W.C. No. 4-810-589.Industrial Claim Appeals Office.
July 29, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones dated February 22, 2011 that determined the respondents had established by clear and convincing evidence that the opinion of the physician conducting the Division-sponsored Independent Medical Examination (DIME) was incorrect. We affirm.
The claimant suffered an industrial injury. The claimant complained of symptoms in her right shoulder caused by cleaning commercial aircraft cabins. Dr. Chythlook diagnosed shoulder strain and bursitis. The claimant later underwent a MRI of her shoulder which showed a “full thickness tear of the anterior-mid fibers of supraspinatus tendon.”
Dr. Burris was an authorized treating physician. Dr. Burris opined that the cause of the claimant’s condition remained unclear and he did not believe the claimant’s job duties would cause a rotator cuff tear. Dr. Burris observed pain complaints, despite normal examination and normal vital signs. Dr. Burris could find no objective findings and returned the claimant to full duty. Dr. Burris determined that the claimant reached maximum medical improvement (MMI) with no impairment and no permanent restrictions on April 5, 2010.
The claimant underwent a DIME on August 25, 2010. The DIME physician opined that the claimant was not at MMI based upon her opinion that the claimant’s job duties caused “the tendon tear”. The respondents sought to overcome the DIME
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physician’s conclusion that the claimant was not at MMI. ALJ Jones concluded that the respondents had established by clear and convincing evidence that the DIME physician’s opinion on MMI was incorrect and the claimant had reached MMI on April 5, 2010.
I.
The claimant has attached to her Brief in Support of Petition to Review a copy of a full Findings of Fact, Conclusions of Law, and Order dated January 14, 2011 entered by ALJ Henk on January 14, 2011. The claimant has asked us to take judicial notice of it. We note that at the January 12, 2011 hearing before ALJ Jones, the claimant had requested that a summary order dated December 15, 2010 issued by ALJ Henk on the same matter be considered and the respondents’ application for hearing be stricken because of the order. In the summary order, ALJ Henk granted the claimant’s request for right shoulder rotator cuff surgery and granted certain temporary total disability benefits. ALJ Jones denied the motion to strike the hearing, but did take judicial notice of the summary order.
The claimant in her brief refers to findings of fact made by ALJ Henk in her order. The claimant’s obvious intent in reciting these findings is to demonstrate that ALJ Jones erred in determining that the opinion of the DIME physician had been overcome. We note that the two ALJs looking at similar, if not the same, medical records came to different conclusions as to which evidence was persuasive. We further note that the issues examined by the two ALJs are intertwined.
To the extent that the claimant may be arguing that issue preclusion applies, we disagree. At the time the matter came before ALJ Jones, there was no final judgment on the merits by ALJ Henk in the prior proceeding. Therefore, issue preclusion would not apply Sunny Acres Villa, Inc. v. Cooper, 25 P.3d 44, 47 (Colo. 2001). Further, in our view, ALJ Jones was not bound by the findings made by ALJ Henk nor are we bound to conclude that ALJ Jones’ determination is not supported by the record because it differs from the determination reached by ALJ Henk.
The orders of ALJ Jones and ALJ Henk may be conflicting and may present difficulties for the litigants. However, that issue is not before us. The narrow issue before us is whether substantial evidence supports ALJ Jones’s determination that the respondents had overcome the opinion of the DIME physician by clear and convincing evidence. We now address that issue.
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II.
The claimant argues that ALJ Jones erred as a matter of law by finding the respondents had presented evidence sufficient to overcome the DIME physician’s conclusion that the claimant was not at MMI. The claimant concedes that it might be argued that the respondents had produced evidence to overturn the DIME physician’s opinion if the standard was mere probability. However, the claimant argues that the respondents did not meet the higher standard of clear and convincing evidence required by § 8-42-107(8)(b)(III), C.R.S.
When challenging opinions rendered by a DIME physician, litigants bear a high burden of proof. If a DIME physician has rendered an opinion regarding MMI or medical impairment, those opinions must be overcome by clear and convincing evidence. § 8-42-107(8)(b)(III) — (c), C.R.S.; Cordova v. Industrial Claim Appeals Office, 55 P.3d 186, 189 (Colo. App. 2002); Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590, 592 (Colo. App. 1998) see also Leprino Foods Co. v. Industrial Claim Appeals Office, 134 P.3d 475, 482 (Colo. App. 2005) (DIME physician’s opinions concerning MMI and permanent medical impairment are given presumptive effect and are binding unless overcome by clear and convincing evidence).
“Clear and convincing evidence means evidence which is stronger than a mere `preponderance;’ it is evidence that is highly probable and free from serious or substantial doubt.” Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 414 (Colo. App. 1995). Therefore, the party challenging a DIME physician’s conclusion must demonstrate that it is “highly probable” that the DIME impairment rating or MMI finding is incorrect. Qual-Med, Inc., 961 P.2d at 592. A party has met the burden of establishing that a DIME impairment rating and diagnosis are incorrect if the party has demonstrated that the evidence contradicting the DIME is “unmistakable and free from serious or substantial doubt.” Leming v. Industrial Claim Appeals Office, 62 P.3d 1015, 1019 (Colo. App. 2002).
The court of appeals has determined the following regarding the standard of review we are to follow in these matters. Whether a party has met the burden of overcoming a DIME by clear and convincing evidence is a question of fact for the ALJ’s determination. The evidentiary standard of proof applied by the ALJ is not the same as the standard of review applied by the Panel. The Panel must apply the substantial evidence test in determining whether the evidence supports the ALJ’s findings of fact. Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 414 (Colo. App. 1995).
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Therefore we uphold the factual determinations of the ALJ if the decision is supported by substantial evidence in the record. Section 8-43-301 (8), C.R.S.; Christie v. Coors Transp. Co., 919 P.2d 857, 860 (Colo. App. 1995), aff’d, 933 P.2d 1330 (Colo. 1997). This standard of review is deferential and the scope of our review is “exceedingly narrow.” Metro Moving Storage supra. In our view there is substantial evidence which supports the finding made by ALJ Jones that the respondents had overcome the opinion of the DIME physician by clear and convincing evidence.
The ALJ made the following pertinent findings of fact with record support. Dr. Bisgard noted substantial differences found by physicians in the claimant’s range of shoulder motion. Dr. Bisgard had no explanation for the difference other than lack of effort. Exhibit E at 21. Dr. Bisgard opined that given the claimant’s age and the findings on the MRI scan, it was very likely that the tear was present prior to the onset of her symptoms. Exhibit E at 21. Dr. Bisgard testified regarding the provisions of Colorado’s Medical Treatment Guidelines, which provide that the occupational relationship of rotator cuff tears can be established by proof of a sudden trauma to the shoulder or chronic overuse with repetitive overhead motion or heavy lifting. Exhibit F. The claimant’s work activities and onset of shoulder pain were inconsistent with the requirements of the Guidelines. Tr. at 25, 27. Dr. Bisgard testified that the claimant’s job duties did not cause, aggravate or exacerbate to some substantial degree the claimant’s rotator cuff tear. Tr. at 25-28. Dr. Bisgard further testified that the opinion of the DIME physician that the claimant was not at MMI was not supported by the medical records. Tr. at 30-35. ALJ Jones found Dr. Bisgard’s opinions to be credible and persuasive.
The ALJ made extensive findings concerning range of motion findings found in the medical reports including those of Dr. Chythlook and Dr. Burris. The ALJ noted normal range of motion findings and restricted range of motion findings. The ALJ credited Dr. Bisgard’s testimony that this kind of alternating between normal range of motion and restricted range of motion are not consistent with an acute traumatic rotator cuff tear and that the DIME physician appeared to be unaware of this discrepancy. Tr. at 33.
The ALJ relied upon the opinions of the authorized treating physician, Dr. Burris. As noted above Dr. Burris, at least in some reports, stated that he did not believe the claimant’s job duties would cause a rotator cuff tear. He returned the claimant to full duty and determined that the claimant reached MMI with no impairment. Exhibit 1 at 9-18. The claimant draws our attention to certain other reports of Dr. Burris indicating that the claimant had been provisionally placed at MMI only because she could not participate in any surgical intervention because of her past presentation and need for a psychological
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evaluation. However, to the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). In our opinion, it was within ALJ Jones’ discretion to credit only certain parts of the reports from Dr. Burris.
The present case turned in large part upon the weight and credibility to be assigned expert testimony. This, of course, is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). We are aware that the opinions of Dr. Failinger, the DIME physician, and even certain sections of the reports from Dr. Burris could lead a fact finder to different conclusions. We note that ALJ Henk in her order reached different conclusions.
However, we are bound by the factual determinations made by ALJ Jones, even when the evidence is conflicting and could have supported a contrary result. Cary v. Chevron U.S.A., Inc., 867 P.2d 117, 119 (Colo. App. 1993). In our view, the testimony and opinions of Dr. Bisgard, Dr. Burris and the reports of Dr. Chythlook constitute substantial evidence supporting the ALJ’s factual determination. We are therefore bound by the factual determinations made by ALJ Jones. Section 8-43-301 (8), C.R.S.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 22, 2011 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Dona Rhodes
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PILAR PULLIAM, COMMERCE CITY, CO, (Claimant).
SERVISAR USA, INC., Attn: BETSY ROSSMAN, C/O: INS RISK MGMT SUPERVISOR, HOUSTON, TX, (Employer).
ACE AMERICAN INSURANCE COMPANY, Attn: EVELYN RADEMACHER, C/O: ESIS, TAMPA, FL, (Insurer).
THE FRICKEY LAW FIRM, Attn: REBECCA L. BRADLEY, ESQ., DRIVE, #250, aurora, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK, PC, Attn: RICHARD A. BOVARNICK, ESQ., DENVER, CO, (For Respondents).
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