Opinion
W.C. No. 4-660-149.
June 30, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated November 13, 2007 that found the Division Independent Medical Examination (DIME) physician's revised opinion after reviewing a video was the claimant's correct impairment rating and that opinion had not been overcome by clear and convincing evidence. We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant sustained an admitted injury to his neck. Dr. Sparr found the claimant was at maximum medical improvement (MMI) and rated the claimant as having a 28 percent whole person medical impairment. The respondents requested a DIME and the DIME physician authored a report opining that the claimant had 19 percent whole person impairment, consisting of nine percent under Table 53, another nine percent for cervical range of motion and four percent for sensory loss in the upper extremity. The respondents obtained a surveillance video showing the claimant playing golf and sought to overcome the DIME physician's opinion. After reviewing the surveillance video the DIME physician revisited his rating and concluded that parts of the original rating were still correct, but he invalidated the range of motion component and concluded that the claimant had a new rating of 11 percent whole person. The ALJ determined that when the DIME physician changed his opinion as to the impairment rating the revised opinion became the DIME physician's opinion. The ALJ concluded that DIME physician's opinion as to the impairment rating had not been overcome by clear and convincing evidence.
I.
On appeal, the claimant concedes that the respondents overcame the first opinion of the DIME physician by clear and convincing evidence. However, in our view the case is not one in which the case could be resolved by an initial determination of whether the DIME physician's opinion had been overcome by clear and convincing evidence. Instead, the case involved a threshold determination of what constituted the actual opinion of the DIME physician. Here, the DIME physician changed his opinion concerning impairment and the ALJ resolved the ambiguity and determined the physician's true opinion. The ALJ determined that when the DIME physician changed his opinion as to the impairment rating during his deposition the new rating then became the DIME physician's opinion as to the impairment rating. The ALJ then determined that the burden shifted to the claimant to prove by clear and convincing evidence that the new impairment rating was incorrect. Findings of Fact, Conclusions of Law, and Order at 2, ¶ 15.
The claimant contends the ALJ erred in requiring that the DIME physician's true opinion as found by the ALJ must be overcome by clear and convincing evidence. The claimant argues that once the DIME physician's opinion has been overcome by clear and convincing evidence the opinion of the DIME physician had no more weight than any other medical opinion and the ALJ should determine permanent partial disability using a preponderance of the evidence standard. We are not persuaded that the ALJ erred.
The DIME physician's findings concerning the date of MMI and the degree of medical impairment are binding on the parties unless overcome by clear and convincing evidence. Sections 8-42-107(8)(b) (III) (8)(c), C.R.S. 2007. If the DIME physician offers ambiguous or conflicting opinions concerning MMI or impairment, it is for the ALJ to resolve the ambiguity and determine the DIME physician's true opinion as a mater of fact. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000); Stephens v. North Air Package Express Services, W. C. No. 4-492-570 (February 16, 2005), affd, Stephens v. Industrial Claim Appeals Office (Colo.App. 05CA0491, January 26, 2006) (not selected for publication). In so doing, the ALJ should consider all of the DIME physician's written and oral testimony. Lambert Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656, 659 (Colo.App. 1998). A DIME physician's finding of MMI and permanent impairment consists not only of the initial report, but also any subsequent opinion given by the physician. See Andrade v. Industrial Claim Appeals Office, 121 P.3d 328 (Colo.App. 2005) (ALJ properly considered DIME physician's deposition testimony where he withdrew his original opinion of impairment after viewing a surveillance video); see also, Jarosinski V. Industrial Claim Appeals Office, 62 P.3d 1082 (Colo.App. 2002) (noting that DIME physician retracted original permanent impairment rating after viewing videotapes showing the claimant performing activities inconsistent with the symptoms and disabilities she had reported). We may not interfere with the ALJ's resolution of these issues if supported by substantial evidence. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra.
Here, the ALJ determined with record support that subsequent to the DIME physician's original report the DIME physician reviewed the surveillance video of the claimant and concluded that what he observed on the video was inconsistent with what he observed during his examination of the claimant. Kawasaki Depo. (8/17/2007) at 37-38. The DIME physician opined that swinging a golf club required almost full cervical range of motion and some cervical flexion, which called into question the range of motion measurement that was made in the examination of the claimant. Kawasaki Depo. (8/17/2007) at 30 34. In addition to the issue of cervical range of motion, the DIME physician also found that the claimant's lack of apparent pain behavior in the surveillance video was noteworthy. Kawasaki Depo. (8/17/2007) at 26. The DIME physician, after reviewing the surveillance video, revisited his rating and invalidated the range of motion, which resulted in a new rating that was 11 percent whole person. Thus, there is record support for the ALJ determination that the DIME physician changed his initial 19 percent rating to 11 percent whole person and that the 11 percent rating then became the DIME physician's opinion as to the claimant's impairment rating. The ALJ's determination represents a plausible interpretation of the DIME physician's opinion as reflected in his deposition. Therefore, we may not interfere with the ALJ's findings concerning the DIME physician's determinations regarding impairment.
As noted above if a DIME physician issues conflicting or ambiguous opinions concerning the claimant medical impairment, it is the ALJ's province to determine the DIME physician's true opinion as a matter of fact. Once the ALJ determines the DIME physician's opinion concerning impairment, the party seeking to overcome that opinion bears the burden of proof by clear and convincing evidence. Clark v. Hudick Excavating, Inc., W. C. No. 4-524-162 (November 5, 2004). In Fera v. Resources One, LLC, D/B/A Terra Firma, W. C. No. 4-589-175 (May 25, 2005) aff'd, Resources One, LLC v. Industrial Claim Appeals Office 148 P.3d 287 (Colo.App. 2006) the panel found that when the ALJ determined the DIME physician's true opinion on MMI, the ALJ did not err in assigning the respondents the burden of proof to overcome by clear and convincing evidence the DIME physician's finding that MMI had not been attained. See also Viloch v. Opus Northwest, LLC, W. C. No. 4-514-339 (June 17, 2005); Gurule v. Western Forge, W. C. No. 4-351-883 (December 26, 2001).
Further, the argument of the claimant that the ALJ improperly shifted the burden of proof to him to overcome the DIME physician's opinion has previously been rejected in the situation where the deposition testimony of the DIME physician is properly considered as part of the DIME physician's overall "finding." Stephens v. North Air Package Express Services, supra. It follows that in our opinion the ALJ did not err in applying the burden of proof.
II.
The claimant contends that the order of the ALJ and previous orders of the panel consistent with the ALJ's order are not in accordance with the court of appeal's decision in Andrade v. Industrial Claim Appeals Office, supra. The claimant has not referenced what specific cases of the panel he considers to have been in error. However, we assume that the claimant disagrees with the panel orders listed above. The claimant argues that under Andrade, the panel erred in prior decisions in deciding that when a DIME physician provides two different opinions, the ALJ should decide which opinion is the "DIME's opinion." Instead the claimant contends that under Andrade both opinions are the "DIME's opinion." We disagree.
We first note that Andrade offers a similar fact pattern to the present case under consideration. In Andrade, the DIME physician opined that the claimant had suffered permanent impairment of his low back and his left shoulder as a result of the industrial injury. The DIME physician assigned a whole person impairment rating of 22 percent. However, the DIME physician modified his initial report after viewing a surveillance videotape of the claimant and the ALJ determined that the employer had presented clear and convincing evidence sufficient to overcome the DIME physician's opinion. Accordingly, the ALJ denied the claim for permanent disability benefits. The panel affirmed and the court of appeal affirmed the panel's order.
The court in Andrade rejected the claimants contention that his due process rights were violated when the ALJ relied on the DIME physician's change of opinion after viewing a surveillance video that was not provided to the physician at the time of the DIME examination. The due process argument is similar to the one made by the claimant in the present case and discussed below. The Andrade court determined that the DIME physician's "finding" consists not only of the initial report, but also any subsequent opinion given by the physician. Thus, the Andrade court found that the ALJ could properly consider the DIME physician's deposition testimony, during which he withdrew part of his original opinion after viewing the surveillance video. As we read Andrade, the court of appeals held that when the DIME physician offers conflicting opinions by report and by deposition, the report and the deposition must be considered together. In our opinion, the prior panel cases are consistent with Andrade. Further, we see no principled distinction between the judicially approved procedure followed by the ALJ in Andrade and the procedure followed by the ALJ in the present case.
In addition in Lambert Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656 (Colo.App. 1998), the DIME physician opined that the claimant had 12 percent whole person physical impairment rating, but later in a deposition stated that all of the claimant's impairment was preexisting. The ALJ denied the respondent's request to apportion the claimant's impairment finding that the respondents had failed to overcome by clear and convincing evidence the 12 percent impairment rating issued by the DIME physician. The court agreed with the respondents that the opinion of the DIME physician stated at the subsequent deposition should be considered, together with the initial report, as part of the DIME physician's "finding" for the purposes of § 8-42-107(8)(c). However, the court determined that the ALJ had adopted the 12 percent impairment rating and properly required the respondents to overcome that rating. The Court found no error in the ALJ's placement on the respondent the burden of proof to overcome by clear and convincing evidence the DIME physician's 12 percent impairment rating. We view the prior panel decisions as consistent with Lambert Sons, Inc. v. Industrial Claim Appeals Office, supra, and decline to depart from them. Further, following the principal articulated in Lambert, we perceive no error in the ALJ's placement of the burden of proof on the claimant in this case.
III.
The claimant contends that he was denied due process because before he had the opportunity to challenge the DIME physician's revised opinion the ALJ had already awarded permanent partial disability benefits in accordance with the DIME physician's revised rating. We disagree.
The fundamental requirements of due process are notice and an opportunity to be heard. Due process contemplates that the parties will be apprised of the evidence to be considered, and afforded a reasonable opportunity to present evidence and argument in support of their positions. Inherent in these requirements is the rule that parties will receive adequate notice of both the factual and legal bases of the claims and defenses to be adjudicated. See Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076, 1077 (Colo.App. 1990).
Here the respondents filed an application for hearing in May 2007 on the issue of overcoming the opinion of the DIME physician and a hearing took place on September 19, 2007. The deposition of the DIME physician was interrupted and so portions of the doctor's deposition took place over three separate days. The first portion of the DIME physician's deposition took place on July 27, 2007 when he was shown the video tape. Kawasaki Depo. (7/27/2007) at 12-13. The second portion of the DIME physician's deposition took place on August 17, 2007 when he opined that the claimant had 11 percent whole person impairment. Kawasaki Depo. (8/17/2007) at 38. The claimant began cross-examination of the DIME physician during the second deposition. Kawasaki Depo. (8/17/2007) at 43. Because there was insufficient time to finish the cross-examination the matter was scheduled for the concluding portion of the deposition on September 7, 2007. Kawasaki Depo. (9/17/2007) at 71.
The claimant may not have known in advance how the ALJ would resolve the DIME physician's conflicting opinions concerning impairment. However, the claimant was on notice before the hearing that the DIME physician had changed his opinion and that it was for the ALJ to resolve the ambiguity and determine the DIME physician's true opinion. The claimant received both notice and the opportunity to be heard concerning the permanent partial disability determination. See Whiteside v. Smith, 67 P.3d 1240 (Colo. 2003); City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Stephens v. North Air Package Express Services, supra. In these circumstances, we cannot say the claimant was deprived of due process. Further, we are not persuaded by the claimant's remaining arguments to disturb the ALJ's decision.
IT IS THEREFORE ORDERED, that the ALJ's order issued November 13, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
RICE RICE, INC., Attn: MS. JODY M SNIFF, FOUNTAIN, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
ALEXANDER AND RICCI, PC, Attn: WILLIAM A ALEXANDER JR., ESQ., COLORADO SPRINGS, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN LLC, Attn: RICHARD J LIBY, ESQ., DENVER, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: MATTHEW GRADY, DENVER, CO, (Other Party).