W.C. No. 4-174-632Industrial Claim Appeals Office.
March 18, 1998
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Friend (ALJ) which awarded temporary disability and medical benefits. We modify the award of temporary disability benefits and, as modified, affirm the order.
The claimant suffered compensable injuries on January 9, 1993, including an injury to her left ankle. On December 28, 1994, the claimant underwent an arthroscopy and debridement of her left ankle. On August 15, 1996, Dr. Conklin performed additional ankle surgery. Thereafter, the claimant was medically restricted from returning to work until December 2, 1996.
The treating physician determined the claimant to be at maximum medical improvement (MMI) in late 1993. However, the claimant requested a Division-sponsored independent medical examination (IME) pursuant to the statutory language currently codified at § 8-42-107(8)(b)(III), C.R.S. 1997.
Dr. Bainbridge performed the Division-sponsored IME on October 23, 1995. Dr. Bainbridge diagnosed the claimant with degenerative joint disease in the left ankle, which was aggravated by the January 1993 industrial injury. Dr. Bainbridge also noted that the claimant was functioning quite well before the industrial injury and attributed all of her subsequent treatment to the industrial injury. Furthermore, Dr. Bainbridge recommended additional medical treatment to cure or relieve the effects of the industrial injury. Therefore, Dr. Bainbridge opined that the claimant was not at MMI.
The ALJ found that the respondent failed to overcome by “clear and convincing evidence” Dr. Bainbridge’s opinion that the claimant’s need for additional medical treatment was caused by the 1993 industrial injury. Consequently, the ALJ ordered the respondent to pay for all authorized medical treatment of the left ankle including the August 1996 surgery. Moreover, the ALJ found that the industrial injury was the proximate cause of the claimant’s temporary disability between August 15, 1996 and December 2, 1996. Therefore, the ALJ ordered the respondent to pay temporary disability benefits.
On review, the respondent contends that the ALJ misapplied the law by requiring them overcome Dr. Bainbridge’s opinion on the cause of the claimant’s need for further medical treatment by “clear and convincing evidence.” The respondent contends that the special weight afforded the IME physician’s opinion under §8-42-107(8)(b) does not include the IME physician’s opinion on the issue of causation. Therefore, the respondent argues that the ALJ erroneously required them to pay temporary total disability benefits and further medical benefits. We disagree.
Insofar as pertinent, § 8-42-107(8)(b), C.R.S. 1997, provides that an authorized treating physician shall make the initial determination of MMI, and if either party “disputes” that determination, the parties shall select a physician to perform an IME. The statute also provides that where the parties are unable to agree on an IME physician, the Division shall appoint the IME physician, and opinion of the IME physician is binding unless overcome “by clear and convincing evidence.” Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995).
Under section 8-40-201(11.5), C.R.S. 1997 MMI exists when “any medically determinable physical or mental impairment as a result of injury has become stable and when no further treatment is reasonably expected to improve the condition.” Therefore, we have previously held that § 8-40-201(11.5) inherently requires the IME physician to make judgments concerning the cause or causes of a claimant’s need for treatment. Cordova v. United Parcel Service, W.C. No. 4-165-196 (May 9, 1997) Fields v. TAD Temporaries, W.C. No. 4-185-877, September 7, 1995. We have also concluded that § 8-42-107(8)(b) reflects a legislative intent that ALJs to defer to an IME physician’s opinion concerning the cause of the need for additional treatment, unless the opinion is overcome by clear and convincing evidence at a hearing. See also Chestnut v. University of Colorado-Boulder, W.C. No. 4-255-498, December 13, 1996. We adhere to our previously stated position. It follows that the respondent bore the burden to present “clear and convincing evidence” to overcome Dr. Bainbridge’s opinion that the industrial injury is the cause of the claimant’s need for additional treatment.
Alternatively, the respondent asserts that “overwhelming evidence” in the reports of the authorized treating physicians compelled the ALJ to find that the claimant’s need for additional treatment is not related to the original industrial injury. Further, the respondent contends that the ALJ erred insofar as he ignored the opinions of the authorized treating physicians and relied upon the opinions of the unauthorized treating physicians. We are not persuaded.
The question of whether the IME physician’s opinion has been overcome by “clear and convincing evidence” is a factual matter for resolution by the ALJ. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Clear and convincing evidence is 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). Therefore, the party challenging the opinions of the IME physician must produce evidence which shows that it is “highly probable” the IME physician’s determination of MMI is incorrect.
We may not interfere with the ALJ’s resolution of this issue if his determinations are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. In applying this standard, we must view the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and the plausible inferences he drew from the evidence. Consequently, the scope of our review is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert, 914 P.2d at 415.
Contrary to the respondent’s contention, the ALJ expressly recognized the medical evidence which contradicted the opinions of Dr. Bainbridge. See Finding of Fact 2. However, the ALJ was not persuaded that the evidence was free from serious or substantial doubt and that the evidence established that is highly probable Dr. Bainbridge incorrectly resolved the issue of MMI. Furthermore, the ALJ was not required expressly to cite the disputed evidence before rejecting it as unpersuasive. Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo.App. 1988).
Moreover, there is substantial evidence in the reports of Dr. Jahnke and Dr. Conklin to support Dr. Bainbridge’s finding of a causal relationship between the industrial injury and the claimant’s need for additional medical treatment. Therefore, we cannot say that the ALJ erred in finding that the respondent failed to sustain its burden to overcome Dr. Bainbridge’s opinions.
The respondent’s remaining arguments are without merit. In determining whether the respondent overcame Dr. Bainbridge’s opinions, the ALJ was not limited to the medical opinions of “authorized treating physicians.” Further, the fact that Dr. Bainbridge, Dr. Conklin and Dr. Jahnke did not exam the claimant until 18 months after the industrial injury is relevant to the weight of their opinions, but did not preclude the ALJ from crediting their reports.
However, we note a clerical error in the ALJ’s order. Paragraph 5 of the ALJ’s “Conclusions of Law and Order” requires the respondent to pay temporary total disability benefits for the period August 15, 1996 through November 11, 1996. However, the ALJ found that the claimant was “off work as a result of her industrial injury” between August 15, 1996, and December 2, 1996. (Finding of Fact 9). Further, it was undisputed that the claimant was seeking temporary disability benefits for the period August 15, 1996 to December 2, 1996. (Tr. April 2, 1997 pp. 3, 8). Under these circumstances, we read the ALJ’s order as reflecting his determination that the respondent is liable for temporary total disability benefits from August 15, 1996 through December 2, 1996. Thus, we correct the ALJ’s order accordingly.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 22, 1997, is modified to require the respondent to pay temporary total disability benefits from August 15, 1996 thru December 2, 1996. As modified, the ALJ’s order 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, 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. 1997.
Copies of this decision were mailed March 18, 1998 to the following parties:
Patricia E. Pinkard, 12361 W. 16th Drive, Lakewood, CO 80215
Jefferson County School District R-1, Attn: Carrie Higgerson, 1829 Denver West Drive, #27 Golden, CO 80401
Neil D. O’Toole, Esq., 226 W. 12th Ave., Denver, CO 80204-3625 (For the Claimant)
James R. Clifton, Esq. Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., Ste. 400, Denver, CO 80227 (For the Respondent)
By: ________________________________