Opinion
W.C. No. 4-743-263.
October 22, 2009.
FINAL ORDER
The claimant and the respondents both seek review of an order of Administrative Law Judge Krumreich (ALJ) dated May 27, 2009 that determined that the respondents failed to overcome a Division-sponsored independent medical examination (DIME) on the issue of maximum medical improvement and that denied the claimant's request for a change of physicians. We affirm.
A hearing was held on the issues of whether the respondents were able to overcome the DIME physician's opinion that the claimant was not at maximum medical improvement and whether the claimant was entitled to a change of physician to Dr. Kleiner. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant sustained an admitted injury to her back on November 23, 2007, and received treatment from Dr. Meza at Concentra. The claimant was referred to Dr. Fall, who evaluated the claimant on December 4, 2007 and assessed her as having complaints of low back and left leg pain with subjective complaints greater than the objective findings and out of proportion to the mechanism of the injury. The claimant was evaluated by Dr. Fall again on January 7, 2008, and the doctor stated that she had no explanation for the claimant's complaints. The claimant was then evaluated by Dr. Reiss, who diagnosed her as suffering from mechanical back pain. The claimant was seen by Dr. Meza on February 6, 2008, who transferred her care to Dr. Quick, for management of her chronic pain. Dr. Quick evaluated the claimant and noted that her injury resulted in low back pain "with subjective greater than objective findings." Dr. Fall placed the claimant at maximum medical improvement on March 31, 2008 with five percent whole person impairment. The respondents filed a final admission consistent with the opinions of Dr. Fall. Dr. Scott performed a DIME and reported that the claimant's diagnostic tests suggested a possible "discopathy" that had not been fully evaluated. Dr. Scott stated that the claimant was not at maximum medical improvement and recommended certain further diagnostic testing and possible treatment. The claimant returned to Dr. Fall, who stated that the tests recommended by Dr. Scott were normal she opined that the claimant had been and remained at maximum medical improvement. Although Dr. Scott testified by deposition that if he had had the test results done by Dr. Fall, he would likely have stated that the claimant was at maximum medical improvement, he also testified that it would be helpful to have a psychological evaluation. The ALJ found that Dr. Scott's opinion was that the claimant was not at maximum medical improvement.
The ALJ weighed the conflicting medical evidence and found that the respondents had failed to overcome Dr. Scott's opinion that the claimant had not reached maximum medical improvement. Based upon his finding that the claimant did not trust Dr. Fall, the ALJ also concluded that the claimant had failed to make a sufficient showing to warrant changing physicians to Dr. Kleiner. Both parties appealed the ALJ's order.
I.
The respondents argue that the ALJ erred in concluding that the respondents failed to overcome the DIME physician's opinion that the claimant had not reached maximum medical improvement. Specifically, the respondents argue that the ALJ's factual findings are not supported by substantial evidence, that the ALJ erred in crediting the doctor's opinion where it was based on inadmissible evidence, and that the ALJ erred in that he misinterpreted the Medical Treatment Guidelines. However, we are unpersuaded that the ALJ committed reversible error.
A.
First, we disagree with the respondents' argument that the record lacks substantial evidence to support the determination that the respondents failed to overcome the DIME report on the issue of maximum medical improvement. Section 8-42-107(8)(c), C.R.S. 2009, provides that the DIME physician's finding of maximum medical improvement and medical impairment is binding unless overcome by clear and convincing evidence. "Clear and convincing evidence" is defined as evidence which is stronger than a preponderance, is unmistakable and is free from serious or substantial doubt. DiLeo v. Koltnow, 200 Colo. 119, 613 P. 2d 318 (1980). In other words, in order to overcome the DIME report, there must be evidence which proves that it is highly probable that the DIME physician's opinions are incorrect. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995).
The question whether the party challenging the DIME physician's determination of maximum medical improvement has overcome the report by clear and convincing evidence is generally one of fact for determination by the ALJ. McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo. App. 1999); Metro Moving and Storage Co. v. Gussert, supra. Consequently, we must uphold the ALJ's resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2009. The substantial evidence test requires us to view the evidence in a light most favorable to the prevailing party, and to defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the record. Metro Moving and Storage Co. v. Gussert, supra. And resolving conflicting inferences which could be drawn from the DIME physician's rating is solely in the ALJ's discretion. Metro Moving Storage Co. v. Gussert, supra. This standard of review is deferential and the scope of our review in this regard is "exceedingly narrow." Metro Moving Storage Co. v. Gussert, supra. Under this standard of review it is also the ALJ's sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. We may not substitute our judgment for that of the ALJ regarding credibility matters unless there is such hard, certain evidence contradicting the ALJ's determination that it would be error as a matter of law. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
Here, as we understand the respondents' argument, it is that there is no support in the record for the ALJ's determination that the DIME doctor's "actual" opinion was that the claimant was not at maximum medical improvement. It is clearly established that if the DIME physician offers ambiguous or conflicting opinions concerning maximum medical improvement 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.
As noted previously, Dr. Scott testified in a deposition that "since the electrodiagnostic testing does not show radiculopathy," and given the reports of "a nonphysiological presentation" it would be "helpful" to have a psychological evaluation. Deposition of Dr. Scott at 32 (March 2, 2009) ("Scott Depo."). The doctor was then asked a number of questions regarding whether the claimant could be determined to be at maximum medical improvement pending the recommended psychological evaluation. He stated that psychological treatment might help in various ways, and finally stated his opinion that "you'd have to have a psychiatric evaluation before proceeding with making a final determination of maximum medical improvement." Scott Depo. at 36.
In our view Dr. Scott's testimony provides ample evidence supporting the ALJ's determination that his "final" opinion regarding maximum medical improvement was that the claimant had not reached it pending a psychological evaluation. And, contrary to the respondents' argument, the doctor's opinion was not "exclusively" based upon claimant's counsel's hypothetical question regarding the claimant's circumstances in emigrating to this country. It is true that the claimant's attorney posed a question in which he described the claimant's circumstances, including her status as a refugee who was in fear of persecution. Scott Depo. at 32. However, even before the claimant's counsel asked this question, Dr. Scott had stated that he would recommend "a psychiatric or psychological evaluation." Scott Depo. at 31-32. After having stated that opinion the doctor was then questioned about her background as an émigré and he stated that those conditions "certainly" could have lead to a psychological disorder "best evaluated and diagnosed by a psychiatrist." Scott Depo. at 33. Thus, the ALJ could reasonably have inferred that it was Dr. Scott's opinion that the claimant was not at maximum medical improvement until the performance of psychological testing, and that that opinion was based upon his evaluation of the claimant's condition. This is not a case where the expert's opinion was supported solely by "assumed facts at variance with the actual facts. . . ." High v. Industrial Commission, 638 P.2d 818, 820 (Colo. App. 1981). Accordingly, we reject the respondents' argument in this respect.
B.
In what we view as a closely related argument, the respondents also argue that the opinions of Dr. Scott were inadmissible under the applicable rules of evidence and that the ALJ erred in overruling their objections to that evidence. Specifically, the respondents argue that Colorado Rules of Evidence 702, 703, and 705 require that to be admissible expert testimony must be both reliable and relevant. The respondents argue that those rules preclude the admission of an expert opinion that relies upon "unreliable, unsupported opinion or assumption." Here, the respondents contend that the doctor's opinion that the claimant needed a psychological evaluation was based exclusively upon claimant's counsel's statements to the doctor. The respondents therefore argue that because those statements were inadmissible and speculative, the doctor's reliance on them in forming his opinion rendered that opinion mere speculation. We disagree with the respondents' argument.
In general, we do not disagree with the respondents' assertion that to be admissible, expert testimony must be shown to be reliable and relevant. People v. Shreck, 22 P.3d 68 (Colo. 2001). The Supreme Court stated this principle in People v. Ramirez, 155 P.3d 371 (Colo. 2007), in which the court found the phrase "reasonable medical probability" to be "outdated and inappropriate for determining the admissibility of expert testimony." Ramirez, 155 P.3d at 375. As it did in Shreck, the court stated that scientific evidence is admissible under CRE 702 if it is reliable and relevant. The court also reiterated that the reliability inquiry should be broad in its scope and should consider the totality of the circumstances. Ramirez, 155 P.3d at 378. A showing of relevance merely requires consideration whether the expert testimony would be useful to the fact finder. Ramirez, 155 P.3d at 379.
In our view these principles generally apply in the workers' compensation proceedings. See § 8-43-210, C.R.S. 2009. Both the applicable case law and CRE 702 contemplate a flexible test which allows an ALJ broad discretion to determine the admissibility of evidence based on an expert's knowledge, skill, experience, training and education. One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 501 (Colo. App. 1995); Denver Symphony Ass'n v. Industrial Comm'n, 34 Colo. App. 343, 526 P.2d 685 (1974). We may not interfere with the ALJ's determination that expert testimony should be admitted unless it constitutes a clear abuse of discretion. Hall v. Home Furniture Co., 724 P.2d 94 (Colo. App. 1986). The standard on review of an alleged abuse of discretion is whether the ALJ's order exceeds the bounds of reason, as where it is not supported by the record or applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). Moreover, because the fact finder has a "superior opportunity" to assess the competence of the expert and usefulness of the opinions, the standard of review is "highly deferential." Ramirez, 155 P.3d at 380.
We perceive no abuse of discretion in the ALJ's admission of and reliance upon the opinions of Dr. Scott. First, Dr. Scott was the DIME doctor and as we read the statute his report is admissible as a matter of law. Sections 8-42-107(8)(c), 8-42-107.2(4), C.R.S. 2009; 8-43-210, C.R.S. 2009. In any event, as we held above, we reject the respondents' argument that the opinion of Dr. Scott was "exclusively" based upon inadmissible evidence. As noted, the claimant's attorney asked Dr. Scott a hypothetical question describing her past circumstances. The question was objected to at the deposition and was subsequently overruled by the ALJ. Scott Depo. at 33. Then, at the hearing the claimant's attorney attempted to adduce evidence from the claimant confirming the "assumed" facts in his hypothetical question. Tr. at 86. Counsel for the respondents again objected and claimant's counsel explained in an offer of proof that the claimant's earlier circumstances were such that she might have suffered a psychological reaction to her injury. Tr. at 86. The ALJ noted that the evidence could be relevant to the claimant's contention that she was not at maximum medical improvement pending a psychological evaluation. Tr. at 87. However, he then sustained the objection, observing that the claimant's counsel could address that issue, but that testimony regarding her emigration from Russia or "things that happened in another country" were perhaps too far afield. Tr. at 88-89. The claimant's attorney then asked the claimant whether her injury had caused an increase in "emotional problems and problems with respect to depression." Tr. at 89. The claimant responded that they had. In our view this record sufficiently supports Dr. Scott's opinions to permit the ALJ to rely upon those opinions in concluding that the DIME report had not been overcome. See Roberts v. C M Ready Mix Concrete Co., 767 P.2d 769 (Colo. App. 1988) (hypothetical questions may be propounded where the assumptions have a reasonable basis in the record). Montague v. Pioneer Construction Co., 472 P.2d 742 (Colo. App. 1970) (hypothetical questions are not confined to facts admitted or absolutely proved, but may be based upon any fact that the evidence "tends" to establish).
C.
Finally, the respondents argue that the ALJ erred in his decision by misinterpreting the Medical Treatment Guidelines. Specifically, the respondents argue that the ALJ found that Dr. Fall "admitted" that the claimant was an appropriate candidate for a psychological evaluation under the Guidelines. However, they argue that the Guidelines read as a whole do not support the psychological evaluation and that the ALJ erred in his interpretation of them. We are unpersuaded.
The Guidelines are contained in W.C. Rule of Procedure 17-2(A), 7 Code Colo. Regs. 1101-3, and provide that health care providers shall use the Guidelines adopted by the Division of Workers' Compensation (Division). The Division's Guidelines were established by the Director pursuant to an express grant of statutory authority. See § 8-42-101(3.5)(a)(II), C.R.S. 2008. In Hall v. Industrial Claim Appeals Office, 74 P.3d 459 (Colo. App. 2003) the court noted that the Guidelines are to be used by health care practitioners when furnishing medical aid under the Workers' Compensation Act. See Section 8-42-101(3)(b), C.R.S. 2009.
However, Dr. Fall's reliance on the Guidelines was merely one piece of evidence that the ALJ could weigh in determining whether Dr. Scott's opinion was overcome by clear and convincing evidence. We have previously stated that the Medical Treatment Guidelines do not constitute evidentiary rules, and an expert's "compliance" with them does not dictate whether the expert's opinions are admissible, or whether those opinions may constitute substantial evidence supporting a fact finder's determinations. Jiron v. Douglas County School District RE-1, W.C. No. 4-636-107 (May 12, 2009). Rather, "non-compliance" with the guidelines may affect the weight given the ALJ to any particular medical opinion. We consider this reasoning equally applicable to the question here, whether a doctor properly interpreted the Guidelines. Therefore, despite Dr. Fall's alleged misinterpretation of the guidelines, the weight and credibility to be assigned expert medical opinion remains a matter within the fact-finding authority of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). Essentially, the respondents are arguing that Dr. Fall and the ALJ were mistaken in their interpretation of the Guidelines. The respondents' argument is essentially a request that we reweigh the record and draw inferences different from those reached by the ALJ. We may not usurp his fact-finding function by doing so.
II.
The claimant also appealed the order and makes two arguments. First, she argues that Dr. Fall was not an authorized treating physician for purposes of placing the claimant at maximum medical improvement. And, second, she argues that the ALJ abused his discretion in refusing to permit a change of physicians to Dr. Kleiner.
A.
The claimant first argues that Dr. Fall was not "the authorized treating physician" who could determine that the claimant was at maximum medical improvement. Therefore, because a valid determination of maximum medical improvement is a jurisdictional prerequisite to obtaining a DIME, the claimant argues that the ALJ here did not have jurisdiction to determine whether the DIME opinion was overcome on the issue of maximum medical improvement. Essentially, the claimant is arguing that maximum medical improvement was never "properly" determined because Dr. Fall did not have the correct status as "the" authorized treating physician. Therefore, no valid DIME could have been conducted and the ALJ lacked jurisdiction to determine whether the DIME report was overcome. We disagree.
First, we doubt the claimant's proposition that an ALJ is deprived of subject matter jurisdiction because of some defect in the DIME. Subject matter jurisdiction involves the court's authority to deal with a class of cases. See Currier v. Sutherland, _____ P.3d ____ (Colo. No. 08SC587 October 19, 2009) citing Board of County Commissioners v. Collard, 827, P.2d 546, 551 (Colo. 1992). The Director and the Office of Administrative Courts ALJs have original jurisdiction to hear and decide all matters arising under the Workers' Compensation Act (Act). Section 8-43-201, C.R.S. 2009; see Giddings v. Industrial Claim Appeals Office 39 P.3d 1211 (Colo. App. 2001); Cornerstone Partners v. Industrial Claim Appeals Office, 830 P.2d 1148 (Colo. App. 1992). The Director and ALJs share the same powers in connection with hearings concerning any controversy over any issue under the Act, and both may issue orders. Section 8-43-207(1)(k), C.R.S. 2009. Therefore, in our view, this is not a question of subject matter jurisdiction.
In any event, we disagree with the claimant's argument that Dr. Fall was not authorized to determine whether the claimant was at maximum medical improvement. As we understand the claimant's argument, she asserts that only one authorized treating physician may determine whether the claimant has reached maximum medical improvement, and that necessarily is "the first physician seen by the worker." However, we find no support in the Act for this interpretation. To the contrary, § 8-42-107(8)(b)(I) C.R.S. 2009 provides that: "An authorized treating physician shall make a determination as to when the injured employee reaches maximum medical improvement as defined in section 8-40-201(11.5)." (emphasis added). Because the best indicator of legislative intent is the language of the statute, words and phrases in a statute should be given their plain and ordinary meanings, and phrases should be read in context and construed according to the rules of grammar and common usage. Section 2-4-101, C.R.S. 2009; Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). Here, the statute does not state that it is only " the" authorized treating physician who may determine maximum medical improvement. Rather, it is "an" authorized treating physician. Accordingly, we reject the claimant's argument.
B.
The claimant also argues that the ALJ abused his discretion in refusing to permit a change of physicians on the grounds that the claimant did not "trust" Dr. Fall and the latter provided care that fell below the standard the claimant should reasonably expect.
Section 8-43-404(5)(a), C.R.S. 2009, permits the employer or insurer to select the treating physician in the first instance. Once the respondents have exercised their right to select the treating physician, the claimant may not change physicians without permission from the insurer or "upon the proper showing to the division." See Gianetto Oil Co. v. Industrial Claim Appeals Office, 931 P.2d 570 (Colo. App. 1996). Section 8-43-404(5)(a) does not contain a specific definition of a "proper showing." Consequently, we have previously held the ALJ possesses broad discretionary authority to grant a change of physician depending on the particular circumstances of the claim. See Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo. App. 1999); Szocinski v. Powderhorn Coal Co., W.C. No. 3-109-400 (December 14, 1998); Merrill v. Mulberry Inn, Inc., W.C. No. 3-949-781 (November 16, 1995). Because of the discretionary nature of the issue, we may not interfere with the ALJ's order unless an abuse of discretion is shown. An abuse exists if the ALJ's order is beyond the bounds of reason, as where it is unsupported by the evidence or is contrary to law. Rosenberg v. Board of Education of School District No. 1, 710 P.2d 1095 (Colo. 1995).
The ALJ's decision as to a change in physician should consider the need to insure that the claimant is provided with reasonable and necessary medical treatment as required by § 8-42-101(1), C.R.S. 2009, while also protecting the respondents' interest in being apprised of the course of treatment for which it may ultimately be held liable. See Yeck v. Industrial Claim Appeals Office, supra. Moreover, the ALJ is not required to approve a change in physician because of a claimant's personal reasons, including mere dissatisfaction. See Greager v. Industrial Commission, 701 P.2d 168 (Colo. App. 1985).
Here, we do not consider the ALJ's refusal to permit a change in physicians to be an abuse of discretion. The ALJ was unpersuaded that the diagnoses, the treatment, the recommendations, or the referrals of Dr. Fall were inappropriate or did not rise to a reasonable standard. It is evident from the ALJ's order that he did not believe that the claimant's distrust of the quality of Dr. Fall's care justified a change to a doctor of the claimant's choosing, especially in light of the several other authorized treating physicians who could provide care. Under these circumstances, we cannot state that the ALJ's decision exceeds the bounds of reason and therefore constitutes an abuse of discretion.
IT IS THEREFORE ORDERED that the ALJ=s order dated May 27, 2009, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
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YELENA SOLOK, AURORA, CO, (Claimant).
WAL-MART STORES, INC., Attn: PERSONNEL MANAGER, C/O: WAL-MART STORES, INC., #3566, DENVER, CO, (Employer).
AMERICAN HOME ASSURANCE, Attn: SERENA LOUDERMILK, C/O: BENTONVILLE, AR, (Insurer).
MARLIN W BURKE, Attn: MARLIN W BURKE, ESQ., DENVER, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK, PC, Attn: RICHARD A BOVARNICK, ESQ., DENVER, CO, (For Respondents).