Opinion
W.C. No. 4-705-137.
June 17, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated November 28, 2008, that found the claimant had failed to overcome the Division-sponsored independent medical examination (DIME) physician's opinion on maximum medical improvement (MMI). We affirm.
The claimant suffered an industrial injury to her back on August 5, 2005. Dr. Pineiro provided authorized treatment. On October 14, 2005, Dr. Pineiro released the claimant to full duty employment. Dr. Pineiro continued to provide treatment through 2005 and into 2006. During that period, Dr. Pineiro referred the claimant for physical therapy, chiropractic treatment, massage therapy and a physiatry consultation. Dr. Pineiro determined the claimant reached MMI on January 10, 2006 with no impairment and no restrictions.
The claimant reported that she sustained a new work-related injury to her back on June 1, 2006. Although the respondents denied liability for the June 1, 2006 injury they referred the claimant to Dr. Pineiro for additional treatment. Dr. Pineiro recommended physical therapy to relieve the claimant's lower back pain. The claimant testified that she benefited from the physical therapy treatment. In a hearing on the claimed new injury, ALJ Felter determined that the claimant had failed to establish that she suffered a compensable injury on June 1, 2006.
The claimant underwent a DIME on February 1, 2008. The DIME physician agreed with Dr. Pineiro that the claimant had reached MMI on January 10, 2008 with no impairment and/or work restrictions. The DIME physician also stated that the claimant did not require medical maintenance benefits.
The ALJ acknowledged that the claimant testified that her physical therapy treatment in May 2006 and August 2007 relieved her lower back symptoms. However, the ALJ determined that her statements did not constitute unmistakable evidence that the DIME physician's MMI determination was incorrect. The ALJ concluded that the claimant failed to produce clear and convincing evidence to establish that it was highly probable that the DIME physician's determination of MMI was incorrect.
On appeal, the claimant contends the ALJ erred as a matter of law in ruling that the claimant failed to overcome the DIME physician's opinion on the issue of MMI. We are not persuaded that the ALJ committed reversible error.
We note preliminarily that the DIME physician's findings as to MMI are binding unless overcome at hearing by clear and convincing evidence. Section 8-42-107(8)(b)(III), (c), C.R.S. 2008; Montoya v. Industrial Claim Appeals Office 203 P.3d 620 (Colo.App. 2008). Determination of MMI requires the DIME physician to assess, as a matter of diagnosis, whether the various components of the claimant's medical condition are causally related to the industrial injury. Martinez v. Industrial Claim Appeals Office 176 P.3d 826 (Colo.App. 2007).
"Clear and convincing" evidence has been defined as evidence which demonstrates that it is "highly probable" the DIME physician's opinion is incorrect. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). The question whether the claimant has overcome the DIME by clear and convincing evidence is one of fact for the ALJ's determination. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). This is true despite the elevated standard of proof required to overcome a DIME: "[I]rrespective of whether the standard of proof at the administrative adjudicatory level of proceedings is clear and convincing, beyond a reasonable doubt, or merely a preponderance of the evidence, it is solely for the trier of fact to determine the persuasive effect of the evidence and whether the burden of proof has been satisfied." Id., 914 P.2d at 414. Therefore, the standard of review remains whether the ALJ's findings of fact are supported by substantial evidence in the record. Id.; § 8-43-301(8), C.R.S. 2008. Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, supra. This standard of review is deferential and the scope of our review is "exceedingly narrow." Metro Moving Storage Co. v. Gussert, supra.
The claimant citing the definition of MMI contained in § 8-40-201(11.5) C.R.S. 2008, Sotelo v. National By-Products, Inc., W.C. No. 4-320-606 (March 2, 2000) and Reynolds v. Industrial Claim Appeals Office, 794 P.2d 1080 (Colo.App. 1990) argues that because the claimant testified that the physical therapy improved the claimant's condition and increased her function she cannot as a matter of law be at MMI. We disagree.
The claimant correctly notes that MMI is defined in § 8-40-201(11) as the point in time when any medically determinable physical or mental impairment as a result of injury has become stable and when no further treatment is reasonably expected to improve the condition. We acknowledge that a recommendation for therapies which present a reasonable prospect for improving physical function may be viewed as evidence that the claimant's condition is not stable and the resulting impairment not yet measurable. Gebert v. Norsdstrom, W. C. No. 4-428-645 (December 09, 2002). Therefore, such treatment recommendations may under some circumstances be inconsistent with MMI.
However, in our view the claimant's reliance on Reynolds v. Industrial Claim Appeals Office is misplaced. In Reynolds, the court held as a matter of law that the claimant's "condition" was not at MMI where the treating physician recommended additional surgery and the physician stated the "additional surgery could affect the claimant's physical restrictions and disability rating." Id. at 1082. The court ruled that a determination of permanent disability was premature in view of his treating physician's recommendation that he undergo additional surgery. In contrast here the treating physician had placed the claimant at MMI and released the claimant to full duty employment. Further, the DIME physician agreed with the treating physician's opinion on MMI and placed no work or home restrictions on the claimant. Moreover, both the treating physician and the DIME physician determined the claimant had no permanent partial impairment as a result of the industrial injury.
Claimant's reliance upon Sotelo v. National By-Products, Inc. as authority for the proposition that because there was evidence that the physical therapy was reported to improve the claimant's condition that the ALJ was compelled to find that the DIME physician erred concerning MMI is also misplaced. In Sotelo the Panel set aside the ALJ's determination that the claimant was at MMI because the ALJ had also made the factual finding that physical therapy would improve the claimant's functional capacity and therefore reasonable minds could draw but one conclusion when applying the undisputed facts to the law. In Sotelo, the ALJ specifically found that the proposed therapy would improve the claimant's "functional capacity" by improving his ability to lift. In Sotelo, the ALJ found as a matter of fact that the proposed treatment was designed to restore some of the claimant's lost physical function, and the restoration would improve the claimant's condition beyond that which existed at the time the claimant was placed at MMI. Here the ALJ made no similar finding. To the contrary, the ALJ specifically found that the claimant's testimony that her physical therapy relieved her lower back symptoms did not constitute unmistakable evidence that the DIME physician's determination was incorrect. Here again both the treating physician and the DIME physician determined that the claimant was at MMI, and that she had no restrictions. Further, the DIME physician was aware that the claimant had undergone physical therapy but still opined that the claimant was at MMI and required no maintenance treatment. Exhibit 5 at 6 10.
The question whether the claimant has overcome the DIME by clear and convincing evidence is one of fact for the ALJ's determination. Metro Moving Storage Co. v. Gussert, supra. In the circumstances here we cannot say that the facts compel a determination that the claimant's functional capacity would be improved by the physical therapy and therefore the DIME physician erred in finding that the claimant was at MMI. In our opinion the ALJ's determination that the claimant failed to overcome the DIME physician's MMI determination is supported by substantial evidence in the record. Therefore we perceive no reason to disturb that determination on review.
IT IS THEREFORE ORDERED that the ALJ's order dated November 28, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
BARBARA MANCHEGO, 802 N SHIELDS ST, FT COLLINS, CO, 80521 (Claimant)
RESIDENCE INN BY MARRIOTT, INC., Attn: TRINA JESSEN, GENERAL MANAGER, C/O: FT COLLINS RESIDENCE INN, 1127 OAKRIDGE DRIVE, FT COLLINS, CO, 80525 (Employer)
INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Attn: IRENE HERNANDEZ, P O BOX 29208, HOT SPRINGS, AR, 71903-9208 (Insurer)
RING ASSOCIATES, PC, Attn: JESS M PEREZ, ESQ., 2550 STOVER STREET, BLDG C, FT COLLINS, CO, 80525 (For Claimant)
LAW OFFICE OF STEVEN J PICARDI, Attn: STEVEN J PICARDI, ESQ., 12900 STROH RANCH WAY, SUITE 110, PARKER, CO, 80134 (For Respondents)