W.C. No. 4-278-458Industrial Claim Appeals Office.
January 19, 2000
[1] FINAL ORDER
[2] The respondent seeks review of an order of former Administrative Law Judge (ALJ) Gandy which determined the claimant is not at maximum medical improvement (MMI) and awarded additional temporary disability and medical benefits. We affirm.
[3] On October 16, 1995, the claimant suffered a work-related back injury. As a result, the claimant experienced back pain, bladder control problems, sexual dysfunction, numbness and depression. The claimant subsequently underwent a lumbar disectomy and received urological treatment. On June 9, 1997, the treating physician, Dr. Belleville placed the claimant at MMI and released her to return to regular employment. However, he also referred the claimant for a psychological evaluation and acknowledged that the claimant may need counseling and further urology treatment.
[4] The claimant testified that her upon her return to regular employment, her condition progressively worsened. In February 1998, the claimant returned to Dr. Belleville with complaints of increasing right low back pain, right heel pain and left heel numbness. Dr. Belleville recommended an MRI and imposed work restrictions. However, Dr. Belleville did not retract his determination of MMI. The claimant performed modified employment until May 20, 1998.
[5] Because she disputed Dr. Belleville’s finding of MMI, the claimant underwent a Division-sponsored independent medical examination (IME) under the provisions of § 8-42-107(8)(b), C.R.S. 1999. Under that statute the IME physician’s determination of MMI is binding unless overcome by “clear and convincing evidence.” In a report dated February 20, 1998, the IME physician opined that the records “do not reflect adequate workup or adequate treatment of” the claimant’s work-related injuries. The IME physician further opined that “more intensive testing is indicated to determine the severity and to predict the expected longevity of the complications [the claimant] is experiencing.” Therefore, the IME physician opined that the claimant is not at MMI, and recommended a “full and complete workup” by the Departments of Urology and Neurosurgery at the University Health Sciences Center to “determine fully and impartially the true nature of [the claimant’s] injuries and the best course of treatment available to her to provide the best possible outcome for her.”
[6] The claimant subsequently requested additional medical benefits and temporary total disabilities retroactive to May 20, 1998. At the hearing before the ALJ, the respondent sought to overcome Dr. Neal’s opinions by “clear and convincing evidence.” In support, the respondent presented the testimony of Dr. Belleville. Dr. Belleville opined that Dr. Neal did not have the claimant’s complete medical record at the time he performed the IME and that if Dr. Neal had reviewed the MRI results and the urological treatment records, it is “entirely possible” he would not have recommended additional treatment.
[7] The ALJ credited the opinions of Dr. Neal and rejected the contrary opinions of Dr. Belleville. Therefore, the ALJ determined the respondent failed to overcome by “clear and convincing evidence” Dr. Neal’s opinion that the claimant is not at MMI. Furthermore, the ALJ found that as a result of the industrial injury, the claimant has been physically unable to return to work since May 20, 1998, and that the treatment recommended by Dr. Neal is reasonable and necessary. Therefore, the ALJ ordered the respondent to reinstate temporary total disability benefits effective May 20, 1998, and provide additional medical benefits consistent with Dr. Neal’s recommendations.
[8] On review, the respondent do not dispute that they were required to overcome Dr. Neal’s MMI determination by “clear and convincing evidence.” However, they argue that the evidence compels a finding that Dr. Neal would have agreed with Dr. Belleville’s finding of MMI if he had been aware of the extensive urological treatment the claimant received and the MRI results which revealed no new ruptured disc, and no extensive scar tissue. We are not persuaded.
[9] “Clear and convincing evidence” is evidence which demonstrates that it is “highly probable” the IME physician’s rating is incorrect. Page v. Clark, 197 Colo. 306, 592 P.2d 792
(1979); Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995). Put another way, to overcome the IME physician’s opinion on MMI there must be evidence which is unmistakable and free from serious or substantial doubt that the IME physician’s determination is incorrect. DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318 (1980).
[10] The question of whether the respondent sustained its burden to overcome the IME physician’s opinions is one of fact for the ALJ. Askew v. Sears Roebuck Co., 927 P.2d 1333 (Colo. 1996). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 199 ; Metro Moving Storage Co. v. Gussert, supra. Under this standard we must defer to the ALJ’s credibility determinations, his resolution of conflicts in the evidence and plausible inferences drawn from the record.
[11] Initially, we reject the respondent’s contention that the ALJ failed to resolve conflicts in the evidence concerning whether Dr. Neal’s opinions were based on an incomplete set of medical records. The ALJ determined that it was immaterial whether Dr. Neal reviewed a complete set of medical records because the respondent failed to present credible evidence that Dr. Neal’s opinion would have been substantially different if he had reviewed the complete record. (Finding of Fact 25). In so doing, the ALJ was not persuaded by Dr. Belleville’s opinions because Dr. Belleville expressed his opinions in terms of a “possibility” not a “probability” that Dr. Neal’s opinions would have been substantially different. (See Tr. p. 61). Furthermore, the ALJ’s determination is a plausible inference from the evidence that, despite the treatment, the claimant’s physical and mental condition continued to deteriorate.
[12] However, the respondent contends the ALJ erred in rejecting Dr. Belleville’s opinions on the sole ground that Dr. Belleville served as the respondent’s “advisory expert” while also serving as the primary treating physician. Relying on our conclusions i Quintana v. Battle Mountain Gold, W.C. No. 4-179-628 (November 30, 1998), the respondent argues that this evidence is insufficient to demonstrate bias. Further, they argue that the ALJ’s ruling undermines the deference afforded the treating physician’s opinions under the Workers’ Compensation Act (Act). We disagree.
[13] Under the statute currently codified at § 8-42-105(3), C.R.S. 1999, the ALJ is required to defer to the treating physician’s opinion of the claimant’s ability to perform regular or modified employment. Burns v. Robinson Dairy, Inc., 911 P.2d 661
(Colo.App. 1995). However, the ALJ is not required to afford the treating physician’s opinion of MMI any special weight where the claimant has undergone a Division-sponsored IME. Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995. To the contrary, the IME physician’s opinion is afforded an initial presumption of validity because it is presumed to be more independent and unbiased than the opinions of the treating physician. See Colorado AFL-CIO v. Donlon, 914 P.2d 396, 402(Colo.App. 1995).
[14] Furthermore, the respondent’s reliance on Quintana v. Battle Mountain Gold, supra, is misplaced. In Quintana, an ALJ credited the testimony of Dr. Roth in support of a finding that the respondent overcame an IME physician’s opinion that the claimant was not at MMI. On appeal the claimant argued that Dr. Roth was biased in favor of the insurance industry and, thus not credible. We concluded that the ALJ was free to consider evidence of an expert witness’ bias in evaluating the credibility and probative weight of his opinions. However, we held that evidence Dr. Roth examined the claimant at the respondent’s request was insufficient to establish bias as a matter of law. We also concluded that because the record did not contain other evidence which would support a finding of bias, the ALJ was not precluded from crediting Dr. Roth’s opinions.
[15] Here, the respondent designated Dr. Belleville as their “expert advisory witness” at the hearing, even though Dr. Belleville was also the primary treating physician. (Tr. p. 12). Under these circumstances, the record contains evidence from which the ALJ reasonably inferred that Dr. Belleville’s opinions were not be as objective as the opinions of the IME physician.
[16] In any case, the ALJ did not reject Dr. Belleville’s opinions solely on grounds that he was the respondent’s advisory witness. The ALJ also found that Dr. Belleville’s opinion the claimant has remained at MMI was inconsistent with the documented worsening of the claimant’s condition and Dr. Belleville’s imposition of new restrictions. (See Conclusions of Law).
[17] IT IS THEREFORE ORDERED that the ALJ’s order dated August 2, 1999, is affirmed.
[18] INDUSTRIAL CLAIM APPEALS PANEL
[19] ___________________________________ David Cain
[20] ___________________________________ Kathy E. Dean
NOTICE
[21] 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1999.
[22] Copies of this decision were mailed January 19, 2000 to the following parties:
[23] Kristi L. Smiley, 2019 Newcastle Court, Ft. Collins, CO 80526
[24] Yvonne Chudd, Poudre Valley Hospital, 1024 S. Lemay Ave., Ft. Collins, CO 80524-3998
[25] Denise Groves, Support Services, Inc., P.O. Box 3513, Englewood, CO 80155-3513
[26] Jeff Francis, Esq., 940 Wadsworth Blvd., 4th floor, Lakewood, CO 80215 (For Claimant)
[27] Anne Smith Myers, Esq. and Karen R. Wells, Esq., 3900 E. Mexico, #1000, Denver, CO 80210 (For Respondent)
[28] BY: L. Epperson