W.C. No. 4-550-062.Industrial Claim Appeals Office.
March 17, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ). The claimant contends the ALJ erred in finding the claimant failed to prove a causal connection between her dystonia and the industrial injury. We disagree and, therefore, affirm.
In July 2002 the claimant developed tetanus as a result of treatment for a compensable leg injury. Thereafter the claimant developed a multitude of symptoms which her family physician, Dr. Nystrom, diagnosed as “dystonia, secondary to previous tetanus infection.” Dr. Nystrom then referred the claimant to Dr. Gage, who is a neurologist.
On August 26, 2003, Dr. Gage opined the claimant’s “history is suggestive of dystonia possibly induced by the recent tetanus infection.” However, on January 12, 2004, Dr. Gage diagnosed “dystonia syndrome of unclear etiology.” Then on May 6, 2004 Dr. Gage opined that to a “reasonable degree of medical certainty,” the dystonia was related to the tetanus infection.
At the respondents’ request the claimant was examined by Dr. Bernton who was unable to determine the cause of the dystonia. Consequently, Dr. Bernton recommended an evaluation by a “movement disorder specialist.” The claimant agreed to continue a hearing scheduled for March 10, 2004, to undergo an evaluation by movement disorder specialist, Dr. Seberger. However, when Dr. Seberger refused to perform the evaluation, the respondents arranged a record review by Dr. Murray, who is a neurologist. In a report dated April 23, 2004, Dr. Murray opined that medical research did not suggest a causal relationship between the tetanus and the dystonia.
At the hearing on April 28, 2004, the claimant objected to the admission of Dr. Murray’s report on grounds the report was not exchanged at least 20 days before the hearing as required by the Rules of Procedure, Part VIII(I)(1), 7 Code Colo. Reg. 1101-7 at 30. The ALJ determined the respondents presented good cause to allow the admission of Dr. Murray’s report and therefore, overruled the objection.
Ultimately, the ALJ determined the medical evidence was insufficient to sustain the claimant’s burden to prove the dystonia was caused by the tetanus infection. Therefore, the ALJ concluded the respondents are not liable for the dystonia.
On review the claimant contends the ALJ erroneously admitted Dr. Murray’s report. We perceive no basis to disturb the ALJ’s order.
Rule VIII(I)(1) provides that a medical report exchanged less than 20 days prior to a hearing may be admitted upon a showing of good cause. The ALJ has considerable discretion in determining whether a party has demonstrated good cause. See IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). Factors which the ALJ may consider in determining whether good cause exists for the untimely submission of a medical report include the significance of the evidence, whether or not the evidence might have been obtained and submitted by the exercise of reasonable diligence prior to the hearing, and the prejudice to the opposing party by allowing the evidence. See Raffaelo v. Industrial Commission, 670 P.2d 805 (Colo.App. 1983).
Because the ALJ’s authority is discretionary, we may not interfere with the ALJ’s ruling in the absence of an abuse of discretion. Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986). The standard on review of an alleged abuse of discretion is whether the ALJ’s order exceeds the bounds of reason as where it is not supported by the record or the applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
Here, the respondents’ counsel asserted that she made numerous attempts to retain a movement disorder specialist to evaluate the claimant and that Dr. Murray was not retained until it was determined that no movement disorder specialist was willing to conduct the evaluation. (Tr. p. 55). Further, the respondents’ attorney stated the claimant refused an offer of a continuance to allow the claimant an opportunity to obtain rebuttal evidence. (Tr. p. 56). The claimant did not deny these assertions. Instead, the claimant argued that Dr. Murray’s report was not “relevant or probative of anything.” (Tr. p. 58).
The ALJ implicitly determined that Dr. Murray’s opinions were highly relevant and probative because the case primarily concerns “a medical causation issue” involving complex factors. (Tr. p. 56). Further, the ALJ was persuaded that the respondents were reasonably diligent in their efforts to obtain the evaluation recommended by Dr. Bernton and effectively determined the late exchange of Dr. Murray’s report was unpreventable. Under these circumstances, we decline to conclude the ALJ’s finding of good cause to admit Dr. Murray’s report exceeds the bounds of reason.
Moreover, at the conclusion of the hearing the ALJ allowed the record to remain open and afforded the claimant an opportunity to present rebuttal evidence from Dr. Gage and Dr. Nystrom. Therefore, the claimant was afforded due process. See Delaney v. Industrial Claim Appeals Office 30 P.3d 691 (Colo.App. 2000).
The claimant also contends the ALJ erred in failing to find the dystonia resulted from the industrial injury. In particular, the claimant contends the ALJ misapplied the burden of proof by ignoring the opinions of Dr. Gage and Dr. Nystrom. The claimant argues that because these medical opinions were based on “reasonable medical certainty,” and the claimant was only required to prove it was medically “probable” the disputed condition is related to the industrial injury, the ALJ was bound by these medical opinions.
Further, the claimant the contends Dr. Murray’s opinions are not competent because the opinions are based on Dr. Murray’s failure to recognize the temporal relationship between the dystonia and the tetanus infection. The claimant also contends Dr. Murray admitted tetanus was a potential cause of dystonia. We reject these arguments.
It is the claimant’s burden to prove a causal relationship between the industrial injury and the medical condition for which he seeks benefits Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). As argued by the claimant, she was not required to prove causation by medical certainty. Rather, the claimant was required to prove causation by a preponderance of evidence. Younger v. City and County of Denver, 810 P.2d 647 (Colo. 1991) .
We must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004. This standard requires us to review the evidence in the light most favorable to the prevailing party, and accept the ALJ’s resolution of conflicts in the evidence, and the plausible inferences which he drew from the evidence Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293
(1951); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
To the extent expert medical testimony is provided, it is the ALJ’s prerogative to assess its weight and sufficiency regardless of whether the opinions are expressed as “reasonable medical probability.” Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 2000); Beaudoin Construction Co. v. Industrial Commission, 626 P.2d 711 (Colo.App. 1980). Thus, regardless of whether a medical opinion is expressed as “reasonable medical certainty” or “reasonable medical probability,” it is not binding on the question of whether the claimant has sustained a compensable injury. Cf. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000).
Where the medical testimony is inconsistent or subject to conflicting interpretation, we are bound by the ALJ’s resolution of those inconsistencies and the plausible inferences drawn by the ALJ. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). This is true because the ALJ is considered to possess expert knowledge which renders him competent to evaluate medical evidence and draw plausible inferences from it. Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941).
Initially, we reject the claimant’s contention the ALJ ignored the opinions of Dr. Gage and Dr. Nystrom. To the contrary, the ALJ explicitly cited their opinions, including the reports submitted by the claimant after the close of the formal hearing.
However, the ALJ noted Dr. Nystrom’s admission that he was not an expert in infectious diseases or dystonia. Indeed, Dr. Nystrom admitted he had never treated a case of tetanus and deferred to “other specialists” to evaluate other “underlying causes of” the dystonia. Furthermore, after reviewing Dr. Murray’s opinions Dr. Nystrom merely opined there was a “possibility” the claimant had a propensity for dystonia that was aggravated by the tetanus.
We also note the record supports the ALJ’s findings that the claimant failed to present evidence that Dr. Gage possessed any specialized knowledge concerning causation, and that Dr. Gage did not explain the medical basis for his opinion that the dystonia was caused by the tetanus infection. (See Gage May 6, 2004). For these reasons the ALJ was not persuaded by the opinions of Dr. Gage and Dr. Nystrom.
In contrast, Dr. Murray’s opinions were based on the absence of medical literature that a tetanus infection can cause dystonia. Therefore, even if Dr. Murray had failed to recognize evidence of a temporal relationship between the dystonia and the industrial injury, that evidence would not necessarily affect Dr. Murray’s opinion.
Moreover, Dr. Bernton concurred with Dr. Murray and the claimant does not dispute that Dr. Bernton recognized the temporal relationship. Accordingly, the ALJ could, and did, reasonably find there was not substantial evidence to support a finding that the dystonia was a natural consequence of the industrial injury.
The claimant’s further arguments have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 1, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Lori VonBurg, 480 27 1/4 Rd., #44, Grand Junction, CO 81501
Sundance Properties, 2350 G Rd., Grand Junction, CO 81505
Cindy Kudron, Continental Western Insurance Company, P.O. Box 80439, Lincoln, NE 68501-0439
Harry A. Tucker, Jr., Esq., 2478 Patterson Rd., Unit 22, Grand Junction, CO 81505 (For Claimant)
Nancy C. Hummel, Esq. and T. Paul Krueger, II, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)