W.C. No. 4-179-628Industrial Claim Appeals Office.
November 30, 1998
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which determined maximum medical improvement (MMI) and terminated medical benefits. We affirm.
In 1993, the claimant suffered a compensable injury. As a result of the injury, the claimant developed pain in his neck and left shoulder. Dr. Suderman reported that the claimant’s clinical complaints were out of proportion with his physical findings.
Eventually, Dr. Lilly became the claimant’s primary treating physician. In a report dated May 31, 1994, Dr. Lilly diagnosed several problems related to the claimant’s neck and left shoulder manifested by restricted range of motion. Dr. Lilly reexamined the claimant in August 1994, at which time he reported that the claimant’s condition was unchanged. In September 1994, the respondents obtained a videotape of the claimant performing various activities. Dr. Lilly testified that the video tape reflected a “vastly superior level of activity” than the claimant presented in his office. Dr. Lilly also stated that the claimant’s degree of muscle pain and joint restriction was much less than suggested in the prior medical reports. The claimant was seen again by Dr. Lilly on May 25, 1995, at which time Dr. Lilly opined that the claimant’s psychogenic overlay was more severe than all of the objective findings. Dr. Lilly placed the claimant at MMI in December 1994.
Thereafter, the claimant underwent an independent medical examination (IME) by Dr. Roth, who diagnosed various problems in the claimant’s neck and left shoulder. However, after viewing the videotape, Dr. Roth opined that the claimant reached MMI on June 3, 1995 and required no further treatment for the industrial injuries. In rendering this opinion, Dr. Roth stated that the activities performed by the claimant on the videotape were incompatible with the claimant’s presentation during the IME and the history of the 1993 injury.
In October 1995, Dr. Hine conducted a Division-sponsored IME on the issue of MMI. Dr. Hine diagnosed a chronic left rotator cuff tear, and an injury to the left superspinatis muscle. Dr. Hine recommended an MRI to confirm his diagnosis. The MRI showed a subacromial bursitis and acromial clavicular joint arthritis with impingement on the rotator cuff, and degenerative changes in the glenoid labrum. A cervical MRI showed a small herniated disc. Given these findings, Dr. Hine opined that the MRI revealed an anatomic explanation for the claimant’s pain and restricted motion in the left shoulder. Consequently, Dr. Hine opined that the claimant is not at MMI and recommended additional treatment.
Dr. Hine also agreed with Dr. Roth and Dr. Lilly that the claimant’s activities on the videotape are inconsistent with the IME findings. However, Dr. Hine stated that due to the claimant’s chronic impingement syndrome, continued use of the left shoulder may have caused the claimant’s condition to progress to the point that he had decreased function at the time of the Division-sponsored IME. (Hine depo. p. 20).
The ALJ found that during Dr. Hine’s deposition testimony, he “wavered” on the cause of the claimant’s need for further medical treatment. The ALJ also found that the videotape showed the claimant engaged in activities with no apparent physical restrictions to his shoulder and neck, which was inconsistent with the medical records which indicate that the claimant has severe torticollis (tilting of his neck), and is unable to move his left shoulder. Therefore, crediting the opinions of Dr. Lilly and Dr. Roth, the ALJ concluded that the claimant did not require further medical treatment as a result of the June 1993 injury, and that the respondents presented “clear and convincing evidence” to overcome Dr. Hine’s opinion that the claimant is not at MMI.
On review, the claimant contends that Dr. Hine’s MMI determination is supported by the MRI results, the physical findings of muscle spasms in the left upper quadrant, and Dr. Hine’s finding of a mass over the left shoulder, secondary to chronic muscle spasms. The claimant contends that this objective evidence is entitled to greater weight than the opinions of Dr. Roth and Dr. Lilly. Furthermore, the claimant contends that Dr. Roth’s testimony is not credible because he is biased in favor of the insurance industry. Therefore, the claimant argues that the ALJ erred in finding that Dr. Hine’s determination of MMI was overcome by clear and convincing evidence. We disagree.
Under § 8-42-107(8)(c), C.R.S. 1998, an IME physician’s determination that the claimant is not at MMI is binding unless overcome by “clear and convincing evidence.” “Clear and convincing evidence” is evidence which demonstrates that it is “highly probable” that the IME physician’s opinion is incorrect. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The determination of whether the respondents sustained their burden to overcome the IME physician’s opinion is a question of fact for resolution by the ALJ. Metro Moving Storage Co. v. Gussert, supra. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. In applying this standard, we must view the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences the ALJ drew from the evidence. Consequently, the scope of our review is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert, 914 P.2d at 415.
The record contains conflicting medical evidence concerning whether the physical findings of torticollis and muscle spasms are voluntary or involuntary symptoms. Dr. Roth testified that muscle spasms and torticollis can be feigned, (tr. p. 33), and Dr. Lilly agreed. (Lilly depo. p. 11). Dr. Roth also opined that given the claimant’s unrestricted movement in the videotape, the medically documented “spasms” were “voluntary.” (Tr. p. 34).
Further, Dr. Roth testified that the claimant’s C6-7 abnormality was of “questionable significance,” and that MRI findings reflect a medical condition, but do not necessarily indicate a condition which presents a problem that requires treatment. (Tr. pp. 12, 35). Rather, Dr. Roth opined that the claimant’s movement in the videotape indicated that further treatment for the conditions reflected in the MRI was not reasonable or necessary. (Tr. pp. 30, 31). The ALJ could reasonably infer from Dr. Roth’s testimony that even if claimant’s objective findings were caused by the industrial injury, the claimant does not require additional treatment to achieve MMI See § 8-40-201(11.5), C.R.S. 1998 (MMI is the point in time when the claimant’s condition is “stable and no further treatment is reasonably expected to improve the condition”).
In so doing, the ALJ was free to consider evidence of Dr. Roth’s bias in evaluating the credibility and probative weight of his opinions. However, the claimant’s bald assertion of bias did not preclude the ALJ from crediting Dr. Roth’s opinions. See Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987) (statements made by counsel in a pleading may not substitute for evidence which is not in the record). Furthermore, evidence that Dr. Roth examined the claimant at the request of the respondent-insurer is alone insufficient to establish bias.
We also note that Dr. Roth’s testimony is consistent with Dr. Lilly’s observations of the claimant. (Tr. pp. 9, 10). Consequently we cannot say that as a matter of law that the ALJ erred in crediting Dr. Roth’s opinions. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) (ALJ’s credibility determinations may not be disturbed unless testimony he credited is rebutted by hard, certain evidence).
The claimant’s further arguments have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 21, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________________ Kathy E. Dean
__________________________________ Dona Halsey
NOTICE This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed November 30, 1998
to the following parties:
Joseph L. Quintana, P.O. Box 152, Ft. Garland, CO 81133
Battle Mountain Gold, 333 Clay St., Floor 42, Houston, TX 77002-4000
Pacific Employers Insurance Co., P.O. Box 2941, Greenwood Village, CO 80150-0141
Anita Fresquez-Montoya, CIGNA Property Casualty, P.O. Box 2941, Greenwood Village, CO 80150-0141
Dale A. Gerlach, Esq., P.O. Box 636, Colorado Springs, CO 80901 (For Claimant)
Carol Finley, Esq., 111 S. Tejon St., #700, Colorado Springs, CO 80903 (For Respondents)
BY: ______________________