W.C. No. 4-477-089.Industrial Claim Appeals Office.
December 30, 2005.
FINAL ORDER
The claimant seeks review of an order dated July 1, 2005 of Administrative Law Judge Mattoon (ALJ) that denied the claim for permanent total disability benefits and found the respondents had overcome the opinion of the Division-sponsored independent medical examination (DIME) physician’s opinions on the issues of right wrist permanent impairment and the work-relatedness of the cervical condition. We affirm.
The claimant sustained a compensable industrial injury on September 26, 2000, while employed as a truck driver. He opened the back door of the trailer and boxes of bananas fell out which he tried to stop with his right hand. He then fell onto his right hand.
The claimant testified that the bananas fell onto his head and shoulder and that he felt immediate pain in his right shoulder, elbow, and cervical area. The ALJ found that this testimony is directly contradicted by medical records, the first report of injury, and is not credible. The claimant was found by the ALJ not be to a reliable historian of the mechanism of his injury.
The claimant was referred to Dr. Hawke who examined him on September 27, 2000, and assessed a right wrist injury. Dr. Hawke took no history of problems in upper arm, shoulder, neck or upper back. One month after the industrial accident, the claimant went to the emergency room complaining of worsening right shoulder pain.
Dr. Hawk concluded that the right shoulder condition was not work-related. The claimant was seen by Dr. Tirre who stated that there was no reason that the claimant should be in an arm sling or that he should have shoulder pain from the wrist injury.
Dr. Hanson took over the claimant’s care. Dr. Hanson agreed that the right shoulder condition was not related to the industrial accident. Dr. Hanson released the claimant at maximum medical improvement (MMI) and the claimant requested a DIME. The claimant was seen on October 23, 2001, by the DIME physician who determined that the claimant was not at MMI. The claimant received further medical treatment. At the time of the DIME evaluation the claimant’s cervical spine was not addressed in any significant way.
The claimant’s care was undertaken by Dr. Gellrick who noted no atrophy of the right arm and told the claimant that he needed to use his right arm. Dr. Gellrick referred the claimant to Dr. Lindberg who noted that an MRI revealed no rotator cuff tear in the right shoulder and did not recommend surgery, due to symptom magnification, pain behaviors and other issues.
Dr. Conyers, a hand specialist, was unable to examine the claimant because the claimant was holding his arm, fingers and wrist stiffly against himself and refused to move it. Dr. Conyers noted that the right arm had good muscle bulk. Dr. Aylor saw the claimant on January 31, 2003, and gave the opinion that no further conservative care was indicated as none of the treatments tried so far had improved the complaints of pain and that the only remaining consideration was surgical intervention.
The claimant saw Dr. Stahl for a surgical evaluation. Dr. Stahl suspected frozen shoulder or adhesive capsulitis. However, when Dr. Stahl placed the claimant under general anaesthesia, his right shoulder was found to have full, normal and smooth range of motion. In light of these findings Dr. Stahl did not perform the surgery. The postoperative diagnosis was no frozen shoulder.
The claimant was seen by Dr. Aylor a number of times in 2003 with variety of complaints. Dr. Aylor placed the claimant at MMI on January 9, 2004, and assigned the claimant no permanent impairment rating for loss of range of motion of the right shoulder, as the shoulder had exhibited full range of motion under general anesthesia. He further assigned no other impairment rating for the right shoulder because no specific pathology had been identified.
Dr. Aylor assigned no permanent impairment rating for the thoracic spine, as he felt the range of motion testing results were not valid or appropriate. No specific disorder was assigned, as no range of motion could be assigned. Dr. Aylor assigned a rating for the right wrist, even though he felt the claimant was able to move the right wrist more than he had demonstrated he gave the claimant the benefit of the doubt and assigned a 19% right upper extremity permanent impairment rating.
The DIME physician performed a follow-up DIME on April 7, 2004 and agreed with the MMI date of January 9, 2004. The DIME physician assigned a 21 percent cervical whole person permanent impairment rating and 32 percent right upper extremity permanent impairment rating which converts to a 19% whole person permanent impairment rating. The upper extremity rating combines with the cervical rating to equal a 36 percent whole person permanent impairment rating. The DIME physician recommended that the claimant not use his right arm at all.
The ALJ found that Dr. Primack testified convincingly that the claimant’s physical presentation could not be medically explained. Dr. Primack gave the opinion that the claimant suffered no cervical injury in the industrial accident. Dr. Primack testified that the DIME physician’s range of motion tests on the wrist in her first evaluation were similar to those he obtained, but the follow-up testing results were very different. Dr. Primack testified that the second range of motion test by the DIME physician were very unusual including even a negative range of motion. Dr. Primack assigned a 14% scheduled permanent impairment rating and strongly recommended that the claimant use the right arm as much as possible.
The ALJ found Dr. Primack’s opinion to be very persuasive. The ALJ noted that the range of motion testing results obtained by the DIME physician are significantly different from those obtained by Dr. Primack, Dr. Aylor and even by the DIME physician on her first examination of the claimant. The ALJ found it highly probable that the DIME physician was incorrect in her opinion on the right upper extremity permanent impairment rating. The ALJ accepted the opinion of Dr. Primack.
The ALJ found Dr. Primack’s opinion regarding the lack of relatedness of the claimant’s cervical condition to the industrial injury to be persuasive. The ALJ noted that the issue of neck pain did not arise until long after the industrial injury and that the DIME physician did not conclude that any neck injury occurred in the first DIME. The ALJ found that Dr. Aylor supported Dr. Primack’s opinion.
The ALJ found the respondents had demonstrated by clear and convincing evidence that the DIME physician’s opinion was highly probably incorrect on the relatedness of the cervical spine condition. The cervical spine complaints were not temporally related to the industrial injury and the claimant was not a reliable historian of his symptoms or the mechanism of his injury. Objective testing did not reveal anything correlated with the pain complaints. The ALJ found that respondents had proven by clear and convincing evidence that the claimant’s cervical condition was not related to the industrial injury.
On the issue of permanent total disability the ALJ found the opinion of vocational evaluator Bartman persuasive as she actually looked at jobs the claimant would be able to perform. Ms. Bartman felt the claimant was capable of working in light unskilled and semiskilled work. The ALJ found rehabilitation counselor Woodard not persuasive as her opinion appeared to be significantly based on the assumption that almost all unskilled or semiskilled jobs require the use of both arms. The ALJ found that this assumption was persuasively refuted by Ms. Bartman. The ALJ found that the claimants is capable of earning wages using one arm and further that claimant is capable of using his right arm and is therefore very employable.
The petition to review contains some general allegations of error, derived from § 8-43-301(8), C.R.S. 2005. Moreover, the claimant has not filed a brief in support of his petition to review and therefore, the effectiveness of our review is severely limited. Ortiz v. Industrial Commission, 734 P.2d 642
(Colo.App. 1986).
Specifically the claimant in his petition to review asserts that the ALJ erred in concluding that his cervical condition is not related to the industrial injury because Dr. Aylor treated him for such cervical injury and respondent’s admitted for such a cervical injury. As the ALJ pointed out Dr. Aylor on November 14, 2003 stated he could not explain any of the claimant’s complaints of back pain, which now extended through the whole back. There is ample evidence to support the ALJ’s determination.
The claimant argues that Dr. Primack admitted he never conducted DIME, which is true (Tr. at 121), but Dr. Primack is also on the teaching faculty of the medical treatment guidelines (Tr. at 122). The weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). We perceive no basis on which to interfere with the ALJ’s finding.
The claimant asserts the ALJ erred by restricting the claimant’s vocational expert’s testimony as to respondents vocational expert’s “follow-up search.” The ALJ did sustain an objection to Ms. Woodard’s attempted testimony on labor market research done on the day before the hearing based on failure to comply with discovery request and Rule of Procedure VIII, 7 Code Colo. Reg. 1101-3. (Tr. at 25-30). The ALJ has broad discretionary authority in the conduct of hearings and ALJ’s rulings will not be disturbed unless an abuse is shown. See Renaissance Salon v. Industrial Claim Appeals Office, 994 P.2d 447 (Colo.App. 1999; hearings and ALJ’s rulings will not be disturbed unless an abuse is shown); IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). We perceive no abuse of the ALJ authority.
The medical impairment rating of the DIME physician is binding on the parties and the ALJ unless overcome by clear and convincing evidence. § 8-42-107(8)(c), C.R.S. 2005. Clear and convincing evidence is evidence demonstrating that it is “highly probable” that the DIME physician’s rating is incorrect American Compensation Insurance Co. v. McBride, 107 P.3d 973, 980 (Colo.App. 2004). Such evidence must be unmistakable and free from serious or substantial doubt. Leming v. Industrial Claim Appeals Office, 62 P.3d 1150 (Colo.App. 2002).
The question of whether the DIME physician’s rating has been overcome by “clear and convincing evidence” is a matter of fact for determination by the ALJ. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Because these issues are factual in nature, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2005. This standard of review requires us to view the evidence in the light most favorable to the prevailing party, and to defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). The court of appeals has noted that in this context the scope of our review is “exceedingly narrow.”Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415
(Colo.App. 1995).
There is ample support in the record to find the DIME physician’s rating was overcome by clear and convincing evidence. We perceive no error in the ALJ’s order on permanent impairment.
The courts have held that the DIME physician’s determination that an impairment is or is not caused by the industrial injury is subject to the clear and convincing evidence standard. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186
(Colo.App. 2002): Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998). Whether the respondents presented clear and convincing evidence to overcome the DIME physician’s opinion is a question of fact for resolution by the ALJ Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995) Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Accordingly, we must uphold the ALJ factual determinations if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2005 Postlewait v. Midwest Barricade, supra.
The claimant’s arguments notwithstanding, the ALJ findings are supported by substantial evidence in the claimant’s testimony, the testimony and reports of Dr. Hawke, Dr. Aylor reports, Dr. Primack’s report and testimony. Furthermore, we may not reweigh the evidence on review. See General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). Consequently, the existence conflicting testimony or evidence that would support a contrary result does not provide a basis for setting aside the order. See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo.App. 1999).
Section 8-40-201(16.5)(a), C.R.S. 2005, defines permanent total disability (PTD) as the claimant’s inability “to earn any wages in the same or other employment.” Under the statute, the claimant carries the burden of proof to establish permanent total disability. In determining whether the claimant has sustained his burden of proof, the ALJ may consider a number of “human factors.” Christie v. Coors Transportation Co., 933 P.2d 1330
(Colo. 1997). These factors include the claimant’s physical condition, mental ability, age, employment history, education and the “availability of work” the claimant can perform. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). The overall objective of this standard is to determine whether, in view of all of these factors, employment is “reasonably available to the claimant under his or her particular circumstances.” Weld County School District RE-12 v. Bymer, 955 P.2d at 558.
Because the issue of PTD is factual, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. §8-43-301(8), C.R.S. 2005. This standard of review requires that we consider the evidence in the 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. Bymer v. Weld County School District RE-12, supra; Wilson v. Industrial Claim Appeals Office, supra. The existence of other evidence, such as the opinions of the claimant’s vocational expert which, if credited, might support a contrary determination does not afford us grounds to grant appellate relief. Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d 28
(1963). The ALJ is not required to cite every piece of evidence before crediting evidence to the contrary. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970). Rather evidence not cited is implicitly rejected as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). To the extent that a witness’s testimony was inconsistent the ALJ was free to rely on those portions she found persuasive and to reject other portions. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
The ALJ’s factual determinations are supported by substantial evidence in the vocational and medical expert testimony she found persuasive, and the findings support the conclusion that the claimant is not permanently totally disabled. The ALJ’s dispositive factual findings were those rejecting the testimony of the claimant’s expert as less credible than that of the respondents’ expert and determining that there were jobs reasonably available to the claimant within her labor market. The respondents’ expert, Cynthia Bartman, testified as an expert in the field of vocational evaluations. Tr. (May 23, 2005) at 35. Her testimony included a description of her experience and an explanation of the methods she uses when retained to perform a vocational evaluation, including identifying transferrable skills and a commutable labor market. Tr. (May 23, 2005) at 31-35. Further, she identified specific positions that she believed the claimant could fill, and testified to that opinion at some length. Tr. (May 23, 2005) at 42-45. The expert also opined that generally there are vocational opportunities for the claimant in the Denver labor market. Tr. (May 23, 2005) at 37. Because the expert’s testimony and her report constitute substantial evidence supporting the ALJ’s factual finding that the claimant is able to earn wages, the claimant has failed to establish grounds on which to disturb the ALJ’s order denying PTD benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 1, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Thomas Schrant
____________________________________ Robert M. Socolofsky
Steve Szloboda, Denver, CO, Excel Personnel, Inc., Parker, CO, Legal Department, Pinnacol Assurance-Interagency Mail Douglas P. Ruegsegger, Esq. and Michele Stark Carey, Esq., Denver, CO (For Respondents).