the ALJ was not required to afford Dr. Olson’s opinions any special weight on the issue of permanent total disability. See Gonzales v. Beacon Hill Investments Inc., W.C. No. 4-124-250 (September 27, 1994). Therefore, the respondents’ vocational expert was not required to “overcome” Dr. Olson’s expressed reservations about the claimant’s ability to maintain employment.
Furthermore, the ALJ is not required to determine with absolute certainty that the claimant would be successful in obtaining and maintaining employment. Instead, the ALJ was required to determine whether it is more probable than not that the claimant is capable of earning wages. Duran v. MG Concrete Inc., W.C. No. 4-222-069 (September 17, 1998); Bonds v. Skyline Fire Protection District, W.C. No. 4-111-529 (December 5, 1995).
The medical restrictions imposed by Dr. Olson included consideration of the claimant’s chronic pain and depression. Nevertheless, Dr. Olson did not restrict the claimant from all work. In fact Dr. Olson opined that the chances of the claimant returning to work would increase after the workers’ compensation claim was closed and that returning to work would be therapeutic for the claimant. (Tr. p. 30). Dr. Olson also stated that some of the jobs identified by Anctil were consistent with the claimant’s physical limitations. (Tr. pp. 24-26).
Magnuson admitted that there were probably jobs available to the claimant within the medical restrictions imposed by Dr. Olson, and Anctil testified that there are part-time jobs available within the restrictions imposed by Dr. Olson. (Tr. pp. 49, 71). The ALJ expressly considered this evidence. Consequently, the record does not support the claimant’s assertion that the ALJ ignored the disabling effects of her chronic pain syndrome and psychological problems.
Furthermore, there is substantial evidence to support the ALJ’s finding that the claimant is not permanently and totally disabled as defined by § 8-40-201(16.5)(a). Therefore, the ALJ did not err in denying the claim for permanent total disability benefits. Christie v. Coors Transportation Co., 919 P.2d 857
(Colo.App. 1995).
IT IS THEREFORE ORDERED that the ALJ’s order dated August 21, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed May 13, 1999 the following parties:
Cynthia L. Pershin, 212 Alhambra Dr., Pueblo, CO 81005
Steven J. Gianetto, D.D.S., 409 W. 7th St., Pueblo, CO 81003-3001
Dentists Workers’ Compensation Trust, Jim Lanning, Berkley Risk Services, Inc., 920 Second Ave. South, #700, Minneapolis, MN 55402-4023
Michael W. Seckar, Esq., 402 W. 12th St., Pueblo, CO 81003 (For Claimant)
Fred Ritsema, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)
BY: le