W.C. No. 4-334-401.Industrial Claim Appeals Office.
March 31, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cain (ALJ) dated November 3, 2009, that denied the claimant’s request for medical benefits. We affirm.
The claimant sustained a compensable injury to her right wrist on February 9, 2006. As a result of the injury, the claimant underwent several invasive procedures. Dr. Conyers in 2007 recommended an MR arthrogram to check for TFC pathology. The ALJ determined that the proposed surgery was not reasonable and necessary to relieve the claimant’s symptoms or prevent deterioration of her condition. The ALJ denied and dismissed the claimant’s request for medical benefits in the form of surgery recommended by Dr. Conyers.
On appeal, the claimant contends that she showed by a preponderance of the evidence that the proposed surgery by Dr. Conyers constituted reasonable and necessary medical treatment to relieve her symptoms or prevent further deterioration of her condition pursuant to § 8-42-101(1)(a) C.R.S. The claimant contends that the evidence upon which the ALJ relied does not support the ALJ’s conclusions of law and order. We are not persuaded that the ALJ committed reversible error.
The respondent is liable for medical treatment that is reasonably necessary to cure and relieve the effects of the industrial injury. Section 8-42-101(1)(a), C.R.S; Colorado Compensation Insurance Authority v. Nofio, 886 P.2d 714 (Colo. 1994). The question of
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whether medical treatment is reasonable and necessary is one of fact for determination by the ALJ. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo. App. 2002); Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo. App. 1999). The claimant bears the burden of proof to establish the right to specific medical benefits. HLJ Management Group, Inc. v. Kim, 804 P.2d 250 (Colo. App. 1990). We must uphold the ALJ’s factual determinations if supported by substantial evidence in the record. Section 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, 914 P.2d 411, 415 (Colo. App. 1995). In our view, the denial of the request for medical benefits in the form of surgery recommended by Dr. Conyers is based upon substantial evidence in the record.
The claimant maintains that the opinions of Dr. Mordick were the only basis upon which the ALJ has to support a finding that Dr. Conyers’ exploratory arthroscopy was not reasonably necessary. The claimant then contends that reliance upon the opinions of Dr. Mordick was error and therefore the ALJ’s ultimate determination to deny the requested surgery constituted reversible error.
We first disagree that the ALJ relied solely on the opinions of Dr. Mordick. It is true that the ALJ relied upon the opinions of Dr. Mordick in finding that another procedure to explore the wrist was not needed. It is also true that the ALJ found those opinions to be credible. However, the ALJ also relied upon other evidence of record in reaching his conclusion to deny the claimant’s request for medical benefits. The ALJ engaged in a three-pronged analysis in determining that another procedure was not reasonable or necessary.
First, the ALJ was unpersuaded that the MRI result was unreliable in predicting the presence of a TFC tear as claimed by Dr. Conyers. The ALJ noted that even Dr. Conyers admitted that such tests were at least 80 percent reliable in identifying the presence or absence of TFC tears.
The ALJ was also unpersuaded that the claimant’s clinical picture was as definitive and supportive of the need for surgery as stated by Dr. Conyers. Although Dr. Conyers reported that the claimant’s symptoms were “well localized” over the ulnar aspect of the wrist, the ALJ was persuaded that in January 2009 Dr. Mordick found the claimant’s pain was mostly associated with the pisiform incision site rather than the TFC, and that many of her ulnar symptoms had been present since 2001. Although this second prong of the ALJ’s analysis is connected with a report from Dr. Mordick it is not based on the opinions by Dr. Mordick but rather undisputed factual notations contained in the medical record.
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The ALJ next determined that Dr. Conyers did not credibly explain why he believed another surgery would improve the claimant’s symptoms when the 2003 surgery, including the TFC repair, had not resulted in any lasting relief. We also note that this is consistent with a determination made earlier in the ALJ’s order that the claimant had experienced 13 years of wrist pain and five operations with no significant improvement in her symptoms.
In our opinion, the ALJ’s three prong analysis demonstrates that the ALJ did not rely, as contended by the claimant, solely on the opinions of Dr. Mordick. In light of this evidence, we cannot say that the ALJ was compelled to award the proposed surgery even if the opinions of Dr. Mordick were excluded from consideration. As noted above, the claimant bears the burden of proof to establish the right to specific medical benefits. Here the claimant relied principally on the opinion of Dr. Conyers to establish the reasonableness and necessity of the proposed surgery. Even if Dr. Conyers’ testimony had been the only medical evidence presented the ALJ was under no obligation to credit such unrebutted testimony. Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo. App. 1993). In determining the facts, the ALJ is not required to accept unrefuted or uncontroverted medical evidence. Levy v. Everson Plumbing Co., 171 Colo. 468, 468 P.2d 34 (1970); Savio House v. Dennis, 665 P.2d 141
(Colo. App. 1983).
In our view, the first and third prongs of the ALJ’s analysis are based upon substantial evidence and are sufficient to affirm the ALJ’s determination that the claimant did not carry her burden of proof to demonstrate entitlement to the proposed surgery. Therefore, the ALJ’s determination is binding on us. Section 8-43-301(8), C.R.S.
We additionally note that the claimant’s psychiatric condition was considered by the ALJ in denying the requested surgery. The claimant argues that the ALJ erred in determining that the claimant’s symptoms were in some degree the result of psychiatric factors. The claimant contends there was not a scintilla of evidence presented in the hearing that the claimant had any ongoing psychological problems, which would form a basis for the denial of the proposed treatment. We disagree.
The ALJ was persuaded that the claimant’s symptoms were to some degree the result of psychiatric features not likely, as predicted by Dr. Mordick and Dr. Entin, to be improved by surgery unless there was a clear pathology. The ALJ made the following findings of fact with record support. Dr. Entin performed a psychiatric independent medical examination in 2002. Dr. Entin expressed the opinion that the claimant was not a good candidate for surgery from a psychological perspective, and cautioned prospective surgeons that they should only treat objective pathology and not the claimant’s subjective complaints. Exhibit I. at 1. Dr. Entin also opined that the degree of the patient’s pain
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behaviors evidenced symptom magnification. Exhibit I. Dr. Mordick was found by the ALJ to have persuasively established that there was no clear pathology as shown by the negative MR arthrogram results, the fact that the claimant’s ulnar symptoms had not abated despite being present since 2001 and the fact that the claimant did not report symptoms when her wrist was palpated during distraction.
The ALJ further found that Dr. Mitchell had placed the claimant at MMI on May 31, 2004 and at that time assessed chronic right wrist pain, a major depressive disorder, a pain disorder associated with psychological factors and medical condition, and opiate dependency. Exhibit K at 28. Dr. Mitchell saw the claimant for a monthly maintenance visit in May 4, 2009 and noted, “her wrist is non-tender to palpitation when she is distracted. Exhibit K at 1. Dr. Mitchell saw the claimant in March 2007 and noted that the claimant had been under a lot of stress lately and her wrist had been aching more. Exhibit K at 11.
We note that the ALJ is presumed to possess special expertise and competence in dealing with medical evidence. Thus, we presume that the ALJ is competent to evaluate evidence in cases of this character. Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941). In our view, the ALJ could draw a reasonable inference from the medical records of Dr. Mitchell, Dr. Entin and Dr. Mordick that psychological problems would militate against the proposed surgery. In our opinion, even on its own the psychological problems with the proposed surgery constitute substantial evidence supporting the ALJ’s determination to deny surgery.
Perhaps of even greater significance is our conclusion that the opinions of Dr. Mordick do constitute substantial evidence in support of the ALJ’s determination that the claim for the additional surgery should be denied. We are not persuaded by the claimant’s arguments that the opinions of Dr. Mordick must be viewed as unpersuasive. We note preliminarily that we may not interfere with the ALJ’s assessment of an expert witness’s testimony because the weight to be accorded that testimony is a matter exclusively within the discretion of the ALJ as fact finder. See Rockwell Int’I v. Turnbull, 802 P.2d 1182, 1183 (Colo. App. 1990).
Dr. Mordick stated that he could see no reason for re-exploration of the triangular fibrocartilage or any other procedure. Dr. Mordick noted the MRI and arthrogram and were normal. Dr. Mordick opined that no other procedure would have a reasonable chance for improvement of her symptoms. Exhibit L at 3; Tr. 77. Because the issue 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.
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The claimant contends that Dr. Mordick’s opinions are unpersuasive because they are based upon the fact that he did not believe that in 2000 the claimant had a triangular fibrocartilage tear and if she has one now that either it was caused by Dr. Conyers’ surgery in 2003 or by the type of work she did in 2006. The claimant further argues that Dr. Mordick indicated that the claimant may have aggravated her problems based upon her subsequent employment at Target in 2006. The claimant argues that Dr. Mordick did not know what type of work the claimant performed in 2006 for the subsequent employer. The claimant contends that there was no evidence that the type of work she performed in 2006 would cause the triangular fibrocartalage tear. The claimant further argues that if the arthroscopy is related to Dr. Conyers’ previous surgery then such additional surgery would be considered job related to the 1996 injury.
As we understand the claimant’s arguments, she contends that Dr. Mordick’s opinions are unpersuasive because the doctor was incorrect in his determinations involving the legal liability and causal connection and between the claimant’s subsequent work and Dr. Conyers’ previous surgery. The claimant contends that Dr. Mordick was wrong in supposing that if the need for the present surgery was caused by Dr. Conyers’ previous authorized surgery then the present surgery was not causally related to the industrial injury and the liability of the respondents. The claimant also argues that Dr. Mordick was again wrong in thinking that the claimant’s subsequent employment could be viewed as the cause of the claimant’s need for surgery. Therefore, the claimant concludes that the ALJ’s order dismissing the claim for surgery was not based upon substantial evidence because it relied on erroneous opinions authored by Dr. Mordick. We again disagree.
Here, because he had determined that the proposed surgery was not reasonable or necessary, the ALJ found there was no need to consider the respondents’ argument that the need for surgery was not causally related to the industrial injury. Therefore, in our view it is irrelevant whether the proposed surgery was related to Dr. Conyers’ previous surgery or to an aggravation suffered by the claimant at a subsequent employer. It is immaterial whether or not Dr. Mordick was correct in his analysis of the possible causes for the need for the proposed surgery. Consequently, we perceive no reason why the ALJ was compelled to disregard the opinions expressed by Dr. Mordick on the reasonableness and need for the proposed surgery. In our opinion, Dr. Mordick’s opinions constituted substantial evidence in support of the ALJ’s determination and therefore such determination is binding on us. Section 8-43-301(8), C.R.S.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 3, 2009 is affirmed.
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INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
ALEXANDRE COFFMAN, P O BOX 460892, AURORA, CO, (Claimant).
BALLY’S TOTAL FITNESS, Attn: MARY L. KLABACHA, CHICAGO, IL, (Employer).
ZURICH AMERICAN INSURANCE COMPANY, Attn: LIN BARNETT, SCHAUMBERG, IL, (Insurer).
ROBERT W. TURNER, LLC, Attn: ROBERT W. TURNER, ESQ., DENVER, CO, (For Claimant).
KITCH ASSOCIATES, Attn: MARSHA A. KITCH, ESQ., EVERGREEN, CO, (For Respondents).
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