W.C. No. 4-236-910Industrial Claim Appeals Office.
November 4, 1996
FINAL ORDER
Respondents seek review of a final order of Administrative Law Judge Gandy (ALJ) which ordered the respondents to pay temporary total disability benefits from May 15, 1995 through October 14, 1995. We affirm.
The ALJ found that the claimant sustained a compensable injury when he slipped and fell at work on November 11, 1994. The claimant experienced symptoms of headache, neck and back pain. He sought treatment from the employer’s designated physician, Dr. Lynch, on November 28, 1994. After treating the claimant with physical therapy and referral to a neurologist, Dr. Lynch pronounced the claimant at maximum medical improvement (MMI) on January 11, 1995. Dr. Lynch also opined that the claimant had no permanent medical impairment and could return to work without restrictions.
However, based on the claimant’s testimony, the ALJ found that the claimant continued to suffer from neck and back pain following the release by Dr. Lynch. Consequently, the claimant sought unauthorized treatment from Dr. Kaiser, who in turn referred the claimant to Dr. Beard. In a report dated January 25, 1995, Dr. Kaiser opined that the claimant was not at MMI. An MRI was performed on May 17, 1995, and the results indicated that the claimant had a “mild broad based disc protrusion” with degenerative changes at C5-C6.
Based on the results of the MRI, Dr. Beard recommended that the claimant undergo a discectomy and fusion at C5-C6 level, and this was performed in September 1995. Dr. Beard also opined that the claimant’s ongoing neck complaints were the result of the industrial injury.
The claimant requested that the Division appoint an independent medical examiner (IME) concerning the issues of MMI and permanent impairment. The Division appointed Dr. Brownstone, who performed an IME examination on May 18, 1995. In a report dated May 18, Dr. Brownstone opined that the claimant reached MMI on January 11, 1995.
Subsequently, Dr. Brownstone’s deposition was taken by the parties on January 4, 1996. During the deposition, Dr. Brownstone testified that he did not have the benefit of the May 17 MRI report at the time of the IME. Dr. Brownstone went on to state that he believed the claimant’s neck symptoms were causally related to the industrial injury, and that the need for surgery was causally related to the industrial injury. (Brownstone depo., pp. 12, 15). Dr. Brownstone also testified that, based upon “additional medical reports” and the MRI study, he would change his opinion that the claimant reached MMI in January 1995. (Brownstone depo., p. 16). Somewhat paradoxically, Dr. Brownstone also questioned whether the September neck surgery was necessary. (Brownstone depo., p. 20).
Under these circumstances, the ALJ concluded that the claimant was entitled to temporary disability benefits for the disputed period. Specifically, the ALJ found that Dr. Brownstone “changed his opinion” that the claimant reached MMI on January 11, 1995. In any event, the ALJ held that, even if Dr. Brownstone did not change his opinion, Brownstone’s finding that the claimant reached MMI on January 11 was overcome by clear and convincing evidence. In support of this conclusion, the ALJ cited the reports of Dr. Kaiser and Dr. Beard, and the claimant’s own testimony that he obtained significant symptomatic relief from the surgery performed by Dr. Beard.
I.
On review, the respondents first contend that the ALJ’s findings of fact are insufficient to support appellate review because it is impossible to tell whether he applied the correct legal standard in awarding temporary disability benefits. Specifically, the respondents assert that the ALJ was obliged to determine whether or not Dr. Brownstone’s finding of MMI on January 11 was overcome by clear and convincing evidence, and it is impossible to tell whether the ALJ did so. The respondents also argue that, even if the ALJ applied the correct standard, it is impossible to ascertain on what basis the ALJ concluded that Dr. Brownstone’s opinion was overcome. We reject these arguments.
Under the statute currently codified as §8-42-107(8)(b)(III), C.R.S. (1996 Cum. Supp.), the finding of an IME physician concerning the date of MMI may be “overcome only by clear and convincing evidence.” We assume, for the sake of argument, that Dr. Brownstone did not “change” his opinion that the claimant reached MMI on January 11, and that the issue is whether the ALJ correctly found that Dr. Brownstone’s finding of MMI was overcome by clear and convincing evidence.
The respondents’ argument notwithstanding, Finding of Fact 16 and Conclusion of Law 2 explicitly state that the reports of Dr. Kaiser and Dr. Beard, together with the claimant’s testimony, are sufficient to overcome Dr. Brownstone’s MMI opinion by clear and convincing evidence. Thus, the ALJ correctly applied the clear and convincing standard, and cited specific evidence which he found persuasive on this issue. It follows that the respondents’ assertion that the findings are insufficient to support appellate review cannot be sustained. Moreover, we need not consider whether the ALJ correctly found that Dr. Brownstone changed his opinion concerning the date of MMI.
II.
The respondents next contend that specific findings of fact are unsupported by substantial evidence, and that these erroneous findings influenced the ALJ’s decision. We reject these arguments.
Initially, we note that we must uphold the ALJ’s pertinent findings of fact if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.). It is for the ALJ to assess the weight of the evidence, the credibility of the witnesses and the inferences to be drawn from the evidence Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995). The question of whether the claimant presented sufficient evidence to overcome Dr. Brownstone’s MMI determination is itself one of fact for the ALJ. Metro Moving Storage Co. v. Gussert, supra.
The respondents attack Finding of Fact 7 insofar as it stated that the “cervical MRI was the first diagnostic test other than plain X-ray films which were taken shortly after the fall.” The respondents assert that this finding does not account for the fact that the claimant underwent x-rays of his cervical spine on December 31, 1994, at Poudre Valley Hospital.
The respondents’ argument notwithstanding, this finding constitutes a plausible interpretation of the evidence. As we understand the finding, the ALJ’s reference to plain x-ray films taken shortly after the fall was a reference to the Poudre Valley Hospital x-rays themselves. It is true that the claimant had undergone prior x-rays of his skull, but these were not directly related to his cervical complaints. Thus, the December 31 x-rays were the “first” diagnostic tests directed at the claimant’s neck, and the MRI was the first diagnostic test after the Poudre Valley x-rays.
The respondents also attack Finding of Fact 10 insofar as it states that Dr. Brownstone testified that the injuries suffered by the claimant resulted in the need for surgery. The respondents argue that Dr. Brownstone stated that he did not believe the claimant needed surgery.
In fact, the ALJ’s finding is fully supported by Dr. Brownstone’s testimony during his deposition. (Brownstone depo., p. 15). It is true that Dr. Brownstone expressed reservations concerning whether or not surgery was necessary, but the ALJ’s finding concerned causation of the neck problems, not the issue of whether the claimant actually needed the surgery.
Finally, the respondents contend that Finding of Fact 12 is incorrect insofar as it states that Dr. Brownstone changed his opinion concerning MMI. As we have already held, this finding is not critical to an affirmance of the ALJ’s decision since the ALJ alternatively found that Dr. Brownstone’s opinion was overcome. In any event, the ALJ could properly resolve the inconsistencies in Brownstone’s testimony, and enter Finding of Fact 12 See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (it is proper for an ALJ to resolve the inconsistencies contained in the testimony of a medical expert).
Insofar as the respondents make other arguments, they concern the weight and credibility of the evidence, and we consider them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 25, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify orvacate the Order is commenced in the Colorado Court of Appeals, 2East 14th Avenue, Denver, Colorado 80203, by filing a petition toreview with the court, with service of a copy of the petitionupon the Industrial Claim Appeals Office and all other parties,within twenty (20) days after the date the Order was mailed,pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum.Supp.).
Copies of this decision were mailed November 4, 1996 to the following parties:
Raul Raygoza, Sr., 300 E. Harmony Rd., #142, Ft. Collins, CO 80525
Tynan’s Ft. Collins Nissan, Inc., 5811 S. College Ave., Ft. Collins, CO 80525-3940 % California Indemnity Ins., Attn: Julie Maxfield, P.O. Box 6597, Englewood, CO 80155-6597
Stephen J. Jouard, Esq., P.O. Drawer J, Ft. Collins, CO 80522 (For the Claimant)
Scott M. Busser, Esq., 300 S. Jackson St., #570, Denver, CO 80209 (For the Respondents)
By: _______________________