Opinion
W.C. No. 4-355-715
April 22, 1999.
FINAL ORDER
The claimant seeks review of an order of Chief Administrative Law Judge Felter (ALJ) which denied his claim for additional temporary disability benefits. The claimant contends the ALJ erred in finding that he is at maximum medical improvement (MMI). We disagree, and therefore, affirm.
On September 23, 1997, the claimant suffered an admitted injury arising out of his employment for Roadway Express, Inc. (Roadway). Dr. Ladwig diagnosed the injury as a contusion of the tailbone, and referred the claimant to Dr. Hattem for further treatment. Dr. Hattem referred the claimant to Dr. Olson who placed the claimant at MMI on December 17, 1997, without permanent impairment.
On January 26, 1998, the claimant returned to his regular employment at Roadway. After working less than an hour, the claimant alleged a new injury to his low back while lifting a box. Dr. Olson opined that the claimant did not sustain a new injury and refused to rescind his determination of MMI. In an order dated June 10, 1998, the ALJ determined the claimant failed to prove a new injury.
On June 3, 1998, the claimant requested a Division-sponsored independent medical examination (IME) to contest Dr. Olson's determination of MMI. Following an examination on July 22, 1998, the IME physician, Dr. Aylor reported that the claimant had two specific episodes caused back pain, the first from a fall and "the second seemed to occur when he was lifting a box." However, Dr. Aylor stated that he could not account for the pain and limited movement exhibited by the claimant. Further, Dr. Aylor stated that he was unable to determine whether the claimant's symptoms were attributable to the first or second injury and whether the second injury required additional treatment. Dr. Aylor reexamined the claimant on July 27 and in a report dated July 28, 1998, indicated that he agreed with Dr. Olson's opinion that the claimant initially attained MMI on December 17, 1997, and recommended "maintenance care" for the first injury. Dr. Aylor also opined that the claimant is not at MMI for the second injury. During his subsequent deposition Dr. Aylor testified that if the claimant did not suffer a second injury, the claimant was at MMI. (Aylor depo. pp. 21-23, 43).
The claimant was also examined by Dr. Haney who opined that the claimant's initial injury was misdiagnosed as coccygodynia, and that claimant's pain complaints are consistent with an untreated disc disruption syndrome at L2-3 and L5-S1. Further, Dr. Haney opined that the disc disruption as was caused by the September 23 injury. Dr. Haney recommended surgery and referred the claimant to Dr. Bess for a surgical consultation.
The ALJ found that Dr. Haney's opinions were not credible or persuasive. Further, the ALJ found that the opinions of Dr. Bess and Dr. Haney did not rise to the level of clear and convincing evidence to overcome Dr. Aylor's opinions. Therefore, the ALJ determined the claimant failed to sustain his burden to overcome Dr. Aylor's determination of MMI, and denied the claim for additional temporary disability benefits. However, the ALJ granted the claimant's request for a change of physician to Dr. Haney and awarded future medical benefits consistent with Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). The claimant timely filed a Petition to Review.
I.
The claimant did not file a brief in support of his Petition to Review. However, after receipt of our acknowledgment letter dated March 10, 1998, the claimant filed a "Reply" brief. The claimant's Reply brief alleged that he was not required to "overcome" Dr. Aylor's MMI determination because Dr. Aylor did not place him at MMI. The respondents filed a "Motion to Strike" the Reply brief on grounds that it was untimely filed.
The claimant's counsel concedes that he timely received the briefing schedule, and that the claimant's failure to file an opening brief is solely attributable to him. Furthermore, there is no statute or rule permitting the filing of a "Reply" brief, especially after the matter has been transmitted to us for review. Section 8-43-301(4), C.R.S. 1998; Rule of Procedure III(D), 7 code Colo. Reg., 1101-3 at 19-20. To the contrary, our acknowledgment letter explicitly stated that it was not an "extension of time" to file a brief. Therefore, we agree with the respondents' contention that the claimant's Reply brief was untimely filed and grant the motion to strike it.
Nevertheless, even if we considered the Reply brief, it would not affect our disposition. At the commencement of the hearing on December 17, 1998, claimant's counsel noted internal inconsistencies in Dr. Aylor's IME reports. Then, the following exchange occurred.
ALJ: "That's why I am asking the question of Aylor's opinion of maximum medical improvement within the four corners of his report [dated July 28, 1998].
Claimant's counsel: "In essence, yes, I would agree with you that Aylor has put him at maximum medical improvement."
ALJ: "So you are seeking to overcome that with Dr. Haney's testimony?
Claimant's counsel: "Yes, Your Honor."
Thereafter, the claimant did not present evidence to prove that Dr. Aylor did not place the claimant at MMI. Rather, claimant's counsel reiterated that the issue was whether Dr. Aylor's opinion was overcome. (Tr. p. 6, 11. 8-11; p. 10). Under these circumstances, the claimant waived the argument raised in Reply brief. Kuziel v. Pet Fair, Inc., 931 P.2d 521 (Colo.App. 1996) (issue not raised to ALJ is considered waived on appeal). Consequently, we shall not consider the argument for the first time on appeal.
II.
The claimant's Petition to Review alleges the ALJ erroneously determined he is at MMI. The claimant also contends the ALJ's finding is not supported by substantial evidence in the record and that the ALJ's findings do not support the denial of benefits. In support, the claimant relies on the testimony of Dr. Haney and asserts that the ALJ's written findings are inconsistent with his oral findings. We reject these arguments.
The IME physician's determination of MMI is binding unless overcome by "clear and convincing evidence." Section 8-42-107(8)(b)(III), C.R.S. 1998. "Clear and convincing evidence" has been defined as evidence which demonstrates that it is "highly probable" the IME physician's rating is incorrect. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The question of whether the IME physician's determination of MMI has been overcome by "clear and convincing evidence" is a factual matter for resolution by the ALJ. Metro Moving Storage Co. v. Gussert, supra, Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995). We may not interfere with the ALJ's resolution of the issue if his determinations are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998.
Application of the substantial evidence standard requires that we view the evidence in a light most favorable to the prevailing party, and defer to the ALJ's credibility determinations, his resolution of conflicts in the evidence, and the plausible inferences he drew from the evidence. Metro Moving Storage Co. v. Gussert, supra. Furthermore, the ALJ may credit the opinion of one physician to the exclusion of another. Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992). Therefore, as stated by the respondents, our scope of our review is "exceedingly narrow." Metro Moving Storage Co. v. Gussert, 914 P.2d at 415.
Here, the record contains a direct conflict between Dr. Haney and Drs. Olson and Aylor concerning the nature and severity of the claimant's September injury. Within his sole prerogative, the ALJ resolved the conflict in favor of Drs. Olson and Aylor. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Therefore, it is immaterial that Dr. Haney's testimony contains evidence which, if credited, might support a different result.
Dr. Aylor testified that the diskogram results did not support Dr. Haney's conclusion that the cause of the claimant's pain symptoms is the L4-5 and L5-S1 bulging discs shown on an MRI. (Aylor depo. pp. 7, 8, 23, 24). Dr. Aylor also opined that the diskogram and CT scan results indicated that the discs were predominantly intact. Further, Dr. Aylor testified that the claimant underwent a whole bone scan which was negative for diskogenic pain. (Aylor depo. p. 33). Dr. Haney stated that the claimant's discography results were "somewhat equivocal." (Tr. p. 29, line 21). Thus, there is substantial evidence in the record to support the ALJ's finding that Dr. Haney's diagnosis and treatment recommendations are inconsistent with the diagnostic test results which Dr. Haney admitted were "equivocal."
To the extent the claimant's presentations to Dr. Aylor and Dr. Haney were similar, that evidence does not compel the conclusion that Dr. Aylor and Dr. Olson misdiagnosed the injury. Dr. Aylor opined that the claimant's pain complaints were out of proportion to the injury and inconsistent with his objective findings. Dr. Aylor also observed no evidence of any neurologic compromise. Therefore, we perceive no inconsistency between the claimant's presentation to Dr. Aylor and the ALJ's finding that Dr. Haney's diagnosis was not credible. (Finding of Fact 12).
Neither do we consider the ALJ's findings to be inconsistent with the order granting a change of physician to Dr. Haney. The ALJ is free to credit all, part or none of medical expert's testimony. Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992). The ALJ was not persuaded by Dr. Haney's opinion that the claimant requires surgical treatment to attain MMI. However, Dr. Aylor recommended Grover type medical benefits, and the ALJ found the claimant made a proper showing to receive those benefits from Dr. Haney.
Further, the fact that the ALJ's Specific Findings of Fact are more comprehensive than the ALJ's oral ruling does not afford us grounds to grant appellate relief. It is the ALJ's written order which is on review. Wait v. Jan's Malt Shoppe, 736 P.2d 1265 (Colo.App. 1987). Therefore, insofar as the ALJ's written order and oral findings are inconsistent, we presume that the ALJ reconsidered the matter before entering his written order, and decided to make additional findings of fact to support the award.
Finally, the claimant contends that after the hearing he discovered Dr. Aylor is professionally associated with Dr. Olson, and therefore, the claimant argues that Dr. Aylor was improperly selected to perform the Division-sponsored IME. The claimant may have newly discovered evidence which justifies reopening the matter. Consequently, the claimant may file a petition to reopen based upon error or mistake, and obtain reopening if he makes the requisite evidentiary showing. However, that possibility does not preclude us from proceeding to adjudicate the matter based upon the evidence and issues as they were presented to the ALJ at the time of the hearing. See London v. El Paso County, 757 P.2d 169 (Colo.App. 1988).
IT IS THEREFORE ORDERED that the ALJ's order dated January 4, 1999, is affirmed.
IT IS FURTHER ORDERED that the respondents' Motion to Strike the claimant's Reply brief is granted.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain ______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed APRIL 22, 1999 to the following parties:
Ronald Calvert, 364 S. Ironton St., Apt. 417, Aurora, CO 80012
Roadway Express, Inc., Attn: Bob Thomson, 14700 Smith Rd., Aurora, CO 80011
Helmsman Management Services, Gallagher Bassett Services, Attn: Tawna Jones, P.O. Box 70003, Anaheim, CA 92825
Brad R. Irwin, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For Claimant)
Ted A. Krumreich, Esq., 1225 17th St., 28th floor, Denver, CO 80202 (For Respondents)
BY: AP