W.C. No. 4-670-876.Industrial Claim Appeals Office.
November 9, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated July 19, 2007, that found the respondents overcame the Division-sponsored independent medical examination (DIME) physician’s determination by clear and convincing evidence regarding the cause of the claimant’s right shoulder condition and his date of maximum medical improvement (MMI). We affirm.
The ALJ’s pertinent findings of fact are as follows. On October 10, 2005, the claimant fell off the back of landscaping truck and injured his left shoulder in an admittedly compensable accident. The claimant initially returned to his regular employment with no restrictions. He underwent left shoulder surgery on December 6, 2005, and never returned to work for the employer after his surgery. In February 2006, approximately two weeks after having the sling removed from his left arm, the claimant began to experience right shoulder problems. The claimant testified that between the time of his left shoulder surgery and the date his right shoulder became symptomatic he did not perform many physical activities. He was not working at the time. By April 2006 the claimant had restarted his previous landscaping business and he continued to operate the business until October 2006. The claimant explained that he performed some physical work in operating the company but employees performed most of the heavy labor. The claimant’s right shoulder condition worsened during the period he operated his company.
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The claimant’s authorized treating physician placed him at MMI on June 22, 2006. The claimant objected to the final admission of liability filed by the respondents and requested a DIME, which was performed by Dr. Regan. Dr. Regan opined that because the claimant’s use of his left shoulder was limited as a result of the admitted industrial injury, he sustained an over-use type injury to his right shoulder. Dr. Regan concluded that the claimant had reached MMI on June 22, 2006, for his left shoulder but had not reached MMI for his right shoulder.
The respondents sought to overcome the DIME doctor’s opinion regarding the cause of the right shoulder injury and regarding MMI. The ALJ found that the respondents demonstrated that it was highly probable that the DIME physician’s determination regarding the cause of the claimant’s right shoulder condition was incorrect. The ALJ determined that the DIME physician’s opinion was based upon speculation about the activities that the claimant may have performed between the time of his left shoulder surgery and the emergence of his right shoulder symptoms. The ALJ found that there was no evidence that the claimant performed any repetitive functions at home or elsewhere with his right shoulder while recovering from his left shoulder surgery. Instead, the claimant performed very limited activities that would not be considered repetitive. In contrast, the ALJ found that, in reaching his contrary opinion, Dr. Sacha had considered the claimant’s activities between the time of his left shoulder surgery and his development of right shoulder symptoms. Dr. Sacha had also reviewed the claimant’s February 15, 2007, MRI. Dr. Sacha persuasively explained that the claimant’s right shoulder condition was not caused by any repetitive overuse from the household activities that the claimant performed while his left shoulder was recovering from surgery. Dr. Sacha credibly opined that the claimant’s condition constituted a chronic arthritic problem that was likely caused by multiple small injuries over time and by many years of hard work.
The ALJ concluded that the respondents had demonstrated that it was highly probable that the DIME physician’s MMI determination was incorrect. Accordingly, the ALJ determined that opinion was overcome by clear and convincing evidence and that the claimant’s right shoulder condition was not causally related to his admitted industrial injury.
On appeal, the claimant notes that the DIME physician’s opinion was consistent with those of two other physicians, Dr. Wunder and Dr. Aschberger. The claimant argues that Dr. Sacha’s testimony was incredible and was not clear. The claimant further argues that due to inconsistencies in Dr. Sacha’s testimony the opinion of the DIME physician should have been sustained.
The finding of a DIME physician that a claimant has or has not reached MMI is binding unless overcome by clear and convincing evidence. Section 8-42-107(2)(b)(III),
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C.R.S. 2007. A finding of MMI inherently involves issues of diagnosis because the physician must determine what medical conditions exist and which are causally related to the industrial injury. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). Because the determination of causation is an inherent part of the diagnostic process, the DIME physician’s finding that a condition is or is not related to the industrial injury must be overcome by clear and convincing evidence. Cordova v. Industrial Claim Appeals Office, supra.
The evidentiary standard of proof applied by the ALJ is not the same as the standard of review applied by us in determining the correctness of the ALJ’s order. By statute, we must apply the substantial evidence test in determining whether the evidence supports the ALJ’s findings of fact. Section 8-43-301(8) C.R.S. 2007; Metro Moving Storage Co. v. Gussert, 914 P.2d 411(Colo.App. 1995). The court of appeals has consistently ruled that conflicts in the medical evidence are for the ALJ’s resolution. This fundamental principle of appellate review is not altered by the fact that the evidentiary standard of proof under §8-42-107(8)(c) C.R.S. 2007 is whether the opinion is overcome by “clear and convincing” evidence. Metro Moving Storage Co. v. Gussert, supra.
Whether a party has overcome the opinion of a DIME physician as to MMI is generally a question of fact for the ALJ. Postlewait v. Midwest Barricade, 905 P.2d 21(Colo.App. 1995); Magnetic Engineering, Inc. v. Industrial Claim Appeals Office 5 P.3d 385 (Colo.App. 2000). The clear and convincing standard set forth in § 8-42-107(8)(b) is satisfied by a showing that the truth of a contention is highly probable. Where, as here, the medical evidence is subject to conflicting inferences, the ALJ is the sole arbiter of conflicting medical evidence, and the ALJ’s findings are binding on review if supported by substantial evidence and plausible inferences drawn from the record. See Askew v. Sears Roebuck Co., 914 P.2d 416 (Colo.App. 1995). The fact that alternative findings or inferences are possible affords no basis for appellate relief Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
Here, substantial evidence supports the ALJ’s finding that the respondents overcame the DIME physician’s determination of MMI. Dr. Sacha was accepted as an expert in physical medicine rehabilitation, pain management and electro-diagnostic medicine. Tr. at 27. The record also reflects that Dr. Sacha has worked with the Division of Workers’ Compensation (Division) with regard to the development of medical treatment guidelines and the training of physicians. Tr. at 29-30. Dr. Sacha taught the Level II Division’s course regarding how to assess causation, specifically with respect to shoulder injuries. Tr. 30. Dr. Sacha expressed the opinion that in the present case the causality analysis was clear-cut and the right shoulder problems were not work-related. Tr. at 46. The ALJ rejected the DIME physician’s determination regarding the cause of the claimant’s right shoulder condition in part, because it was based on speculation about
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the activities that the claimant may have performed between the time of his left shoulder surgery and the emergence of right shoulder symptoms. Regan Depo. at 21-22.
Our review of the record reflects that the ALJ’s findings are supported by substantial, albeit conflicting, evidence in the record. We note that the weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). Here, the ALJ weighed the conflicting medical evidence and in extensive findings explained the basis for his crediting the opinions contrary to those of the DIME physician. Further, the ALJ recognized and applied the pertinent legal standards. Consequently, the order must be affirmed.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 19, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
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HALL IRWIN CORPORATION, Attn: MR. ED FOSTER, MILLIKEN, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
LAW OFFICES OF REGINA M WALSH ADAMS, Attn: REGINA M. WALSH ADAMS, ESQ., GREELEY, CO, (For Claimant)
RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: THOMAS M STERN, ESQ., DENVER, CO, (For Respondents).