W.C. No. 4-759-063.Industrial Claim Appeals Office.
January 18, 2011.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) dated September 13, 2010, that determined that the claimant was not at maximum medical improvement and that ordered the respondents to pay for certain medical benefits. We affirm.
A hearing was held on the issues whether the claimant was at maximum medical improvement and whether the respondents were liable for specified medical benefits. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant sustained a compensable injury on January 15, 2008 when a blackboard fell and struck her on the head and neck. She was treated the following day and underwent a computed tomography scan that showed the presence in her neck of degenerative disc disease. Dr. Malis examined her several days later and recommended six sessions of chiropractic treatment. On February 11, 2008 Dr. Malis examined her again, when she reported that her neck condition was improved. Dr. Malis referred her to Dr. Hattem, who referred her for six more chiropractic treatments, which she underwent in February and March 2008. During the last treatment the claimant experienced pain in her left shoulder. On March 24, 2008 the claimant went to Penrose Hospital, where she reported that she had been hit “by a hand” two weeks ago and had suffered left shoulder and arm pain. In April 2008 Dr. Peterson referred her to Dr. Hattem based upon her “delayed recovery.” Dr. Hattem reported that the claimant had experienced left upper back pain since the chiropractic treatment and he referred the claimant for physical therapy. Dr. Hattem stated that the claimant reached maximum medical improvement on October 23, 2008.
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On September 25, 2009, the claimant underwent a Division-sponsored independent medical examination (DIME) performed by Dr. Lichtenberg. Dr. Lichtenberg reported that the claimant had not reached maximum medical improvement because she needed a psychological evaluation based on the persistent pain in her neck and shoulder, an orthopedic evaluation of her left shoulder condition, a trial of acupuncture, and additional physical therapy.
The ALJ weighed the medical evidence and found that the respondents failed to overcome the DIME opinion regarding maximum medical improvement. The ALJ found that the claimant’s left shoulder condition was caused by her chiropractic treatment and that the medical treatment recommended by the DIME physician was reasonable and necessary. Accordingly, the ALJ ordered the respondents to provide the psychological evaluation, the orthopedic evaluation, the additional physical therapy, and the trial of acupuncture.
The respondents appealed and argue that the ALJ erred in concluding that the respondents failed to overcome the DIME report regarding both the cause of the claimant’s left shoulder problems and the question whether she was at maximum medical improvement. However, we have reviewed the record and considered the respondents’ arguments, and we are unpersuaded that the ALJ committed reversible error.
The DIME physician’s findings as to maximum medical improvement are binding unless overcome at hearing by clear and convincing evidence. § 8-42-107(8)(b)(III), (c), C.R.S.; Montoya v. Industrial Claim Appeals Office 203 P.3d 620 (Colo. App. 2008). Determination of maximum medical improvement requires the DIME physician to assess, as a matter of diagnosis, whether the various components of the claimant’s medical condition are causally related to the industrial injury Martinez v. Industrial Claim Appeals Office 176 P.3d 826 (Colo. App. 2007). This scheme promotes prompt delivery of benefits, simplifies the workers’ compensation process, and reduces the need for litigation. Williams v. Kunau 147 P.3d 33 (Colo., 2006) Dyrkopp v. Indus. Claim Appeals Office, 30 P.3d 821, 822 (Colo. App. 2001).
“Clear and convincing” evidence is that which demonstrates that it is “highly probable” the DIME physician’s opinion is incorrect Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo. App. 1998); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). The question whether the respondents have overcome the DIME by clear and convincing evidence is one of fact for the ALJ’s determination. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). This is true despite the elevated standard of proof required to overcome a DIME: “[I]rrespective of whether the standard of proof at the administrative adjudicatory level of
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proceedings is clear and convincing, beyond a reasonable doubt, or merely a preponderance of the evidence, it is solely for the trier of fact to determine the persuasive effect of the evidence and whether the burden of proof has been satisfied.” Id, 914 P.2d at 414. Therefore, the standard of review remains whether the ALJ’s findings of fact are supported by substantial evidence in the record Id; § 8-43-301(8), C.R.S. Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, supra. This standard of review is deferential and the scope of our review is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert, supra.
Here, the respondents first argue that the claimant’s attorney stipulated that the claimant’s final authorized visit to the chiropractor occurred on March 7, 2008. The respondents further argue that pursuant to that stipulation any injury that occurred during the visit on March 14, 2008 was during treatment that was not authorized. We are unpersuaded by this argument.
First, the respondents’ attorney did not at any point that we can locate assert to the ALJ that claimant’s counsel had stipulated that the treatment was unauthorized. In this regard, we note that after listening to both attorneys’ statements regarding the issues in dispute, the ALJ stated that in his view the issue for hearing was whether the claimant sustained a left shoulder injury “as a result of chiropractic treatment for the work injury.” He then asked both attorneys whether they agreed that that was the disputed issue and both agreed that it was. Tr. at 8. At this point the respondents’ counsel did not assert to the ALJ that the claimant had “stipulated” that the chiropractic visit was unauthorized. Moreover, although the respondents argued in their Post Hearing Position Statement that the treatment to the claimant’s left shoulder following February 11th was unauthorized, the basis for this assertion was Dr. Malis’s note dated February 12th that she recommended Dr. Polvi for chiropractic care and that she had “not approved [the claimant] for care with Dr. Johnson.” Report of Suzanne M. Malis, M.D. at 2 (February 12, 2008). The respondents also argued in their position statement that the twelve chiropractic treatments had been completed on March 7th and that all subsequent visits were “self-referred” by the claimant and not intended to treat her compensable injury. However, again, the respondents did not assert that the claimant had surrendered the right to argue that the visits were authorized by “stipulating” to that fact. It seems evident, therefore, that even at the point where post-hearing arguments were being presented the respondents considered it to be a disputed issue for the ALJ’s resolution whether the chiropractic treatment after March 7th was authorized.
However, even assuming that it was unnecessary for the respondents to assert to the ALJ that there was a “stipulation” regarding the authorization of the treatment, we
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nonetheless reject the respondents’ argument. Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo. App. 1994). There was undisputedly no formal stipulation presented to the ALJ, and the respondents are essentially asserting that the claimant’s counsel’s statements constituted a judicial admission regarding the authorization of the treatment. A judicial admission “is a formal, deliberate declaration which a party or his attorney makes in a judicial proceeding for the purpose of dispensing with proof of formal matters or of facts about which there is no real dispute.” Kempter v. Hurd, 713 P.2d 1274, 1279 (Colo. 1986). Moreover, judicial admissions must be unequivocal, because they are binding on the party once they are made Salazar v. American Sterilizer Co., 5 P.3d 357 (Colo. App. 2000) Rojhani v. Meagher, 22 P.3d 554 (Colo. App. 2000). Here, the statements made by claimant’s counsel could not reasonably be construed as the necessary deliberate, formal declarations that the claimant conceded that the chiropractic treatment was not authorized. It is true that he conceded at the outset of the hearing that the initial twelve chiropractic visits “did run out” on March 7, 2008. Tr. at 6. However, it is evident from the context of his statement that he was referring to the visits that were preauthorized by the respondents and that he was not “stipulating” that the visits after March 7th were unauthorized. Indeed, he immediately noted that his client continued to undergo chiropractic treatment, that the subsequent treatment was paid for by the insurer, that transportation was provided to and from the treatment, and that when she returned for a subsequent evaluation by Dr. Hattem, he “approved six more chiropractic visits.” Tr. at 7. As noted, these statements were neither a judicial admission or a stipulation that the chiropractic treatment that caused the claimant’s shoulder injury was unauthorized.
In the absence of such a stipulation or judicial admission, the ALJ was free, of course, to weigh the evidence, enter factual findings, and draw legal conclusions concerning the authorization of the treatment provided after March 7th, when the shoulder injury occurred. In concluding that the treatment was authorized, the ALJ relied upon Dr. Malis’s report dated February 12, 2008, in which she referred the claimant “to chiro for 6 visits more. . . .” Report of Suzanne M. Malis, M.D. at 2 (February 12, 2008). Since it is undisputed that Dr. Malis was authorized to refer the claimant for the additional chiropractic treatments and since the visit to Dr. Johnson on March 14th was within those six visits, the ALJ could reasonably infer that the shoulder injury occurred while the claimant was undergoing authorized medical treatment for the compensable injury. Moreover, although Dr. Malis did append a note to her report stating that she had not “approved” of chiropractic care by Dr. Johnson, it appears undisputed that he was authorized to treat the claimant by virtue of the respondents’ failure initially to designate an authorized treating physician or other provider. The ALJ could reasonably infer that, despite Dr. Malis’s lack of “approval” of Dr. Johnson, because he was authorized to provide chiropractic care to the claimant, the injury occurred during treatment by an authorized provider. The ALJ’s factual findings in this respect are amply supported by
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substantial evidence and we perceive no basis on which to disturb the ALJ’s conclusions that the respondents failed to overcome the DIME report on the question of the cause of the claimant’s shoulder injury Metro Moving Storage Co. v. Gussert, supra.
The respondents also argue that the ALJ’s finding that the claimant was injured during chiropractic manipulation is based upon speculation. Because a finding may not be supported by speculation, the respondents argue that the ALJ erred in not concluding that the DIME physician’s opinion regarding the cause of the claimant’s shoulder condition was overcome. In this regard, the ALJ found that the medical report from Penrose Hospital referring to the claimant being “hit by a hand” probably referred to the injury that occurred during her chiropractic treatment. The respondents argue that this is the only finding that supports the inference that she was injured during chiropractic treatment, and that it is merely speculation on the ALJ’s part. However, we note that the claimant testified that the report from Penrose Hospital that she was “hit by a hand” was incorrect and that she had reported to them that her chiropractor was “making an adjustment and he pressed down in that left area” causing severe pain. Tr. at 61. Read as a whole, the claimant’s testimony during which she described the injury that occurred during the chiropractic treatment provides ample evidence supporting the ALJ’s factual findings that she injured her shoulder during that treatment. Accordingly, we are unpersuaded by the respondents’ arguments that the ALJ’s findings were based upon speculation.
Insofar as the respondents make arguments that are variations of those addressed above, we are unpersuaded that a different resolution should be reached on review.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 13, 2010, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________ John D. Baird
__________________________ Curt Kriksciun
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ROSALYN ELLIS, 1091 PALACIO VIEW #103, COLORADO SPRINGS, CO, (Claimant).
TIME WARNER, Attn: HEIDI THORNE, COLORADO SPRINGS, CO, (Employer).
INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, Attn: PATRICIA DAVIS, C/O: ESIS PORTLAND WC CLAIMS, TAMPA, FL, (Insurer).
MCDIVITT LAW FIRM, PC, Attn: KIRK WHITEHEAD, ESQ., COLORADO SPRINGS, CO, (For Claimant)
CLIFTON, MUELLER BOVARNICK, PC, Attn: RICHARD BOVARNICK, ESQ., DENVER, CO, (For Respondents).
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