W.C. No. 4-380-560Industrial Claim Appeals Office.
November 17, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Rumler (ALJ) which determined the respondents failed to overcome the medical impairment rating of the Division-sponsored independent medical examination (DIME) physician, and therefore, awarded permanent partial disability benefits based on 30 percent whole person impairment. We affirm.
On February 27, 1998, the claimant sustained an admitted right shoulder injury, when a heavy box of bottles he was lifting overhead fell to the floor. Implicitly crediting the claimant’s testimony, the ALJ found that the claimant’s right hand was caught in the box and his right arm was wrenched as he stretched to keep the bottles from hitting the floor. The claimant felt an immediate sharp pain from his shoulder to his neck and down his arm to the elbow. The next day the claimant’s neck was numb, and he had pain around his shoulder blade and elbow. The claimant was also unable to move his right elbow, lift his right arm or move his right shoulder all the way. Within six weeks of the injury the claimant began having trouble walking, his right arm was numb, he was unable to lift any heavy weight, he had balance problems and he lost a sense of feeling to the ride side of his body.
On May 5, 1999, a DIME was performed by Dr. Glatz, who is a neurologist. Dr. Glatz opined that the claimant’s hemisensory deficits were due to the industrial injury. Dr. Glatz also opined the claimant suffered 30 percent whole person impairment rating due to 4 percent loss of cervical range of motion, 6 percent for a specific disorder of the cervical spine, 2 percent loss of thoracic motion, 2 percent for a specific disorder of the thoracic spine, 7 percent impairment of the right upper extremity impairment, and 15 percent impairment of the spinal cord.
The ALJ found that no physician disputed the veracity of the claimant’s symptoms and that the respondents failed to present evidence the claimant’s neurological symptoms predated the industrial injury. The ALJ also found that even though three neurologists hypothesized various explanations for the claimant’s symptomatology, diagnostic tests failed to substantiate any explanation for the claimant’s neurological symptoms other than the industrial injury. Furthermore, the ALJ rejected the respondents’ contention that the absence of a specific diagnosis which would explain all of the claimant’s symptoms compelled a finding that Dr. Glatz erroneously attributed the claimant’s symptomatology and resulting impairment to the industrial injury. To the contrary, the ALJ implicitly credited Dr. Shenoi’s opinion that testing over a long period may be required before the claimant’s condition can be diagnosed. (Shenoi depo. p. 4). Under these circumstances, the ALJ determined the respondents failed to overcome Dr. Glatz’s rating by “clear and convincing evidence” as required by § 8-42-107(8)(c), C.R.S. 2000. Consequently, the ALJ ordered the respondents to pay medical impairment benefits consistent with Dr. Glatz’s rating.
I.
On review, the respondents contend the ALJ abused her discretion in crediting Dr. Glatz’s opinions on the cause of the claimant’s impairment because there is no reasonable medical foundation for Dr. Glatz’s finding of a causal connection between the industrial injury and the claimant’s symptoms. The respondents also contend Dr. Glatz’s rating must be rejected because he erroneously assumed the claimant’s neurological symptoms arose within a week of the industrial event. We disagree.
As argued by the respondents, a medical expert’s opinion must generally be based on “reasonable medical probability.” Ringsby Truck Lines, Inc. v. Industrial Commission, 30 Colo. App. 224, 491 P.2d 106(1971). However, we reject the respondents’ contention that the ALJ was precluded from awarding medical impairment benefits based on Dr. Glatz’s rating because Dr. Glatz could not state within a reasonable degree of medical probability that the industrial injury caused the claimant’s impairment.
Under § 8-42-107(8)(c), the DIME physician’s medical impairment rating is binding unless overcome by “clear and convincing evidence.” Clear and convincing evidence has been defined as evidence which demonstrates that it is “highly probable” the DIME physician’s rating 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). Consequently, to overcome the DIME physician’s medical impairment rating there must be evidence establishing that the DIME physician’s determination is incorrect and this evidence must be unmistakable and free from serious or substantial doubt DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318 (1980).
It is also well established that the determination of the cause of the claimant’s medical impairment is inherent in the DIME physician’s medical impairment rating. Qual- Med, Inc., v. Industrial Claim Appeals Office, supra. Thus, the DIME physician’s opinion on the cause of the impairment is also presumed to be correct unless overcome by clear and convincing evidence to the contrary. Accordingly, the ALJ was required to afford special weight to Dr. Glatz’s finding of a causal relationship between the claimant’s neurological problems and the industrial injury regardless of whether the finding was expressed within a reasonable degree of medical probability. See Qual-Med, Inc., v. Industrial Claim Appeals Office, supra.
The certainty with which the DIME physician expressed his opinions is a relevant consideration in the ALJ’s determination of whether it is highly probable the DIME physician’s rating is incorrect. However, it is the party who disputes the DIME physician’s rating that bears the burden to overcome the DIME’s finding on the cause of the impairment. Consequently, the claimant was not required to present evidence of a “reasonable foundation” for Dr. Glatz’s rating. Rather, to the extent the respondents believed there is no evidentiary foundation for the DIME physician’s rating, they bore the burden of proof.
Because the question of whether the respondents sustained their burden to overcome the DIME physician’s rating is one of fact, we must uphold the ALJ’s factual determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000; Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). We may not reweigh the evidence on review or interfere with the ALJ’s assessment of the probative weight and sufficiency of the various medical opinions. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Furthermore, we may not interfere with the ALJ’s credibility determinations unless the testimony of a particular witness, although direct and unequivocal, is “so overwhelmingly rebutted by hard, certain 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). Under this standard the mere existence of contradictory evidence does not afford a basis to interfere with the ALJ’s credibility determinations. Ackerman v. Hilton’s Mechanical Men, Inc., supra.
Here, the respondents make an extensive attack on Dr. Glatz’s medical impairment rating because Dr. Glatz was unable to give a “firm” diagnosis concerning the claimant’s hemisensory loss. (Glatz depo. pp. 10, 43). In the absence of a firm diagnosis Dr. Glatz was also unable to state within a “reasonable degree of medical probability” that the claimant’s impairment was caused by the industrial injury. (Glatz depo. p. 24).
Dr. Glatz’s testimony is subject to conflicting inferences. He admitted the cause of the hemisensory loss was “uncertain,” and that short of an autopsy there was no way to definitely state the cause of the claimant’s condition. (Glatz depo. pp. 17, 21). Nevertheless, Dr. Glatz stated:
“It was my belief and continues to be my belief, my belief when I did the report, that [the claimant’s sensory loss] was work related. And I still believe that if we had — if we were all knowing and all seeing and all understanding, that I think it would be proven that his sensory loss is work related.”
(Glatz depo. p. 24). Within her sole prerogative the ALJ resolved the conflict by crediting Dr. Glatz’s finding of a causal connection between the claimant’s medical impairment and the industrial injury. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968); El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993) (ALJ may credit part of witness’s testimony). Under these circumstances, the ALJ could plausibly interpret Dr. Glatz’s testimony to mean that although medical science does not understand the precise scientific mechanism behind the development of the claimant’s symptomatology, the information currently available points to the industrial injury as the proximate cause of the resulting permanent impairment.
In so doing the ALJ expressly recognized that Dr Glatz erroneously assumed the claimant’s neurological symptoms arose within a week of the industrial injury. However, the record supports the ALJ’s finding that Dr. Glatz did not change his opinion about the cause of the impairment when presented with evidence that the symptoms arose within 6 week of the injury. In fact, Dr. Glatz testified that a delayed onset of a year or later would have been troublesome but a delayed onset of 6 weeks was not inconsistent with his finding that the symptoms are causally related to the industrial injury. (Glatz depo. pp. 17, 39, 42).
We do not dispute that a temporal relationship between an industrial event and the onset of symptoms does not compel the finding of a causal connection between the symptoms and the industrial event. However, the court of appeals has upheld an award of benefits even where the exact medical cause of the injury remains shrouded in mystery, but the circumstantial evidence as a whole is sufficient to justify the inference that it was work-related. Industrial Commission v. Riley, 165 Colo. 586, 441 P.2d 3 (1968).
Here, the claimant denied any hemisensory problems prior to the industrial injury and was capable of performing the heavy work required of his regular employment up until the industrial injury. Furthermore, Dr. Glatz opined it was unlikely the claimant’s pre-existing degenerative spinal changes were the cause of the onset of neurological problems after the industrial injury. Under these circumstances, and in the absence of any non-industrial explanation for the claimant’s neurological problems, the temporal relationship between the industrial injury and the claimant’s symptomatology is some evidence which supports Dr. Glatz’s finding of a causal relationship between the industrial injury and the claimant’s subsequent impairment.
The ALJ correctly found that the other neurologists who examined the claimant did not dispute the veracity of the claimant’s symptomatology and were unable to render a specific diagnosis to the claimant’s neurological problems. Dr. Theihaft, stated that he was “at a loss to explain [the claimant’s] numbness and sensory disturbance,” and that the claimant’s condition could be explained by a “series of possibilities.” (Theihaft depo. pp. 29, 44). However, he admitted he could not disprove a causal connection between the injury and the claimant’s condition. (Theihaft depo. p. 49). Similarly, in a report dated September 23, 1998, Dr. Gross admitted was unable to explain the claimant’s symptomatology. Further, Dr. Shenoi testified that the claimant’s condition was one of the “most perplexing cases” she had ever seen. (Tr. September 30, 1999, p. 57; Shenoi depo. p. 4). In fact she admitted that patients like the claimant “would expect to see six or more neurologists before a diagnosis is ever reached.” (Shenoi depo. p. 4). Dr. Shenoi also admitted the medical disagreement concerning the work-relatedness of the claimant’s various symptoms reflected a difference of opinions not an error in Dr. Glatz’s rating. (Shenoi depo. p. 32).
Moveover, in determining whether the DIME physician’s rating has been overcome, the ALJ must consider the factual question of whether the DIME physician properly applied the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides). See Metro Moving Storage Co. v. Gussert, supra. Even though Dr. Theihaft disagreed with Dr. Glatz’s finding of a causal connection between all of the impairment and the industrial injury, Dr. Theihaft agreed the claimant had some permanent medical impairment from the industrial injury. Further, Dr. Theihaft did not point out any specific error in the Dr. Glatz’s application of the AMA Guides to the impairment Dr. Glatz attributed to the industrial injury. (Theihaft depo. pp. 20, 33, 60). Under these circumstances, the ALJ reasonably inferred the respondents failed to present “clear and convincing” evidence that Dr. Glatz’s medical impairment rating was incorrect.
II.
The claimant has filed a motion for attorney fees under §8-43-301(14), C.R.S. 2000 on grounds the respondents’ appeal was filed to “harass, cause delay, unnecessarily increase the cost of litigation or otherwise injure the Claimant’s interest in the benefits awarded by the ALJ.” We deny the request for attorney fees.
Section 8-43-301(14) states that attorney fees may be awarded against an attorney who submits a petition to review or brief in support of a petition “which is not well grounded in fact and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” Although we do not agree with the respondents’ arguments, we do not consider the petition to review and appellate brief to be so lacking in merit that they it may be classified as not well grounded in fact or law. Therefore, we decline to award attorney fees. See BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997); Brandon v. Sterling Colorado Beef Co., 827 P.2d 559 (Colo.App. 1991) (resort to judicial review is not considered frivolous or in bad faith as long as there is a reasonable basis for party to challenge the ALJ’s order).
IT IS THEREFORE ORDERED that the ALJ’s order dated February 17, 2000, is affirmed.
IT IF FURTHER ORDERED that the claimant’s motion for attorney fees is denied.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
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, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. 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 decision were mailed November 17, 2000 to the following parties:
David R. Shultz, 8204 N. Sheridan, Apt. 2508, Arvada, CO 80003
Sue Kellogg, Anheuser Busch Inc., Denver Wholesale Operation, 1455 E. 62nd Ave., Denver, CO 80216
Insurance Company of the State of Pennsylvania/AIG Insurance, Tina Gustafson, P. O. Box 32130, Phoenix, AZ 85064
Chris L. Ingold, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For Claimant)
Fred Ritsema, Esq. and Sarah Knoell, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)
BY: A. Pendroy