W.C. No. 4-374-517Industrial Claim Appeals Office.
April 24, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) insofar as it found the claimant’s need for surgery was not caused by the industrial injury. Resolution of this issue turned on the question of whether the Division-sponsored independent medical examination (DIME) physician’s finding concerning causation was overcome by clear and convincing evidence. We affirm.
The claimant sustained a compensable back injury on January 23, 1998. As a result of this injury, the claimant sustained a herniated disc at L4-5. However, the claimant declined to consider surgery for this condition, and was placed at maximum medical improvement (MMI) on June 8, 1998, by the treating physician. By January 1, 1999, the claimant had returned to work as a limousine driver.
On January 1, 1999, claimant was involved in a motor vehicle accident (MVA) while parked in the limousine. Commencing January 14, 1999, the claimant began treatment with Dr. Centeno. Dr. Centeno diagnosed an “aggravation” of the claimant’s preexisting lumbar spine injury, and stated that “100 % of today’s visit and all ongoing care to bring him back to his previous level of functioning will be related to the 1/1/99 MVA.” Thereafter, Dr. Centeno ordered diagnostic testing which included EMG studies and an MRI, which he reported were “100 %” related to the MVA. However, by September 28, 1999, Dr. Centeno opined the claimant was “back to his pre-accident baseline with regards to the low back.” On October 19, 1999, Dr. Centeno recommended surgery to repair the disc herniation.
On November 3, 1999, the claimant underwent a DIME on the issues of MMI and impairment. In his report, the DIME physician opined the claimant was not at MMI because he needed a surgical consultation in preparation for repairing the herniated disc. However, the DIME physician opined “that the reason for doing surgery is 100% secondary to the fact that there was an exacerbating injury, i.e.,” the MVA. In his deposition, the DIME physician explained the basis of his opinion. He noted the claimant declined surgery before being placed at MMI for the industrial injury; he sought surgery after the MVA, and “to have Dr. Centeno treat [the claimant] for all of the symptoms, it makes complete sense to me that it’s 100 percent related to the auto accident if he should have to have surgery.” (Dr. Bolles’ depo. pp. 38-41).
The ALJ found that the January 1999 MVA was a “substantial aggravating event” which caused a “new injury.” The ALJ further found the DIME physician opined the claimant is not at MMI, but the claimant’s need for surgery is the result of the January 1999 MVA. Therefore, the ALJ implicitly denied the claim for medical treatment in the form of surgery to repair the herniated disc.
On review, the claimant argues he overcame by clear and convincing evidence the DIME physician’s opinion that the need for surgery was caused solely by the MVA, and that the ALJ’s implicit finding to the contrary is not supported by substantial evidence. In support of this contention, the claimant relies on his own testimony, as well as the reports and opinions of Dr. Centeno, which indicate that the need for surgery is attributable to the 1998 industrial injury. We find no error.
The finding of a DIME physician concerning MMI is binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(b)(III), C.R.S. 2000; Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Section 8-40-201(11.5), C.R.S. 2000, defines MMI as the “point in time 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.” (Emphasis added). In light of these statutes, we have held § 8-42-107(8)(b) establishes a legislative requirement that ALJs defer to a DIME physician’s opinion concerning the cause of the need for additional treatment to improve the claimant’s condition unless the opinion is overcome by clear and convincing evidence. Fields v. TAD Temporaries, W.C. 4-185-877 (September 7, 1995); cf. Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998) (applying similar rule to DIME physician’s determination of the cause of permanent medical impairment).
To the extent the DIME physician’s opinion is ambiguous concerning whether or not the claimant has reached MMI for the industrial injury, the meaning of the IME physician’s report is a question of fact for the ALJ. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra. Further, the question of whether the DIME physician’s opinion concerning MMI has been overcome by clear and convincing evidence is also an issue of fact. Postlewait v. Midwest Barricade, 905 P.2d 21
(Colo.App. 1995).
Because these issues are factual in nature, we must uphold the ALJ’s determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. This standard of review requires that we defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995). We also note the ALJ is not held to a crystalline standard in expressing findings of fact and conclusions of law. Rather, it is sufficient for the ALJ to enter findings concerning the evidence which she finds dispositive of the issues, and there is no requirement for the ALJ to discuss and reject all conflicting evidence and inferences. Further, we may consider findings necessarily implied by the ALJ’s order. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra.
Here, the ALJ found that the DIME physician opined the claimant was not at MMI, but the cause of the claimant’s need for additional treatment was the MVA of January 1999. Inherent in the ALJ’s finding is her conclusion that the DIME physician found the claimant remained at MMI for the industrial injury, but sustained an intervening injury which caused the need for additional treatment.
The claimant’s assertion notwithstanding, substantial evidence supports the ALJ’s finding that the DIME physician’s opinion concerning the cause of the need for surgery was not overcome by clear and convincing evidence. The DIME physician explained the basis of his conclusion that the MVA caused the need for surgery. His opinion is supported by evidence that the claimant declined surgery prior to being placed at MMI for the industrial injury, but sought surgery after the MVA. Further, in May 1999, the claimant reported to Dr. Ogsbury that he was “perhaps 15 % improved” when he was placed at MMI for the industrial injury, but his pain returned “to its previous level” following the MVA. Although the claimant and Dr. Centeno testified to facts and opinions which might support a contrary conclusion, the weight to be accorded such opinions was for the ALJ to determine. Because the ALJ did not rely on the testimony of the claimant and Dr. Centeno, we infer the ALJ found the testimony of these witnesses was not persuasive.
The claimant also argues that because the ALJ did not find the MVA “permanently aggravated” the claimant’s disc herniation, the order is contrary to law. We disagree.
As noted, the issue before the DIME physician and the ALJ was whether the claimant’s need for treatment was causally related to the industrial injury or the intervening MVA. This issue is distinct from, and should not be confused with, the issue of whether the claimant will have sustained additional permanent impairment once he reaches MMI from the MVA. Indeed, the ALJ expressly reserved the issue of permanent partial disability for future determination.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 25, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
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. 2000.
Copies of this decision were mailed April 24, 2001 to the following parties:
Mike M. Williams, 12624 Edwards Pl., Denver, CO 80216
City Express, 6750 E. 46th Ave. Dr., #600, Denver, CO 80216-3454
AIU Insurance Company, Tina Gustafson, Adjuster, AIG Claim Services, P. O. Box 32130, Phoenix, AZ 85064
David Levy, Esq., 745 Walnut St., Boulder, CO 80302 (For Claimant)
W. Berkeley Mann, Jr., Esq., P. O. Box 22833, Denver, CO 80222 (For Respondents)
By: A. Pendroy