W.C. No. 4-164-997Industrial Claim Appeals Office.
September 10, 1998
FINAL ORDER
The respondents seek review of the final order of Administrative Law Judge Henk (ALJ) which awarded permanent partial disability benefits based on a twenty-six percent whole person medical impairment rating. The respondents argue that the ALJ erroneously found clear and convincing evidence to overcome the Division-sponsored independent medical examiner’s (IME) conclusion that the claimant’s cervical condition is unrelated to the industrial injury. We affirm.
The ALJ found that the claimant sustained an “overuse type injury on December 23, 1992.” The ALJ credited the claimant’s testimony that the injury caused her to experience “a single line of pain extending from her arm through her shoulder, to her neck.”
The claimant’s treating physician, Dr. Berg, diagnosed the injury as right-sided epicondylitis. Dr. Berg placed the claimant at maximum medical improvement (MMI) in March 1994, and assessed a twenty percent impairment of the right upper extremity.
The claimant requested a Division-sponsored IME on the issue of impairment, and the examination was performed by Dr. Hughes in November 1995. Dr. Hughes assessed a twenty-three percent impairment of the right upper extremity, which he attributed to right epicondylitis and an upper extremity “myofascial pain syndrome.”
However, Dr. Hughes opined that the claimant’s neck pain was unrelated to the industrial injury. In support of this conclusion, Dr. Hughes stated that the medical records contain no report of cervical pain “until Dr. Kinnett’s evaluation of October 1993.” Dr. Hughes also explained that, absent any evidence of a “medically documented injury” to the cervical spine, it is inappropriate to assign a rating for the cervical problem. However, Dr. Hughes testified that the claimant would have a twenty-six percent whole person impairment rating if the claimant’s cervical condition is causally related to the industrial injury. (Hughes depo. p. 17).
At the hearing, the claimant presented the testimony of Dr. Dotson. Dr. Dotson opined that the claimant’s cervical and upper extremity problems stem from the 1992 industrial injury and are caused by damage to the “C-6 and C-7 level at the 6th and 7th cervical vertebra.” According to Dr. Dotson, this diagnosis is confirmed by “positive physical findings in addition to an abnormal MRI result and EMG results.” (Tr. pp. 9-13).
Under the circumstances, the ALJ found that the claimant proved by clear and convincing evidence that, contrary to the opinion of Dr. Hughes, there is a causal relationship between the industrial injury and the claimant’s cervical condition. In support of this finding, the ALJ noted that Dr. Hughes incorrectly stated there was no treatment of the claimant’s neck condition until October 1993. To the contrary, the ALJ noted evidence that the claimant received physical therapy for her neck beginning in March 1993, and that Dr. Berg’s notes mention neck pain on April 26, 1993. The ALJ also credited Dr. Dotson’s testimony, as well as Dr. Berg’s November 27, 1995 report, which states the claimant has an “overuse syndrome” which has progressed to the point that it involves her neck. Consequently, the ALJ found that the claimant has a twenty-six percent whole person impairment, and is entitled to permanent partial disability benefits based on this rating.
The ALJ also rejected the respondents’ argument that the claimant’s neck condition is related to nursing duties she performed for other employers commencing in 1994. The ALJ found that the impairment is solely the result of the 1992 injury.
I.
On review, the respondents contend that the ALJ erroneously found clear and convincing evidence that there is a causal relationship between the industrial injury and the claimant’s cervical problem. Relying on Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996), the respondents argue that the claimant was required to prove that Dr. Hughes’s IME rating was “arbitrary” in order to overcome it. In any event, the respondents assert that the record does not contain clear and convincing evidence to overcome the IME physician’s opinion concerning the cause of the cervical problem. We reject these arguments.
Section 8-42-107 (8)(c), C.R.S. 1998, provides that the finding of the IME physician regarding the medical impairment rating “shall be overcome only by clear and convincing evidence.” In Qual-Med, Inc. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. 97CA1440, May 28, 1998), the Court of Appeals held that the question of whether a particular impairment is causally related to an industrial injury is “part of the diagnostic assessment that comprises the IME process.” This is true because the “assessment of impairment requires a rating physician to identify and evaluate all losses and restrictions which result from the industrial injury.” Consequently, the Qual-Med court held that the IME physician’s opinion concerning the cause of a particular impairment must be overcome by clear and convincing evidence.
The Qual-Med court also cited Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995), for the proposition that it is the ALJ’s province as fact-finder to determine whether the IME physician’s opinion concerning causation is overcome by clear and convincing evidence. Thus, the respondents’ assertion tha Askew v. Industrial Claim Appeals Office, supra, requires the claimant to prove that the IME physician’s opinion is “arbitrary” is incorrect. Under Qual-Med, Inc. v. Industrial Claim Appeals Office, all that is required to overcome the IME physician’s findings on causation is sufficient evidence to show a “high probability” that the IME opinion is incorrect.
It follows that the question of whether the claimant overcame the opinion of Dr. Hughes by clear and convincing evidence was one of fact for the ALJ. Since the issue is factual, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301 (8), C.R.S. 1998. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences which she drew from the evidence. Metro Moving Storage Co. v. Gussert, supra. In particular, we note that the assessment of an expert medical opinion on the issue of causation is the responsibility of the ALJ. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The respondents’ argument notwithstanding, the record contains substantial evidence to support the ALJ’s finding that the claimant overcame the IME’s opinion concerning the cause of the cervical impairment. The testimony of Dr. Dotson, Dr. Berg’s report of November 27, 1995, and the claimant’s testimony support the ALJ’s order. Moreover, as the ALJ recognized, the IME opinion of Dr. Hughes is based on the incorrect assumption that there is no medical documentation of neck pain prior to October 1993.
It is certainly true that the report and testimony of Dr. Hughes, as well as other evidence in the record, would support an inference that there is no causal relationship between the industrial injury and the cervical condition. However, we may not reweigh the evidence and substitute our judgment for that of the ALJ. As stated in Metro Moving Storage Co. v. Gussert, supra, “it is solely for the trier of fact to determine the persuasive effect of the evidence and whether the burden of proof has been satisfied.” 914 P.2d 411at 414.
II.
The respondents next contend that, to the extent the claimant’s “injury” constitutes an occupational disease, she sustained a last injurious exposure and substantial permanent aggravation of the disease while working for other employers commencing in 1994. We conclude that this issue was not properly raised before the ALJ, and was therefore waived.
Section 8-41-304 (1), C.R.S. 1998, provides that where compensation is payable for an occupational disease, the “employer in whose employment the employee was last injuriously exposed to the hazards of such disease and suffered a substantial permanent aggravation thereof and the insurance carrier, if any, on the risk” shall alone be liable for the claimant’s compensation. Because this statute permits an employer and its insurer to shift liability to other employers and insurers, the statute creates an affirmative defense. See Cowin and Co. v. Medina, 860 P.2d 535
(Colo.App. 1992) (party relying upon a statutory exception has the burden of establishing the factual predicate for its application). Since § 8-41-304 (1) creates an affirmative defense, the defense is waived unless specifically pled. See Kersting v. Industrial Commission, 39 Colo. App. 297, 567 P.2d 394 (1977).
Here, the respondents’ Response to Application for Hearing does not mention the defense established by § 8-41-304, or otherwise indicate the respondents’ intent to shift liability to other employers and insurers. To the contrary, the only specific defense listed in the response is “Whether Claimant has presented sufficient evidence to overcome the opinion of the Division IME by clear and convincing evidence.” Moreover, at the commencement of the hearing, claimant’s counsel stated that the issue for hearing was whether the IME opinion could be overcome by clear and convincing evidence, and that “the issue turns on causation of the neck impairment.” Counsel for the respondents did not object to this statement of the issue, nor did he indicate an intention to raise § 8-41-304. The respondents also filed a Final Admission of Liability for medical impairment benefits based on the claimant’s upper extremity impairment. At no time did the respondents indicate that they wished to withdraw the admission and seek to impose liability on some other employer or insurer.
It is true that some questions of Dr. Dotson, as well as the testimony of Mr. Drew, concern a possible “aggravation” of the claimant’s condition while working for subsequent employers. However, we cannot say that these questions were sufficient to alert the claimant that the respondents intended to raise the defense created by § 8-41-304. Although the questions and the answers could be relevant to the issues of last injurious exposure and substantial permanent aggravation, they are also relevant to the respondents’ general argument that the claimant’s neck condition is unrelated to the 1992 industrial injury. Consequently, we cannot say that the claimant tried by consent the issue of § 8-41-304. See Bill Dreiling Motor Co. v. Shultz, 168 Colo. 59, 450 P.2d 70 (1969); Broadmoor Hotel v. Industrial Claim Appeals Office, 939 P.2d 460 (Colo.App. 1996).
III.
The respondents’ final contention is that the evidence does not support the ALJ’s determination of the claimant’s overall medical impairment. However, we agree with the claimant that the award of benefits is wholly supported by the testimony of Dr. Hughes that the claimant has a twenty-six percent impairment if the neck condition is found to be related to the 1992 injury.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 29, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed September 10, 1998 to the following parties:
Maria T. Rios, P.O. Box 12394, Denver, CO 80212
Support Services, Inc., Attn: Sharon Thompson, P.O. Box 22438, Denver, CO 80222
Scott Nelson, NHA, Crowley County Nursing Center, 401 Idaho Ave., Box 488, Ordway, CO 81063
Michael W. Seckar, Esq., 402 W. 12th Street, Pueblo, CO 81003 (For Claimant)
William A. Richardson, Esq., 400 Sussex Building, 1430 Larimer Square, Denver, CO 80202 (For Respondents)
BY: _______________________