W.C. Nos. 4-601-476 4-724-582.Industrial Claim Appeals Office.
November 17, 2009.
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FINAL ORDER
The claimant and respondents seek review of an order of Administrative Law Judge Cain (ALJ) dated July 13, 2009. The ALJ denied the claimant’s petition to reopen, but determined that the claimant overcame the apportionment of his permanent partial disability payments imposed by a Division-sponsored independent medical examination (DIME) physician. We affirm.
Several of the ALJ’s findings are summarized as follows. The claimant sustained an industrial injury to his low back on January 8, 2004 (W.C. No. 4-601-476) while working for the respondent employer Merrill Inc. (Merrill) as a driver and delivery person. The claimant experienced a sudden onset of low back pain while pulling a cart off an elevator. Dr. Brogmus treated the claimant for his injury. Dr. Brogmus diagnosed a sprain or strain and released the claimant to full duty. The claimant had increased pain and stiffness in his lower back. Dr. Brogmus later noted that an MRI of the claimant’s lumbar region showed disc herniation, but reported that the claimant was doing well. Dr. Brogmus recommended a TENS unit for the claimant. On March 30, 2004 Dr. Brogmus placed the claimant at maximum medical improvement and released him to full duty with no permanent impairment. Merrill and its insurer filed a final admission of liability consistent with Dr. Brogmus’s findings, which the claimant did not challenge. The claimant testified that he did not challenge the final admission because he felt fully recovered. He also stated that he did not return to Dr. Brogmus after the final admission
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was filed because he did not believe he needed further treatment. He also felt able to return to work at full duty.
The claimant started his employment with the respondent employer Haiston Oil Company (Haiston) in May 2006 and worked as a driver. The claimant sustained another admitted injury on April 29, 2007 when he experienced severe stabbing pain to his back while securing a fuel cap. He saw Dr. Basow. The claimant told Dr. Basow he had a chronic level of low back pain and denied any reinjury at his new job. The claimant later testified that he misrepresented his history to Dr. Basow when he told the doctor he did not suffer a new injury. The claimant also stated that he did not want to file a claim against Haiston because he feared losing his job. The claimant had a sudden and severe increase in his low back pain while at home around May 12, 2007. He was seen by Dr. Benz, who opined that the claimant had recovered from his 2004 injury and sustained a new disc herniation. Dr. Benz noted that the claimant had been unable to return to work and recommended a discectomy, which he performed on July 3, 2007. The authorized treating physician for the claimant’s last injury, Dr. Thompson, placed the claimant at maximum medical improvement on July 15, 2008. Dr. Thompson gave the claimant a 29 percent whole person impairment rating with no apportionment.
Dr. Gellrick conducted a DIME. Dr. Gellrick ended up with an unapportioned whole person rating of 29 percent whole person impairment for the 2007 injury and an apportioned whole person rating of 24 percent for the 2007 injury. Dr. Gellrick believed that apportionment needed consideration.
Dr. Ryan conducted an independent medical examination at the claimant’s request. Dr. Ryan opined that the claimant suffered no impairment prior to his last injury and, also, that there was not medically documented pain and rigidity lasting six months after the claimant’s 2004 injury.
The ALJ found that the claimant met his burden to show that the DIME physician, Dr. Gellrick, incorrectly apportioned the claimant’s impairment rating. However, the ALJ was not persuaded that the claimant sustained a worsened condition due to his 2004 injury. The ALJ therefore ordered Haiston’s insurer to pay permanent partial disability benefits without apportionment and denied the claimant’s petition to reopen his claim for his 2004 injury.
I.
The claimant makes no arguments in support of his petition to review the ALJ’s denial of his request to reopen his claim for his 2004 injury and advises that he filed his petition to review as a precautionary measure. In any event, we affirm the ALJ’s decision not to reopen the claim concerning the claimant’s 2004 injury.
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Section 8-43-303 C.R.S. 2009 authorizes an ALJ to reopen “any award” on the grounds of, among other things, error, mistake, or a change in condition. Heinicke v. Industrial Claim Appeals Office, 197 P.3d 220, (Colo. App. 2008); Cordova v. Industrial Claim Appeals Office, 55 P.3d 186, 189 (Colo. App. 2002). A change in condition refers either “to a change in the condition of the original compensable injury or to a change in claimant’s physical or mental condition which can be causally connected to the original compensable injury.” Chavez v. Industrial Comm’n, 714 P.2d 1328, 1330 (Colo. App. 1985).
The reopening authority granted ALJs by section 8-43-303 “is permissive, and whether to reopen a prior award when the statutory criteria have been met is left to the sound discretion of the ALJ.”Cordova, 55 P.3d at 189. The party seeking reopening bears “the burden of proof as to any issues sought to be reopened.” Section 8-43-303(4), C.R.S. 2008. In the absence of fraud or clear abuse of discretion, the ALJ’s decision concerning reopening is binding on appeal. Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082, 1084 (Colo. App. 2002). An abuse of discretion occurs when the ALJ’s order is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law Id.
The ALJ credited the opinions and reports of Dr. Ryan, together with the reports of Drs. Benz and Thompson to find that the claimant’s 2007 injured caused the claimant’s impairment and need for treatment. There is record support for these findings. See, for example, Exhibit 14 at 117; Exhibit 16 at 184-86; Exhibit 30 at 296-97; Tr. at 70-73. We therefore uphold the ALJ’s decision not to reopen the claim regarding the claimant’s 2004 injury.
II.
Haiston and its insurer assert that the ALJ erred in finding that the claimant overcame the DIME’s opinion that the claimant’s permanent partial impairment should be apportioned between the 2004 and 2007 injuries. Section 8-42-107(8)(c), C.R.S. 2009, provides that the DIME physician’s finding of maximum medical improvement and medical impairment is binding unless overcome by clear and convincing evidence. “Clear and convincing evidence” is defined as evidence which is stronger than a preponderance, is unmistakable and is free from serious or substantial doubt. DiLeo v. Koltnow, 200 Colo. 119, 613 P. 2d 318 (1980). In other words, in order to overcome the DIME report, there must be evidence which proves that it is highly probable that the DIME physician’s opinions are incorrect. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). The question whether the party challenging the DIME physician’s determinations has overcome the report by clear and convincing evidence is generally one of fact for determination by the ALJ. McLane Western Inc. v. Industrial
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Claim Appeals Office, 996 P.2d 263 (Colo. App. 1999). Consequently, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2009. The substantial evidence test requires us to view the evidence in a light most favorable to the prevailing party, and to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the record. Metro Moving and Storage Co. v. Gussert, supra.
Resolving conflicting inferences, which could be drawn from the DIME physician’s rating, is solely in the ALJ’s discretion. Id. This standard of review is deferential and the scope of our review in this regard is “exceedingly narrow.” Id. at 414. Under this standard of review, it is also the ALJ’s sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. We may not substitute our judgment for that of the ALJ regarding credibility matters unless there is such hard, certain evidence contradicting the ALJ’s determination that it would be error as a matter of law. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
In support of its contention Haiston notes that for injuries before July 1, 2008 any preexisting medical impairment must be apportioned. See
Workers’ Compensation Rule of Procedure Rule 12-3(A), 7 Code. Colo. Reg. 1101-3 (2009). Haiston refers to the ALJ’s finding that the claimant’s back and pain symptoms between the times of his injuries were not causally related to the claimant’s 2004 injury, as well as crediting Dr. Ryan’s opinion that apportionment is not appropriate because the claimant did not injure his discs in the 2004 injury. Haiston infers that the ALJ should have apportioned the claimant’s prior back and pain symptoms regardless of whether or not they were found to result from an industrial injury. However, the ALJ was persuaded that the claimant had no preexisting impairment prior to his 2007 injury. This determination is supported by the record and binding in our review. Dr. Brogmus placed the claimant at maximum medical improvement for his 2004 injury with no permanent impairment. Exhibit 4 at 52. The claimant testified that prior to his last injury in 2007 he felt “as perfect as a person can feel” and was able to do his job “to full capacity.” Tr. at 34. He further indicated that before his 2004 injury he had only “occasional aches and pains.” Tr. at 18. Dr. Ryan testified that the MRI of the claimant in March 2004 showed degenerative changes, but no evidence of compressed nerve structures or disc herniation. Tr. at 75. He further opined that truck drivers such as the claimant commonly experience back pain, but muscle strains and pains do not necessarily indicate permanent impairment. Tr. at 80.
Haiston further asserts that the facts of the case do not support the ALJ’s determination that the claimant overcame the DIME physician’s opinion about apportionment and refers to various portions of the record that can be construed to support the DIME physician’s opinion. Haiston’s arguments essentially request that we reweigh the evidence on review. We have no authority to substitute our judgment for that
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of the ALJ concerning the sufficiency and probative weight of the evidence. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo. App. 1990).
There is ample support in the record for the ALJ’s decision to overturn the DIME physician’s opinion that it was proper to apportion the claimant’s permanent partial disability impairment between his two injuries. For example, the ALJ credited the following evidence in support of his determination that apportionment was not appropriate under the circumstances. The claimant testified that he could return to relatively heavy work after attaining maximum medical improvement for his 2004 injury. The claimant testified that after being placed at maximum medical improvement on March 30, 2004 by Dr. Brogmus he felt he was “perfectly cured” and indicated he had no problems performing his job. Tr. at 23-24. Dr. Ryan opined that the claimant’s ability to return to heavy work, his intermittent symptoms, and lack of medical treatment all indicted that the claimant suffered no residual impairment from his 2004 injury. Tr. at 70, 80, 103, 107, 109, 114. The claimant sought treatment for his low back only once between 2004 and 2007, a period during which the claimant frequently obtained treatment for his neck and upper back. Exhibit 26. According to Dr. Ryan, the claimant did not exhibit pain or rigidity when placed at maximum medical improvement for his first injury. Tr. at 111-12. Moreover, the claimant was not likely to be rigid if he could touch his toes and bend backward as he did. Tr. at 71-72. Neither did the claimant’s intermittent symptoms and brief flare-ups demonstrate medical documentation of six months of pain and rigidity pursuant to Table 53 for the purposes of imposing an impairment rating. 78-80, 109-10. Dr. Thompson and Dr. Ryan credibly opined that apportionment was not appropriate. Tr. at 67, 105, 112; Exhibit 30 at 296-97; Exhibit 16 at 186.
The ALJ’s findings and conclusions are supported by substantial evidence and by applicable law. See § 8-43-301(8), C.R.S. 2009. Haiston’s arguments to the contrary do not persuade us to disturb the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 13, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
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DAVID I GOCHNOUR, LOVELAND, CO, (Claimant).
MERRILL, INC. DBA HAWTHORNE MAINTENANCE SUPPLY, Attn: RICHARD MERRILL, C/O: AND/OR HAISTON OIL COMPANY, INC., FORT COLLINS, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D. FLEWELLING, ESQ., DENVER, CO, (Insurer).
LAW OFFICE OF MATT BUSCH, Attn: W MATT BUSCH, JR., LOVELAND, CO, (For Claimant).
RITSEMA LYON, PC, Attn: JOEL M POLLACK, ESQ., DENVER, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: MS PAULA FLEMING, DENVER, CO, (Other Party).
RUEGSEGGER SIMONS SMITH STERN LLC, Attn: DAVID L SMITH, ESQ./MICHELLE STARK CAREY, ESQ., DENVER, CO, (Other Party 2).
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