W.C. Nos. 4-484-220; 4-562-155.Industrial Claim Appeals Office.
October 14, 2005.
FINAL ORDER
The respondents in these workers compensation claims seek review of orders of Administrative Law Judge Gartland (ALJ Gartland) and Administrative Law Judge Friend (ALJ Friend). We affirm the orders.
The claimant was injured in a compensable accident on November 13, 2000 while employed by Four Corners Health Care (FC). That injury is the subject of W.C. No. 4-484-220. The claimant was injured in a second compensable accident on August 21, 2002 while employed by Mariner Health Care, Inc. d/b/a/ Convalescent Services (CS), which is the subject of W.C. claim 4-562-155. Ultimately, the claimant underwent two separate Division-sponsored independent medical examinations (DIME). The parties challenged the findings of the DIME physicians.
In an order dated December 17, 2002, ALJ Gartland found the claimant overcame the Division-sponsored independent medical examination (DIME) physician’s finding that the claimant’s cervical condition was unrelated to the 2000 injury and that the claimant had reached maximum medical improvement (MMI). However, the order of ALJ Gartland did not award or deny any specific benefits. Therefore, we dismissed, without prejudice, the appeal by FC and its insurer, American Home Assurance Co. (collectively the American respondents).
On June 3, 2005 ALJ Friend determined SC and its insurer, Pacific Employers Insurance Company (collectively the Pacific respondents) failed to overcome the opinions of the DIME physician in the 2002 injury claim. ALJ Friend also ordered the Pacific respondents to pay temporary disability and medical benefits.
The American respondents renew their challenge to ALJ Gartland’s order which is now final. Specifically, the American respondents contest ALJ Gartland’s finding that the claimant overcame the DIME physician’s finding of MMI, and the DIME physician’s opinion that the claimant’s cervical and left upper extremity conditions were not caused by the November 13, 2000 injury.
The Pacific respondents seek review of ALJ Friend’s finding that they failed to overcome the DIME physician’s finding that the claimant’s low back symptoms were the result of the 2002 compensable accident.
I.
The following facts are pertinent to the American respondents’ petition to review ALJ Gartland’s order in the 2000 injury claim. The DIME physician, Dr. Winkler determined the claimant reached MMI for an admitted thoracic condition and provided an impairment rating for this condition. Dr. Winkler also found the claimant’s cervical and left upper extremity conditions were not caused by the industrial injury, and therefore, did not reach the question of whether the claimant was at MMI for these conditions.
Initially, we reject the American respondents’ contention that the findings of ALJ Gartland are not sufficient to permit appellate review. The ALJ need only make findings on the evidence deemed persuasive and determinative. See Riddle v. Ampex Corp., 839 P.2d 489
(Colo.App. 1992). 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 concerning the evidence the American respondents rely upon does not compel a finding the ALJ failed to consider the evidence.
We have no difficulty ascertaining the basis of ALJ Gartland’s order. Consequently, it is unnecessary to remand the matter for additional findings. See Boice v. Industrial Claim Appeals Office, 800 P.2d 1339
(Colo.App. 1990).
ALJ Gartland found that Dr. Winkler’s opinion on the cause of the cervical and left upper extremity conditions was based upon an incomplete understanding of the claimant’s medical history. ALJ Gartland also found Dr. Winkler was under the impression that the claimant’s left upper extremity symptoms were not present in the few months following her injury but this impression was contrary to clear evidence in the medical reports and claimant’s testimony. Further, ALJ Gartland found Dr. Winkler did not have Dr. Williams’ reports available to him concerning the onset of left upper extremity and cervical complaints.
In contrast, ALJ Gartland credited the medical reports of the treating providers, claimant’s testimony and Dr. Stein’s testimony to find the claimant established that the cervical and left upper-extremity symptoms arose after the 2000 and were related to it. Based upon these findings ALJ Gartland determined it was highly probable Dr. Winkler’s opinion regarding causation was incorrect.
Moreover, ALJ Gartland found that as a result of Dr. Winkler’s erroneously determination on causation, Dr. Winkler did not address the question of whether claimant reached MMI for all compensable components of the industrial injury. Under these circumstances, ALJ Gartland found the claimant overcame Dr. Winkler’s finding of MMI.
The American respondents contend that ALJ Gartland’s order is not supported by substantial evidence in the record and should therefore be overturned. We perceive no reversible error.
The American respondents correctly contend the ALJ erred in Finding of Fact 4 which makes reference to “lower extremities” when the records of Dr. Lunnon actually refer to problems with the upper extremities. However, Finding of Fact 5 demonstrates the ALJ Gartland clearly understood and had read Dr. Lunnon’s reports as referring to problems with the claimant’s upper extremities. Therefore, the error in Finding 4 is harmless and will be disregarded. A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988)
Other factual errors such the location of the claimant’s initial medical treatment or the name of a referring physician do not go to the substance of whether Dr. Winkler erroneously failed to attribute the claimant’s cervical and upper extremity to the industrial injury. Therefore, the errors do not afford us grounds to grant appellate relief. See § 8-43-310
C.R.S. 2005; A R Concrete Construction v. Lightner, supra.
Next, 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 claimant 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 Gartland’s 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 American respondents’ arguments notwithstanding, ALJ Gartland’s findings are supported by substantial evidence in the claimant’s testimony, the testimony and reports of Dr. Stien, Dr. Silva’s reports and Dr. Willner’s report. 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).
We note the American respondents reliance on our conclusions in Garlets v. Memorial Hospital, W.C. 4-336-566
(September 5, 2001) in support of their contention that the ALJ failed to determine whether the medical opinions offered to overcome the DIME physician’s’s rating or the DIME physician’s rating itself were consistent with th American Medical Association Guide to the Evaluation of Permanent Impairment (AMA Guides). However, in Garlets
the litigation concerned a medical impairment rating not the issue of MMI or causation. Therefore, Garlets is not instructive in resolving the present issue.
The American respondents also argue ALJ Gartland failed to resolve conflicts of evidence in the record. Specifically, in Finding of Fact 29 ALJ Gartland determined the claimant had no prior problems with her neck, but the American respondents point out the claimant’s testimony that she underwent a prior MRI of the cervical spine.
The claimant testified that the MRI was for headaches and problems with sight (Tr. p. 94). The ALJ could reasonably infer from this testimony that the prior MRI was not necessitated by any neck injury. See Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Thus, the findings reflect that ALJ Gartland resolved the conflict in favor of the claimant.
We also reject the American respondents’ contention that ALJ Gartland’s order is not supported by applicable law. It is now well established that MMI is not divisible and cannot be parceled out among the various components of a multi-faceted industrial injury. City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997). It follows that ALJ Gartland properly found the claimant was not at MMI where Dr. Winkler did not place the claimant at MMI for the cervical or upper extremity injuries. Consequently, we perceive no basis to disturb ALJ Gartland’s order.
II.
Concerning the 2002 injury claim Dr. Leimbach, the DIME physician, expressed the opinion that in addition to the right upper extremity injury the claimant had suffered a low back injury in the 2002 accident and that claimant was not at MMI. Dr. Leimbach then recommended treatment for the claimant’s low back complaints and right upper extremity condition.
ALJ Friend found the contrary medical opinions submitted by the Pacific respondents did not rise to the level of “clear and convincing evidence” that Dr. Leimbach was incorrect in his determination of the cause of the claimant’s low back condition. Therefore, ALJ Friend held the Pacific respondents liable for medical treatment for the claimant’s low back condition and ongoing temporary disability benefits.
On review of ALJ Friend’s order, the Pacific respondents contend the ALJ applied an incorrect legal standard in determining the compensability of claimant’s’s low back injury. The Pacific respondents argue that the claimant should have been required to prove by a preponderance of credible evidence that she injured/aggravated her low back as a direct and proximate result of the 2002 injury. We disagree.
The determination of a claimant’s permanent impairment under the AMA Guides inherently requires the rating physician, when diagnosing the claimant’s condition, to evaluate and identify all losses caused by the industrial injury. Qual-Med, Inc., v. Industrial Claim Appeals Office, supra. Consequently, the DIME physician’s opinion that a particular impairment was or was not caused by the industrial injury is binding unless overcome by clear and convincing evidence and resolution of this issue is one of fact for the ALJ. Mosley v. Industrial Claim Appeals Office, 78 P.3d 1150
(Colo.App. 2003); Qual-Med, Inc. v. Industrial Claim Appeals Office, supra.
Because these issues are factual in nature, we must uphold the ALJ’s findings if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2005. This standard of review requires that we defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Further, we must also view the evidence in a light most favorable to the prevailing party, and the mere possibility that some evidence could support a different result affords no basis for appellate relief Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117
(Colo.App. 2003).
Dr. Williams opined in his December 13, 2004 report that the most likely cause of claimant’s low back condition was the August 21, 2002 accident. This evidence amply supports ALJ Friend’s finding that the respondents failed to overcome Dr. Leimbach’s opinion on causation by clear and convincing evidence and the mere fact the record contains some evidence which, if credited, would support a contrary conclusion does not permit us to set aside an ALJ’s order. Wilson v. Industrial Claim Appeals Office, supra.
In any case, the Pacific respondents contend the claimant failed to prove the low back injury required health care or caused a wage loss. Again, we disagree.
Dr. Leimbach’s opinions amply support ALJ Friend’s finding that the claimant requires additional treatment for a compensable low back injury. Further, the Pacific respondents admitted liability for temporary total disability benefits commencing May 19, 2003 and terminating April 5, 2004 based on a finding of MMI. Therefore, the Pacific respondents inherently admitted the 2002 industrial injury caused a wage loss between these dates. Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996); cf. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997).
Because ALJ Friend upheld Dr. Leimbach’s finding that the claimant was not at MMI, ALJ Friend correctly determined the respondents failed to prove the claimant’s wage loss was no longer caused by the 2002 injury. Therefore, the award of additional medical and temporary disability benefits was not in error.
We have considered the CS respondents remaining arguments and find them to be without merit.
IT IS THEREFORE ORDERED that ALJ Gartland’s order dated December 17, 2002, and ALJ Friend’s order dated June 3, 2005, are affirmed
INDUSTRIAL CLAIM APPEALS PANEL
Frances Thomas, Farmington, NM, Durango, CO, American Home Assurance Co., c/o Dawn Chambers, AIG Claim Services, Phoenix, AZ, Robert C. Dawes, Esq., Durango, CO, (For Claimant).
Matthew C. Hailey, Esq., Denver, CO, (For Respondents).
Richard A. Bovarnick, Esq., Denver, CO, (For Mariner Health Care, Inc. and Pacific Employers Insurance).