Opinion
W.C. No. 4-740-549.
August 6, 2009.
FINAL ORDER
The claimant seeks review of a supplemental order of Administrative Law Judge Friend (ALJ) dated March 13, 2009, that found the claimant was at maximum medical improvement (MMI) from the effects of the compensable injury. We affirm.
The claimant underwent a Division-sponsored independent medical examination (DIME). The respondents sought to overcome the opinion of the DIME physician's opinion that the claimant was at MMI. The ALJ found that it was highly probable that DIME physician was incorrect in determining that the claimant was not at MMI. The ALJ concluded that the respondents had shown by clear and convincing evidence that the claimant was at MMI for her work related condition. The claimant appeals, requesting a determination that she has not reached MMI.
The claimant has not filed a brief in support of her petition to review and, therefore, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo. App. 1986). Other than general allegations of error, derived from § 8-43-301(8) C.R.S. 2009, the petition to review contains three allegations of error.
I.
The claimant first contends that the ALJ erred in finding the claimant was at MMI because the ALJ failed to consider the deposition transcript of the DIME physician. We are not persuaded that the ALJ erred.
In his original Findings of Fact, Conclusions of Law and Order dated February 10, 2009 the ALJ did state that the transcript of the deposition of the DIME physician was not admitted into evidence. In the first order, the ALJ discussed the opinions of the DIME physician but this may have been based on the written report of the DIME physician received into evidence. Exhibit A. Moreover, contrary to the contentions of the claimant, the ALJ made extensive findings in his supplemental order concerning the deposition testimony of the DIME physician. In addition, we note that it is sufficient for the ALJ to make findings concerning that evidence which he considers dispositive of the issues, and he need not discuss the ramifications of all contrary evidence and inferences. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000); Maes v. Federal Fruit Produce, W. C. Nos. 4-246-932, 4-409-427, 4-413-589, 4-416-013 (May 10, 2001). Under the circumstances here, we discern no reversible error.
II.
The claimant next contends that the ALJ erred in finding that the claimant was at MMI because no medical evidence was presented which rose to the level of "clear error." We disagree.
Pursuant to § 8-42-107(8)(b)(III), C.R.S. 2009, a DIME physician's finding of MMI is binding on the parties unless overcome by clear and convincing evidence. Montoya v. Industrial Claim Appeals Office 203 P.3d 620 (Colo. App. 2008); Brownson-Rausin v. Industrial Claim Appeals Office 131 P.3d 1172 (Colo. App. 2005). "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, supra. 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. Section 8-43-301(8), C.R.S. 2008; Metro Moving Storage Co. v. Gussert, supra. 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." Id.
In our view the record evidence contains substantial evidence supporting the ALJ's determination that the respondents had overcome the DIME physician's MMI determination by clear and convincing evidence. The ALJ made the following findings of fact with record support. The claimant had a history of low back problems that predated her work injury. Tr. at 10. The treating physician and the DIME physician documented unusual behavior by the claimant. Tr. at 42-43; Burkhardt Depo. at 32; Exhibit P at 1. Dr. Reiter reported the claimant was not able to undergo an MRI scan because it hurt too much to lay down on the table. Exhibit D. Dr. Mason reported that the claimant was very intolerant to palpatory and reflex examination. B at 2. Dr. Reiss reported that the claimant had a very dramatic presentation, but her objective findings were limited. Exhibit J at 2. Dr. Johnsrud reported that the claimant said she had difficulties dressing herself, washing in the shower. Exhibit P 1-2. Dr. Burris noted extreme pain behavior through out her entire time in the clinic. Exhibit O at 2. As the claimant walked to and from the examination room she constantly grunted and winced from pain. Exhibit O at 2. A visual inspection of the lumbar spine showed no deformities or swelling. Exhibit O at 1. Dr. Burris was unable to apply light touch to her back or light touch to her garments without her crying out in pain and withdrawing immediately from the pain. Exhibit O at 1. The DIME physician reported the claimant demonstrated severe pain behaviors as soon as the exam began, although during the history she sat with no apparent distress. Exhibit A at 6. As soon as the neurologic exam started, the claimant developed severe pain behavior, grunting, and was nearly in tears. Exhibit A at 6.
Surveillance video of the claimant's activities at a building supply store showed no sign of restrictions, or limitations while the claimant was opening and closing doors, lifting and carrying purchased items and driving. Exhibit AAA. The DIME physician reviewed the video and opined that the claimant's activities on the video were inconsistent with the claimant's presentation at her evaluation. Burkhardt Depo. at 32 The ALJ found that there was a significant lack of objective evidence to support a determinable medical problem and significant evidence of overreaction, pain magnification, symptom exaggeration and non-physiologic findings. The ALJ found that no further treatment is expected to improve the claimant's work-related condition in part because no objective condition exists, and in part because the claimant restricts the types of treatment she will allow. Tr. at 54 59; Exhibit 2 at 8 12; Exhibit H at 3; P at 2; Exhibit R at 3. The ALJ concluded that the recommendation for medical maintenance will not likely result in significant improvement in the claimant's condition. In our view there is substantial evidence to support the ALJ's conclusion that the DIME physician's MMI determination had been overcome by clear and convincing evidence.
III.
The claimant next contends that an evidentiary ruling by the ALJ resulted in the admission and exclusion of certain evidence in a manner that adversely impacted the substantial rights of the claimant. We are not persuaded to interfere with the ALJ's order.
We note that the ALJ has wide discretion to control the course of a hearing and make evidentiary rulings. Section 8-43-207(1)(c), C.R.S. 2009; IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo. App. 1988). The appellate standard on review of an alleged abuse of discretion is whether the ALJ's order exceeds the bounds of reason, as where it is contrary to the applicable law or unsupported by the evidence. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Rosenberg v. Board of Education of School District # 1, 710 P.2d 1095 (Colo. 1985). Here the claimant has not pointed to any specific evidentiary ruling. However, we have reviewed the record and perceive no abuse of discretion committed by the ALJ involving an evidentiary matter.
We have considered the claimant's other general contentions contained in her petition to review, but conclude that they present no grounds upon which the order of the ALJ may be set aside. The findings are sufficient to permit appellate review and the ALJ resolved conflicts in the evidence based upon his credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo. App. 1992). Although there was conflicting evidence produced at the hearing, the findings are amply supported by substantial evidence. Consequently, those findings must be upheld on review. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo. App. 2002). We perceive no basis upon which to set aside the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's supplemental order dated March 13, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
DEANNA SIEFKEN, 17864 E LOYOLA AVE, AURORA, CO, (Claimant).
AMERICAN INSURANCE GROUP PLAN, Attn: TAMMY WILLIAMS, C/O: SEDGWICK CMS — PHOENIX, LEXINGTON, KY, (Insurer).
IRWIN BOESEN, PC, Attn: CHRIS L. INGOLD, ESQ., DENVER, CO, (For Claimant).
DWORKIN, CHAMBERS, WILLIAMS, YORK, Attn: BENSON EVANS, PC, C/O: DAVID DWORKIN, ESQ., DENVER, CO, (For Respondents)
LIBERTY MUTUAL INSURANCE COMPANY, Attn: MICHELLE YAKLIN, IRVING, TX, (Other Party).