NUNNALLY v. EASTMAN KODAK COMPANY, W.C. No. 4-720-435 (5/28/2009)


IN THE MATTER OF THE CLAIM OF MARIA NUNNALLY, Claimant, v. EASTMAN KODAK COMPANY, Employer, and SELF-INSURED, Respondent.

W.C. No. 4-720-435.Industrial Claim Appeals Office.
May 28, 2009.

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated December 30, 2008, that determined the claimant had failed to overcome the Division-sponsored independent medical examination (DIME) physician’s opinion on causation. We affirm.

The claimant worked for the employer from 1979 until 2007 in various production positions. The claimant suffered from lumbar spine pain for a number of years. The claimant testified that on March 5, 2007 she suffered an occupational disease to her lower back as a result of her repetitive lifting activities while working for the employer. The employer referred the claimant to Dr. Thompson. Dr. Thompson eventually placed the claimant at maximum medical improvement and assigned the claimant a 20 percent whole person impairment rating for her March 5, 2007 occupational disease. The respondents filed a final admission of liability consistent with Dr. Thompson’s 20 percent whole person impairment rating. The claimant objected to the admission and sought a DIME. The DIME physician opined that the claimant did not suffer a work-related injury. The DIME physician specifically concluded that the claimant’s back condition was not caused or substantially altered by her work activities. The respondents filed a new final admission for zero percent impairment based upon the opinion of the DIME physician. The ALJ found that the claimant had failed to produce clear and convincing evidence to establish that it was highly probable that the DIME physician’s causation determination was incorrect. Therefore, the ALJ dismissed the claim for additional benefits.

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On appeal the claimant argues that the ALJ erred in applying the clear and convincing evidence standard instead of the preponderance of the evidence standard in deciding the issues of causation and compensability. We are not persuaded that the ALJ erred as a matter of law.

It is well established that the DIME physician’s medical impairment rating is binding unless overcome by “clear and convincing evidence.” Section 8-42-107(8)(c), C.R.S. 2008; Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). “Clear and convincing evidence” is evidence which proves that it is “highly probable” the DIME physician’s opinion is incorrect. Metro Moving Storage Co. v. Gussert, supra. Consequently, the courts have held that the DIME physician’s determination that an impairment is or is not caused by the industrial injury is also subject to the clear and convincing evidence standard. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002); Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590
(Colo.App. 1998).

Here the DIME physician opined that the claimant’s chronic back pain was not caused or substantially altered by her work activities for the employer. A DIME physician’s determinations concerning causation of an injury to an industrial accident are binding unless overcome by clear and convincing evidence. Leprino Foods Co. v. Industrial Claim Appeals Office of State, 134 P.3d 475, (Colo.App. 2005). Here the ALJ found, and the claimant does not contest, that the claimant failed to overcome by clear and convincing evidence that the opinion by the DIME physician that the back condition was not caused by her work activities for the employer.

We acknowledge that the threshold question of whether the claimant has sustained a compensable injury in the first instance is one of fact that the ALJ must determine, if contested, under the preponderance of the evidence standard. See Leprino Foods Co. v. Industrial Claim Appeals Office supra, citing Pacesetter Corp. v. Collett, 33 P.3d 1230
(Colo.App. 2001). Consequently, the DIME physician’s opinion on this issue is not entitled to special or presumptive weight. Faulkner v. Indus. Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000).

Here, unlike the situation in Faulkner, the existence of a compensable injury is not in question. Indeed, the employer admitted, in its Final Admissions of Liability, that the claimant sustained a compensable occupational disease and the employer had even paid permanent partial disability benefits. The issue presented to the DIME physician and later to the ALJ was the extent of this injury. The DIME physician squarely addressed this question and although noting the any activity could cause a temporary exacerbation of the claimant’s intractable pain, concluded that the claimant’s back condition was not caused by her work activities for the employer. Therefore, the issue of the cause of

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claimant’s back symptoms was properly before the DIME physician, and his opinions on the causation issue became binding unless overcome by “clear and convincing evidence. Consequently we perceive no error in the ALJ’s applying the clear and convincing evidence standard instead of the preponderance of the evidence in deciding the causation issue before him.

IT IS THEREFORE ORDERED that the ALJ’s order issued December 30, 2008 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ Curt Kriksciun

______________________________ Thomas Schrant

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MARIA NUNNALLY, GREELEY, CO, (Claimant).

EASTMAN KODAK COMPANY, Attn: MARTHA ALLEMAN, C/O: WORKERS’ COMPENSATION, ROCHESTER, NY, (Employer).

RING ASSOCIATES, PC, Attn: BOB L RING, ESQ., FORT COLLINS, CO, (For Claimant).

DWORKIN, CHAMBERS, WILLIAMS, YORK, Attn: BENSON EVANS, PC, C/O: DAVID J. DWORKIN, ESQ., DENVER, CO, (For Respondents).

GALLAGHER BASSETT SERVICES, Attn: LANDON WALLIS, ENGLEWOOD, CO, (Other Party).

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