W.C. No. 4-715-022.Industrial Claim Appeals Office.
July 31, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Krumreich (ALJ) dated March 3, 2009, that found that the respondents had overcome the opinion of the Division-sponsored independent medical examination (DIME) physician. We affirm.
The claimant incurred an admitted work-related injury to his right ankle on June 12, 2006. The first complaint of back pain by the claimant noted in the medical record occurred on April 7, 2007. On January 28, 2008, the authorized treating physician (ATP) assigned a 13 percent impairment of the right ankle, opined that the remainder of the claimant’s complaints were not related to the admitted accident and placed the claimant at maximum medical improvement (MMI). The claimant requested a DIME. The DIME physician opined that the low back complaints were related to the injury of June 2006. The DIME physician reported that the claimant was not at MMI because of his need for back treatment. The ALJ found that the respondents had overcome the opinion of the DIME physician. The claimant appeals this decision.
Initially we note that the claimant in his brief has made allegations regarding certain medical care providers and what a witness would have testified to if the witness had testified. We may not consider the claimant’s contentions that are not matters of record, as our review is restricted to the record before the ALJ, and the factual assertions made on appeal by the claimant’s counsel may not substitute for evidence. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Subsequent Injury Fund v. Gallegos, 746 P. 2d 71 (Colo.App. 1987); Voisinet v. Industrial Claim Appeals Office,
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757 P.2d 171 Colo. App. 1988); See Lewis v. Scientific Supply Co. 897 P.2d 905 (Colo.App. 1995).
I.
The claimant first contends that the ALJ’s factual determination that the claimant did not complain of a low back injury prior to April 7, 2007 is not supported by substantial evidence. We disagree.
Here there is support in the record for the ALJ’s determination that the treating physicians took no history of a back complaint prior to April 7, 2007. Exhibit A at 1-5; Exhibit D at 1-4. Additionally we note that the employer’s first report of injury only lists the ankle as the part of the body affected in the accident. Exhibit B. The claimant concedes that the treating physicians did not note a back complaint prior to April 7, 2007. However, the claimant argues that the fact that there was no medical record of complaints of low back pain prior to April 7, 2007 did not prove that the claimant did not make such complaints. The claimant argues the ALJ appears to have assumed that if he had complained of low back pain then the treating physicians would have recorded it. The claimant contends that there is no basis for such an assumption.
In our view, the fact that the medical record does not show a complaint of low back pain until some ten months after the occurrence of the injury is a plausible basis from which negative inferences may be drawn. In such a situation, we defer to the ALJ’s determination. See Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). In addition, the ALJ relied upon the reports and opinions of Dr. Steinmetz showing that it was highly probable that the DIME physician’s opinion regarding the claimant’s low back pain was incorrect. Exhibit G at 5; Steinmetz depo. at 16-23. Further, the ALJ found that the claimant essentially denied any low back complaint to Dr. Shank in August 2006. Exhibit O.
Here the DIME physician opined that the claimant suffered a disk protrusion at the L5-S1 level of his spine with right S1 nerve root impingement and that this was caused by the slip and fall accident. Exhibit M at 3. However, the ALJ found that the DIME physician relied upon a complaint of low back pain that did not begin until April 2007, some 10 months after the occurrence of the injury and the claimant’s non-credible assertion that he had complained of low back pain since immediately after the injury. The ALJ, based in part upon his credibility determinations, found that the DIME physician’s opinion failed to provide any probable basis for relating the claimant’s low back pain to the June 2006 injury.
We may not set aside a credibility finding unless the testimony of a particular witness, although direct and unequivocal, is “so overwhelmingly rebutted by hard, certain
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evidence directly contrary” that a fact finder would err as a matter of law in believing the witness. Halliburton Services v. Miller, 720 P.2d 571
(Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624
(Colo.App. 1997). Here the ALJ found the claimant’s assertion that he had complained of low back pain since immediately after the injury was not credible. The ALJ further found that the DIME physician’s opinion, which was based on the claimant’s assertion, was not persuasive. As noted above the medical record provides grounds to question the claimant’s credibility. Consequently, this case does not present the type of extreme circumstances where the ALJ’s credibility determinations would not be binding. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000).
Pursuant to § 8-42-107(8)(b)(III), C.R.S. 2009, a DIME physician’s finding of MMI is binding on the parties unless overcome by clear and convincing evidence. Montoya v. Industrial Claim Appeals Office 203 P.3d 620 (Colo.App. 2008); Brownson-Rausin v. Industrial Claim Appeals Office 131 P.3d 1172 (Colo.App. 2005). “Clear and convincing” evidence has been defined as evidence which demonstrates that it is “highly probable” the DIME physician’s opinion is incorrect. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998) Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The question of whether the respondents had overcome the DIME by clear and convincing evidence is one of fact for the ALJ’s determination. Metro Moving Storage Co. v. Gussert, supra. This is true despite the elevated standard of proof required to overcome a DIME: “[I]rrespective of whether the standard of proof at the administrative adjudicatory level of proceedings is clear and convincing, beyond a reasonable doubt, or merely a preponderance of the evidence, 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.” Id., 914 P.2d at 414. Therefore, the standard of review remains whether the ALJ’s findings of fact are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008; Metro Moving Storage Co. v. Gussert, supra. Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, supra. This standard of review is deferential and the scope of our review is “exceedingly narrow.” Id. In our view, the record evidence does contain substantial evidence supporting the ALJ’s determination that the respondents had overcome the DIME physician’s MMI determination by clear and convincing evidence.
II.
The claimant next contends that the ALJ erred in failing to consider the mechanics of the accident before determining that the claimant did not suffer a back injury in the accident. Here the claimant testified that he stepped on a form and then slipped and fell
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towards the right side twisting his ankle and scraping his back. Tr. at 16-17. The claimant contends that the nature of the fall compels the conclusions that the claimant suffered a back injury in the fall. We are not persuaded that the ALJ committed any reversible error.
In resolving this issue the ALJ was not required to cite disputed evidence before rejecting it as unpersuasive. Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo.App. 1988). To the contrary, the ALJ is only required to enter findings on the evidence he found dispositive of the issues, and evidence and inferences inconsistent with the order are presumed to have been rejected. Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Consequently, the absence of specific findings of fact on the issue of the mechanics of the claimant’s fall that the claimant relies upon in support of his claim does not compel a finding the ALJ failed to consider the evidence. Cf. Wecker v. TBL Excavating, Inc., 908 P.2d 1186
(Colo.App. 1995); Dravo Corp. v. Industrial Commission, 40 Colo. App. 57, 569 P.2d 345 (1977) (presumption exists that ALJ considered and gave due weight to relevant statutory factors).
Here the claimant testified about the mechanics of his fall. However, the ALJ also found that the claimant’s testimony regarding his back complaints was not credible. The ALJ was obviously not persuaded by the claimant’s testimony regarding the mechanics of his fall. Again, we perceive no reversible error in the ALJ’s determination that the respondents had overcome the DIME physician’s opinion the claimant’s low back pain is related to the June 2006 injury.
III.
The claimant contends that the ALJ erred by substituting his opinion of the claimant’s credibility for the opinion of the DIME. The claimant argues that the respondents had to prove by clear and convincing evidence that the DIME physician’s opinion on the claimant’s credibility was wrong and here the ALJ merely found on the preponderance of the evidence standard that the claimant was not credible. Again, we are not persuaded that the ALJ erred.
The courts of Colorado have held on numerous occasions that it is for the ALJ to assess claimant’s credibility and to determine the weight to be given his statements. Cabela v. Industrial Claim Appeals Office 198 P.3d 1277 (Colo.App. 2008.); See Kroupa v. Indus. Claim Appeals Office, 53 P.3d 1192, 1197 (Colo.App. 2002) (the ALJ resolves conflicts in the evidence, makes credibility determinations, determines the weight to be accorded to expert testimony, and draws plausible inferences from the evidence). In our view, in a situation such as this, where the ALJ finds that the clamant lacks credibility but the DIME physician relied upon the claimant’s report of injury the ALJ retains the right
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to determine that the DIME physician’s opinion was unpersuasive. Se Solis v. Sunshine Building Maintenance, W.C. No. 4-726-043 (June 12, 2009). This is merely a part of the determination of whether the DIME physician’s opinion has been overcome by clear and convincing evidence.
IV.
The claimant contends that the ALJ erred by basing his decision on what the ALJ thought the Division of Workers’ Compensation Rules of Procedure should be rather than relying on the rules as actually written. We disagree.
The claimant cites a portion of the ALJ’s order in which he found that the DIME physician’s opinion on the causal relationship of the claimant’s low back complaints to the June 2006 injury is in error because it is inconsistent with the medical records that do not document any complaint of low back pain until April 2007. However, contrary to the claimant’s argument, we do not read the ALJ’s order as determining that the DIME physician’s opinion was overcome because it was inconsistent with any Rule of Procedure. Rather, after resolving conflicts in the evidence, making credibility determinations, and determining the weight to be accorded to expert testimony, the ALJ drew plausible inferences from the evidence and determined that the opinion of the DIME physician’s opinion had been overcome. This is the proper function of the ALJ in resolving the question of whether the respondents had overcome the DIME by clear and convincing evidence. Metro Moving Storage Co. v. Gussert, supra.
V.
The claimant finally contends that the ALJ erred by applying an incorrect burden of proof in determining whether the DIME physician’s opinion had been overcome. We disagree.
The ALJ specifically noted that the respondents pursuant to §8-42-107(8)(b)(III) had the burden to overcome the DIME physician’s finding concerning MMI. Further, although the claimant contends there was no evidence that the claimant did not complain of low back injury prior to April 7, 2007 the ALJ found otherwise and we have concluded that there was substantial evidence to support that determination. We have reviewed the claimant’s additional arguments and they do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 3, 2009 is affirmed.
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INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
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ARTURO RODRIGUEZ, COLORADO SPRINGS, CO, (Claimant).
KANE KONCRETE, Attn: DAVID KANE, COLORADO SPRINGS, CO, (Employer).
TRUCK INSURANCE EXCHANGE, Attn: WORKERS’ COMPENSATION BCO, C/O: GUY EASTON, DENVER, CO, (Insurer)
LAW OFFICE OF WILLIAM ALEXANDER JR., PC, Attn: WILLIAM A ALEXANDER JR., ESQ., COLORADO SPRINGS, CO, (For Claimant).
VARNELL ASSOCIATES, Attn: JOE ESPINOSA, ESQ., DENVER, CO, (For Respondents).