W.C. No. 4-410-968.Industrial Claim Appeals Office.
August 21, 2003.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Coughlin (ALJ), which determined the claimant was at maximum medical improvement (MMI) and awarded permanent partial disability benefits based on medical impairment of 10 percent of the whole person. The claimant contends the ALJ erred in determining she was at MMI for an alleged “cervical injury” sustained in the course of the industrial injury. We affirm.
The claimant sustained admitted injuries to her neck and left upper extremity when she fell in a parking lot on December 11, 1998. (Finding of Fact 4). The claimant was originally diagnosed with a shoulder and neck strain. By February 1999, the treating physician, Dr. Stull, opined that claimant’s was suffering from “post-traumatic subacromial bursitis/subacromial impingement syndrome.” Ultimately, Dr. Stull performed surgery to the letter shoulder on September 16, 1999. In December 1999, Dr. Stull stated that claimant was “at MMI” for the shoulder, but “should be evaluated by a cervical spine specialist or physiatrist to further evaluate” ongoing neck symptoms.
The claimant underwent a Division-sponsored independent medical examination (DIME) on the issues of MMI and permanent impairment. The DIME physician, in a report dated June 10, 2002, diagnosed the claimant with “left shoulder strain with impingement syndrome” and “residual AC joint arthropathy.” The DIME physician agreed with Dr. Stull that the claimant reached MMI on December 1, 1999. Although the DIME physician noted the claimant has ongoing neck pain, she opined this pain is secondary to the primary diagnosis of left shoulder strain and impingement syndrome. In support of this conclusion the DIME physician noted the claimant had a normal cervical MRI in September 2000, and experienced significant relief with AC joint injections. Finally, the DIME physician stated the claimant’s pain pattern is consistent with a shoulder problem “and not a secondary injury to the neck.” The DIME physician assigned a 17 percent upper extremity impairment rating based on injury to the shoulder joint, which converts to a 10 percent whole person impairment.
The claimant sought a hearing to overcome the DIME physician’s opinion that she reached MMI in December 1999, and that she was not entitled to a separate whole person impairment rating for an injury to the cervical spine. The claimant also sought conversion of the upper extremity impairment rating to a whole person rating. The ALJ found the claimant failed to overcome the DIME physician’s opinion that the claimant reached MMI on December 1, 1999. Instead, implicitly crediting the DIME physician’s opinion, the ALJ found the claimant’s “primary injury was to her left shoulder, with subsequent impingement syndrome and AC joint arthropathy, and the injury did not totally resolve with conservative or surgical treatment.” (Finding of Fact 19). The ALJ also found the claimant established that the shoulder injury resulted in functional impairment beyond the arm at the shoulder, specifically involving “the left trapezius muscle and left cervical muscles.” Consequently, the ALJ awarded permanent partial disability benefits based on a 10 percent whole person medical impairment rating. The ALJ further awarded ongoing medical benefits after MMI, including “occasional facet blocks, trigger point injections, and medication refills.”
On review, the claimant contends neither the evidence nor the ALJ’s findings of fact support the conclusion the claimant reached MMI on December 1, 1999. Instead, the claimant argues the evidence and the ALJ’s findings compel the conclusion that the claimant sustained a distinct cervical injury for which she was never adequately treated. Consequently, the claimant argues, she overcame the DIME physician’s finding of MMI, and ultimately the failure to assess a permanent impairment rating for the cervical injury. We find no error.
Because the claimant was challenging the DIME physician’s opinions concerning MMI and medical impairment, she was required to overcome the DIME physician’s findings on these issues by clear and convincing evidence. Section 8-42-107(8)(b)(III), C.R.S. 2002; § 8-42-107(8)(c), C.R.S. 2002. Findings of MMI and medical impairment necessarily require the DIME physician to determine whether a causal relationship exists between a particular condition and the industrial injury. Consequently, the DIME physician’s findings with regard to causation must be overcome by clear and convincing evidence. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
The questions of whether the claimant overcame the DIME physician’s findings concerning the cause of her conditions and impairment are issues of fact for determination by the ALJ. Consequently, these determinations must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002; Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998). This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Metro Moving Storage Co. v. Industrial Claimed Appeals Office, 914 P.2d 411 (Colo.App. 1995). We also note the ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law. Rather, it is sufficient for the ALJ to make findings concerning the evidence which the ALJ determines is dispositive of the issues, and we may consider findings necessarily implicated by the ALJ’s order. Magnetic Engineering, Inc. v. Industrial Claimed Appeals Office, 5 P.3d 385 (Colo.App. 2000).
The claimant argues that Findings of Fact 4, 9, 19, and 21, demonstrate the claimant sustained a separate cervical injury. Generally, these findings of fact reflect that at various times since the original date of injury the claimant has experienced cervical symptoms or been diagnosed with cervical muscle spasms. However, the ALJ was persuaded the claimant failed to overcome the DIME physician’s opinion that the cause of the claimant’s cervical symptoms was not a separate injury to the cervical region, but pain and muscle spasm associated with the “primary injury” to the shoulder. Thus, there is nothing inherently inconsistent between the ALJ’s recognition of injury-related cervical symptoms and her ultimate conclusion that the claimant failed to overcome the DIME physician’s opinion concerning the cause of the symptoms.
The claimant also relies on a Findings of Fact 14 and 18, which state that after the claimant was placed in MMI in December 1999. Dr. Bainbridge and Dr. Ring diagnosed cervical facet syndrome and treated the claimant with facet injections. However, the weight to be assigned the opinions of these physicians was for the ALJ. In this regard, we note the DIME physician was aware that Dr. Bainbridge diagnosed facet syndrome. (DIME report P. 3). Further the DIME physician examined the cervical spine and found no “spasm, tenderness, or rigidity,” and noted “no midline or cervical or facet tenderness.” (DIME report P. 5). To the extent the claimant suffers from facet syndrome, the ALJ need not have concluded that such condition has any causal relationship to the industrial injury. Indeed, Dr. Ring’s report of August 7, 2002, notes the claimant’s most recent MRI reveals “multilevel degenerative disk changes” and particularly facet arthropathy.” As noted in the DIME physician’s report, the claimant’s MRI from September 2000 and was reported as normal.
Moreover, the ALJ’s finding that “occasional facet blocks” may be reasonable and necessary to treat the claimant’s condition does not require the conclusion that the DIME physician’s opinions were overcome by clear and convincing evidence. Although other inferences were certainly possible, the ALJ was not required to find that merely because the injections provided the claimant some symptomatic relief that the claimant sustained a distinct cervical injury. Rather, the ALJ apparently inferred that, although the injections were made to the cervical facet joints in a part of the body remote from the shoulder the injury they provided relief of symptoms generated by the shoulder injury. The claimant points to no evidence which necessarily rules out such an inference. In any event, because the injection treatments were prospectively awarded as ongoing medical benefits after MMI, the respondents remain free to contest both the cause of and the reasonableness and necessity for future injections. See Hanna v. Print Expediters, ___ P.3d ___ (Colo.App. No. 02CA2237, June 5, 2003).
Insofar as the claimant contests Finding of Fact 13, we perceive no evidentiary basis for the claimant’s contention that the claimant was referred to Dr. Traina as a result of a “stipulation.” However, that finding had no substantial impact on the ALJ’s substantive rulings. Therefore, any error was harmless.
Finally, to the extent the claimant argues the respondents “admitted” a cervical component to the claimant’s injury, there was no error. Whether or not the respondents originally admitted the claimant sustained a cervical component to the injury reported does not determine whether such a component continued to exist on the date of MMI, if such a component did exist whether it required additional treatment to reach MMI, or whether such component caused any permanent medical impairment. These questions were addressed by the DIME physician, and her opinion concerning them was entitled to the special statutory weight assigned by the ALJ. Cordova v. Industrial Claim Appeals Office, supra; Qual-Med v. Industrial Claim Appeals Office, supra.
Insofar as the claimant makes additional arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 10, 2002 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the Petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on August 21, 2003 by A. Hurtado.
Paula Roger, 17054 Wellington Dr., Parker, CO 80134
Sodexho Marriott Services, 7401 Martin Luther King Blvd., Denver, CO 80207
National Union Fire Insurance Company, c/o Carilyn Dankan, Crawford Company, P. O. Box 6502, Englewood, CO 80155-6502
J. J. Fraser, III, Esq., 501 S. Cherry St., #500, Denver, CO 80246-1327 (For Claimant)
Gregory Daniels, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)