W.C. No. 4-309-561Industrial Claim Appeals Office.
August 17, 1999.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) insofar as it requires them to designate a physician to treat the claimant’s psychological condition. The respondents contend they overcame the opinion of a Division-sponsored independent medical examiner (IME) that the claimant was not at maximum medical improvement (MMI) for the psychological condition. We affirm the ALJ’s order.
The claimant sustained a compensable injury to her back, neck, and right shoulder on August 30, 1996. The claimant was apparently treated by Dr. Segall, who opined she reached MMI on October 10, 1996. The claimant was referred to Dr. Bernton who opined the claimant was suffering from a psychogenic pain disorder unrelated to the industrial injury. Dr. Bernton also opined the claimant sustained no permanent medical impairment as a result of the injury. The respondents also requested the claimant to undergo an examination by Dr. Yost, a psychiatrist. In a report dated October 31, 1996, Dr. Yost opined the claimant was “probably” at MMI for the psychological sequelae of the injury.
The claimant obtained a Division-sponsored IME to contest the CMMI determination. In a report dated November 10, 1997, the IME physician opined the claimant was not at MMI. Specifically, the IME physician opined the claimant was suffering from a chronic myofascial pain syndrome which required a physical therapy program. He also diagnosed “probable depression” and recommended the claimant undergo an evaluation by a Level II accredited psychiatrist and expressed his “belief” that the claimant needed management of her medications and continuing psychotherapy.
Following the IME examination the respondents requested Dr. Yost perform another examination of the claimant. Dr. Yost examined the claimant on January 7, 1998, and diagnosed a “pain disorder” related to the industrial injury. He again opined the claimant was probably at MMI with a three percent whole person psychiatric impairment. On March 24, 1998, Dr. Yost reduced the rating to two percent because he believed the claimant’s psychological condition was being affected by personal problems involving her son.
The respondents sought a hearing to overcome the Division IME physician’s determination of MMI. At the commencement of hearing the parties stipulated that if the IME was not overcome the respondents would designate physicians to treat the claimant at her new home in Kansas.
The ALJ concluded the respondents failed to overcome the Division IME physician’s opinion by clear and convincing evidence. In support, he found the opinions of Dr. Bernton represented a mere “difference of opinion” with the IME physician, and that the difference of opinion did not rise to the level of clear and convincing evidence. Therefore the ALJ determined the claimant is not at MMI for the physical and psychological components of the injury, and ordered the respondents to designate physicians to treat the claimant in Shawnee, Kansas or the surrounding area.
On review the respondents contend the ALJ “failed to resolve conflicts in the evidence” concerning whether or not the claimant reached MMI for the psychological condition. The respondents reason the IME physician recommended the claimant undergo an examination by a Level II accredited psychiatrist. The respondents point out that Dr. Yost is Level II accredited and in January 1998 Dr. Yost opined the claimant was at MMI. Consequently, the respondents assert “the ALJ can and should make a determination whether further treatment is necessary” for the claimant’s psychological condition. We disagree.
The finding of a Division-sponsored IME physician concerning MMI may be overcome “only by clear and convincing evidence.” Section 8-42-107(8)(b)(III), C.R.S. 1998. The question of whether the IME physician’s opinion concerning MMI has been overcome is one of fact for determination by the ALJ. The party challenging the IME physician’s opinion must show that it is “highly probable” the IME physician’s opinion was incorrect. Postelwait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995).
Because the issue is factual in nature, we must hold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. This standard 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 evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). We specifically note that once the IME procedure is used to determine MMI an ALJ is not required to give special weight to the opinions of any physician other than the Division IME physician. Postelwait v. Midwest Barricade, supra.
Here, the evidence supports the ALJ’s determination that the IME physician’s opinion concerning MMI was not overcome by clear and convincing evidence. The opinion of the Division IME physician that the claimant probably needed further treatment for her psychological condition was supported by the report of Dr. Ryan. Although Dr. Yost expressed a contrary opinion, the weight to be assigned his opinion was a matter solely within the fact-finding authority of the ALJ. Postelwait v. Midwest Barricade, supra.
We reject the respondents’ assertion that Dr. Yost’s status as a Level II accredited physician required the ALJ to find the claimant was at MMI for the psychological condition. It is true the Division IME physician recommended examination by a Level II psychiatrist. However, in view of the Division IME physician’s opinion the claimant is not at MMI, the recommendation for a psychological evaluation presumably envisioned an examination by an authorized psychiatrist designated to treat the claimant’s condition. See 8-40-201(11.5), C.R.S. 1998 (MMI is point in time when no further treatment is reasonably expected to improve the condition); Nunnally v. Wal-Mart Stores, Inc., 943 P.2d 26
(Colo.App. 1996). The respondents do not contend that Dr. Yost is an authorized physician who has treated the claimant’s condition. Moreover, Dr. Yost’s reports were apparently procured by the respondents for purposes of litigating the question of whether or not the claimant has reached MMI. Thus, the ALJ need not have concluded the respondents provided the type of neutral evaluation contemplated by the Division IME physician’s opinion.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 19, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed August 17, 1999 the following parties:
Patricia Y. Webb, P.O. Box 1683, Independence, MO 64055
Shirley Williamson, 1829 Denver West Dr., Bldg. 27, P.O. Box 4001, Golden, CO 80401
Rodyne Roche, Adams County Risk Manager, 450 S. 4th Ave., Brighton, CO 80601
Peter H. McGuire, Esq., 1325 S. Colorado Blvd., #405, Denver, CO 80222 (For Claimant)
Pamela Musgrave, Esq., 1410 Grant St., #C206, Denver, CO 80203 (For Respondent)
BY: A. Pendroy