W.C. No. 4-732-992.Industrial Claim Appeals Office.
November 9, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated July 29, 2010, that determined the respondents had produced clear and convincing evidence to overcome the Division-sponsored independent medical examination (DIME) physician’s opinion. We affirm.
The ALJ in an order dated December 7, 2009 found that the DIME physician’s determination on medical impairment had been overcome and found that the claimant had reached maximum medical improvement (MMI) without impairment based upon the opinion of a treating physician. In an order dated April 26, 2010 we remanded the matter for the ALJ to enter a new order determining whether the respondents had overcome the opinion of the DIME physician on MMI by clear and convincing evidence. The ALJ’s order had suggested that the ALJ may have misapplied the applicable burden of proof on the issue of overcoming a DIME physician’s opinion on MMI in case of a scheduled injury. After remand, in an order dated July 29, 2010 the ALJ found that the respondents had so overcome the opinion of the DIME physician.
The claimant concedes that the ALJ applied the correct standard to determine whether or not the finding of MMI by the DIME had been overcome. However, the claimant appeals contending that the ALJ’s findings of fact are insufficient to permit appellate review on the issue of whether the claimant reached MMI on August 14, 2008 without impairment. As we understand the claimant’s argument he argues that it is unclear whether the ALJ merely disregarded the DIME physician’s opinion regarding impairment once the ALJ found his opinion regarding MMI had been overcome or
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whether he separately considered the opinions regarding impairment. The claimant argues that MMI and impairment are completely different issues. Therefore because the claimant contends that it is unclear what consideration the ALJ gave to the issue of the claimant’s impairment for the carpal tunnel syndrome the matter should be remanded. We are not persuaded that the findings are insufficient to permit appellate review. In our view the ALJ found that the opinions of the DIME physician had been overcome on both the issue of MMI and on impairment. Therefore no remand is necessary.
The ALJ made the following findings of fact. The DIME physician determined that the claimant had reached MMI for his CTS but concluded that the claimant had not reached MMI for his ulnar neuropathy. The DIME physician opined that the claimant’s ulnar neuropath had not been properly considered and required additional evaluation. Nevertheless, the DIME physician explained that if the claimant’s ulnar neuropathy did not required surgery, then he had reached MMI for the condition. Dr. Lambden performed updated EMG testing of the claimant’s ulnar nerve. The study was normal and showed no electrodiagnostic evidence of cubital tunnel syndrome or ulnar neuropathy. Dr. Lambden’s findings are consistent with previous electrodiagnostic testing of the claimant’s ulnar nerve. The claimant did not have any EMG evidence of ulnar nerve entrapment. Dr. Lambden persuasively explained that surgery was not recommended and no additional evaluation by an orthopedic surgeon was warranted. Dr. Lambden concluded that the claimant had reached MMI for his ulnar nerve condition. Further Dr. Steinmetz testified that he agreed with Dr. Fillmore’s DIME determination, and that the claimant’s recent EMG of the ulnar nerve yielded normal results. Extensive diagnostic testing over a number of years revealed that it was highly improbable that the claimant suffered from an ulnar never condition. Dr. Lambden persuasively concluded that the DIME physician’s opinion, based solely on symptomatic complaints was clearly erroneous. Therefore the ALJ concluded that as determined by Dr. Orgel, the claimant reached MMI on August 14, 2008 without impairment.
We must uphold the ALJ’s determination that the DIME physician’s whole person impairment rating has been overcome by clear and convincing evidence if supported by substantial evidence in the record. Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 414 (Colo. App. 1995). Here the ALJ made detailed findings resolving conflicts in the evidence concerning the claimant’s impairment and with regard to the issue of any impairment connected to a possible ulnar nerve condition found that there was none. In our opinion the ALJ entered sufficient findings to indicate the legal and factual bases of his determination that the respondents overcame the physician’s impairment rating by clear and convincing evidence so that we may conduct meaningful appellate review. Section 8-43-301(8); Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5
P.3d 385 (Colo. App. 2000).
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Having found that the claimant had overcome the impairment rating of the DIME physician the question became what impairment rating was appropriate under the circumstances. See Laclay v. Academy Insulation Central VAC, W.C. No. 4-693-581 (June 04, 2009) DeLeon v. Whole Foods Market, Inc., W.C. No. 4-600-477 (November 16, 2006). The claimant’s correct medical impairment rating becomes a question of fact for the ALJ’s resolution based on a preponderance of the evidence. Garlets v. Memorial Hospital, W.C. No. 4-336-566 (September 5, 2001). The pertinent issue is whether the ALJ erred or abused his discretion in selecting the impairment rating that he ultimately awarded Ortiz v. Service Experts, Inc., W.C. No. 4-657-974 (January 22, 2009).
Because the issue of the extent of the claimant’s permanent partial disability is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo. App. 1999).
Here, in contrast to the opinion of the DIME physician the treating physician Dr. Orgel opined that the claimant had no impairment. The ALJ having found that the opinion of the DIME physician was erroneous credited the medical opinions of the treating physician and determined that the claimant reached MMI on August 14, 2008 without impairment. In our view the ALJ’s determination that the claimant suffered no impairment includes not only the ulnar nerve condition but also the carpal tunnel condition.
The outcome of the case depended heavily on the opinions of medical experts. The weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). It was the ALJ’s prerogative to weigh the evidence, and that the ALJ might have reached a contrary conclusion is immaterial on review. Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo. App. 1999). In our opinion, the opinion of the treating physician constitutes substantial evidence supporting the ALJ’s determination that the claimant suffered no impairment and we are bound by that determination. Section 8-43-301(8), C.R.S.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 29, 2010 is affirmed.
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INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
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DAVID KAMAKELE, 3421 LEOPARD PLACE, LOVELAND, CO, (Claimant).
BOULDER TOYOTA-SCION, Attn: BRAD HERSHELMAN, C/O: /OR ASPEN WHEEL ALIGN BRAKE, BOULDER, CO, (Employer).
ADVANTAGE WORKERS’ COMP INS /OR TRUCK INS EXCH, Attn: DEREK SPRAGUE, C/O: PINNACLE RISK MANAGEMENT SERVICES, LOUISVILLE, CO, (Insurer).
SAWAYA, ROSE KAPLAN, PC, Attn: BRITTON MORRELL, ESQ., GREELEY, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: LYNDA S NEWBOLD, ESQ., DENVER, CO, (For Respondents).
VARNELL ASSOCIATES, Attn: JOE M ESPINOSA, ESQ., DENVER, CO, (Other Party).
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