W.C. Nos. 4-400-281, 4-410-547, 4-410-548, 4-410-551Industrial Claim Appeals Office.
February 1, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) awarding temporary disability benefits. The respondents contend they overcame by clear and convincing evidence the Division-sponsored independent medical examination (DIME) physician’s opinion that the claimant was not at maximum medical improvement (MMI) on April 17, 1998. We affirm.
The ALJ found the claimant sustained a compensable injury to his left upper extremity on November 17, 1997. Subsequently, the claimant was diagnosed with and treated for a “swan neck” deformity of the digits of his left hand. On April 17, 1998, one of the claimant’s treating physicians, Dr. Heyman, stated surgery was not indicated and placed the claimant at MMI.
The claimant subsequently underwent a DIME on the issue of MMI. In a report dated August 11, 1999, the DIME physician observed the claimant was suffering from a swan neck deformity of two fingers of the left hand, and that the little finger was “frozen.” The DIME physician also observed swelling, discoloration, temperature changes, and reduced reflexes in the left upper extremity. The DIME physician opined the swan neck deformity was related to the industrial injury because the claimant denied a history of congenital deformity, and because the examining physician did not record the deformity on the date of the injury. The DIME physician also stated the claimant’s other physical findings were “quite severe” and suggestive of injury to the left brachial plexus or reflex sympathetic dystrophy. Consequently, the DIME physician opined the claimant had not received an adequate “diagnostic work up” and recommended the claimant be referred to a neurosurgeon “for treatment as well as further evaluation.”
The ALJ found the respondents failed to overcome the DIME physician’s opinion concerning MMI by clear and convincing evidence. Although the ALJ recognized the respondents presented expert opinion which conflicted with that of the DIME physician, he found the opinions of the respondents’ experts to be confusing and insufficient to overcome the DIME physician’s opinion.
On review, the respondents contend the claimant has developed a number of symptoms, including left-sided neck and shoulder pain, which cannot be causally related to the November 17, 1997 industrial injury. Relying on the reports of several medical experts, the respondents assert the DIME physician did not “properly assess the correct body parts related to the” industrial injury, and that there is no “objective evidence” to support the DIME physician’s opinion that the claimant’s “constellation of symptoms” is related to the industrial injury. We are not persuaded.
Temporary disability benefits cease when the claimant reaches MMI. Section 8-42-105(3)(a), C.R.S. 2000. MMI exists when “any medically determinable physical or mental impairment as a result of injury has become stable and when no further treatment is reasonably expected to improve the condition.” Section 8-40-201(11.5), C.R.S. 2000. In this regard, we have previously held that reasonable and necessary diagnostic procedures are a prerequisite to MMI if they have a prospect “of defining a claimant’s condition and suggesting further treatment.” Hatch v. John H. Harland Co., W.C. No. 4-368-712 (August 11, 2000); cf. Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949). Thus, MMI is largely a medical determination heavily dependent on the opinions of medical experts. See Monfort Transportation v. Industrial Claim Appeals Office, 942 P.2d 1358 (Colo.App. 1997). Under the current statutory scheme, a DIME physician’s opinion concerning the existence or nonexistence of MMI is binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(b)(III), C.R.S. 2000.
The question of whether the DIME physician’s opinion concerning MMI has been overcome is one of fact for determination by the ALJ. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000). Consequently, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the DIME physician unmistakably opined that the swan deformity was caused by the claimant’s industrial injury. The DIME physician based this conclusion on the temporal relationship between the development of the deformity and the industrial injury. Although the respondents presented conflicting evidence, the ALJ was not persuaded by such evidence, and we may not interfere with his judgment concerning the weight and credibility of expert medical opinion.
The DIME physician also observed other upper extremity symptoms which, in his opinion, warranted additional diagnostic consideration so as to rule out a brachial plexus injury or sympathetic reflex dystrophy resulting from the industrial injury. The respondents’ assertion notwithstanding, some of these symptoms, including swelling and decreased reflexes, may be classified as objective symptoms. Moreover, even if it is ultimately determined that some or most of the claimant’s current symptoms are not caused by the industrial injury, such a determination would not nullify the DIME physician’s opinion that, in August 1998, the claimant had not reached MMI. This is true because the DIME physician decided that an additional referral was necessary to determine the full range of pathology resulting from the industrial injury, and to prescribe treatment if necessary. This recommendation was fully consistent with the DIME’s conclusion that the claimant had not reached MMI. Hatch v. John H. Harland Co., supra.
Insofar as the respondents assert there is no evidence which supports the DIME physician’s opinion that the claimant’s upper extremity symptoms (beyond the swan neck deformity) might be related to the industrial injury so as to justify further diagnostic procedures, we disagree. First, the claimant testified the injury immediately caused “a cramp from the little finger up to my neck.” (Tr. p. 14). On December 5, 1997, Dr. Heyman stated there was a “point where [the claimant] appears to have significantly contused the medial aspect of his elbow,” and Dr. Heyman reported there was a positive Tinel’s sign over the cubital tunnel. The respondents’ own expert, Dr. Hrutkay, examined the claimant after the DIME and referred the claimant for a bone scan to rule out reflex sympathetic dystrophy and conclusively determine MMI.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 22, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Bill Whitacre
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 February 1, 2001 to the following parties:
Francisco Villela, 112 Crest Lane Village, Ft. Morgan, CO 80705
Deb Carlock, Excel Corporation, C. S. 4100, Ft. Morgan, CO 80701
Cargill, Inc., Suzan Hassebrook, Crawford Company, P. O. Box 6502, Englewood, CO 80155-6502
Rebecca A. Koppes Conway, Esq., 912 8th Ave., Greeley, CO 80631 (For Claimant)
Kathleen M. Fairbanks, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy