Opinion
W.C. No. 4-718-516.
May 19, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber dated November 26, 2010. The ALJ denied the claimant's motion to strike the report and testimony of Dr. Jacob, his claim for medical benefits after reaching maximum medical improvement, and his claim for permanent total disability benefits. In addition, the claimant seeks permanent partial disability benefits in excess of the four percent whole person impairment rating awarded by the ALJ. We affirm.
Several of the ALJ's findings of fact are summarized as follows. The claimant worked as an assistant builder and sustained an admitted injury on January 5, 2007 when he fell on ice and struck his head. The claimant suffered from upper back pain, but continued to work with restrictions. Dr. Brown determined that he claimant had a closed compression fracture of his thoracic vertebrae at T3 without spinal cord injury. He found no need for surgery. Dr. Kiernan placed the claimant at maximum medical improvement on September 5, 2007 and assessed the claimant's medical impairment to be three percent. Dr. Kiernan imposed restrictions and indicated that the claimant was to be sedentary six to eight hours a day. The claimant sought chiropractic treatment from Dr. Fischer on his own and without referral from an authorized treating physician. Dr. Fischer issued a note at the claimant's request indicating that the claimant would benefit from a motorized wheelchair. Dr. Ridings conducted a Division-sponsored independent medical examination (DIME) on March 5, 2008 and gave the claimant an impairment rating of six percent whole person based on four percent for thoracic range of motion and two percent for the T3 fracture. The claimant was diagnosed with a deep venous thrombosis and bilateral pulmonary emboli on April 5, 2009 for which he started on anticoagulation therapy. Dr. Jenks determined that the claimant had a worsening of condition and was no longer at maximum medical improvement. The respondents voluntarily reopened the claim.
On August 25, 2009 Dr. Jenks determined that the claimant was again at maximum medical improvement and determined that the claimant had a six percent impairment based on three percent for thoracic range of motion loss and three percent for an intervertebral disc or soft tissue lesion. Dr. Higginbotham conducted a DIME on May 10, 2010. He agreed that the claimant reached maximum medical improvement on August 25, 2009. Dr. Higginbotham determined that the claimant's embolic episode was probably related to the claimant's lack of activity and sitting in a chair or wheelchair. He gave the claimant a seven percent whole person impairment consisting of two percent for a compression fracture, and five percent for specific disorders at other vertebral levels. Dr. Jacobs conducted an independent medical examination for the respondents on August 25, 2010 and indicated that the claimant had only a two percent impairment rating under Table 53.I.A of the American Medical Association Guidelines to the Evaluation of Permanent Impairment, Third Edition, Revised and that additional ratings for disc or soft tissue lesions were not available under the tables without surgery. Ms. Bartmann conducted a vocational evaluation for the respondents and opined that the claimant was capable of earning a wage.
The ALJ found that the respondents established the claimant's deep venous thrombosis and bilateral pulmonary emboli were not related to his work injury and that the claimant's anticoagulant therapy, therefore, was not reasonably necessary to cure or relieve the effects of the work injury. The ALJ further determined that the respondents overcame the DIME physician's rating and found that the claimant sustained a four percent whole person impairment. The ALJ also found that the claimant failed to prove he was permanently and totally disabled.
The claimant had sought to strike the report and testimony of Dr. Jacobs as a sanction under CRCP 37 on the ground that he improperly contacted Dr. Fischer. The ALJ had found that Dr. Jenks lectured Dr. Fischer on the claimant's inappropriate use of a wheelchair and the claimant's corresponding need for anticoagulant therapy. The ALJ determined the claimant had not shown that Dr. Jacobs obtained privilege information from Dr. Fischer and denied the claimant's request to strike Dr. Jacobs' report and testimony.
I. The claimant contends that he is entitled to the impairment rating of six percent provided by the first DIME physician, Dr. Ridings. According to the claimant the respondents did not challenge Dr. Ridings' impairment rating and it remains in effect. The hearing transcript reveals that the claimant's counsel advised the ALJ that Dr. Ridings performed a DIME and gave the claimant a six percent impairment rating that the respondent insurer paid. He then advised the ALJ as follows:
And now evidently they're coming back and saying wait, we were wrong to pay the 6 percent it should have been 4 percent and Dr. Higginbothams's 7 percent is in error. And so I don't know if their position today is, yeah, we paid the 6 percent, but it really should have been 4 percent or are they taking the position well we paid the 6 percent, but we're objecting to the 7 percent because they already paid the 6 percent by Dr. Writings [sic].
Tr. at 13. The respondents' counsel confirmed that the respondents were asserting that the impairment rating should be four percent. The ALJ clarified that the respondents filed a final admission after the previous rating and then reopened due to a worsening, after which there was another DIME. Tr. at 13. The respondents' counsel explained that the first DIME physician, Dr. Ridings, did not evaluate pulmonary embolisms another physician had to be selected to perform the DIME. Tr. at 14. (In fact, the respondents challenged the causation of the embolism as it related to ongoing anticoagulation treatment. Tr. at 7.) The ALJ asked the claimant if his arguments were affected by that explanation concerning the second DIME and his counsel stated that he had issues concerning Dr. Jacobs' evidentiary deposition. It is not readily apparent from the record that the claimant made this argument before the ALJ and we conclude that the claimant failed to preserve the issue of whether the first DIME of Dr. Ridings impairment rating supercedes that of the second DIME physician, Dr. Higginbotham. Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo. App. 1994). In any event, it appears from the respondents' brief that they recognize the ALJ's order does not grant them retroactive relief from their prior admission of liability.
II.
The claimant asserts that the ALJ erred by not striking Dr. Jacobs' report and testimony as a discovery sanction. We consider whether the ALJ abused his discretion in denying the claimant's corresponding motion to strike. The standard on review of an alleged abuse of discretion is whether the ALJ's determination "exceeds the bounds of reason, as where it is contrary to law or unsupported by the evidence." Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo. App. 2001). The claimant argued in his motion, among other things, that the respondents acted inappropriately under Samms v. District Court, 908 P.2d 520 (Colo. 1995) when Dr. Jacobs contacted Dr. Fischer, the claimant's personal chiropractor, concerning her recommendation of a wheelchair and her care and treatment of the claimant.
In Samms, the supreme court concluded that the trial court could authorize opposing counsel to conduct informal interviews in the absence of a plaintiff or his or her counsel with the plaintiffs treating physicians. However, the questioning was limited to matters not subject to the physician-patient privilege, such as areas of treatment effectively waived by bringing suit concerning such treatment. Furthermore, the plaintiff is entitled to reasonable notice of any such interview so that the plaintiff or the plaintiffs attorney may take appropriate action such as attending the interview. Samms, 908 P.2d at 526.
The ALJ found that when Dr. Jacobs spoke to Dr. Fischer he did not inform her he was performing an independent medical examination for the respondents. He lectured Dr. Fischer on the claimant's inappropriate use of a wheelchair and his need for anticoagulant therapy. Dr. Fischer's testimony supports these findings. Tr. at 38-41. In addition, Dr. Fischer testified that her office staff advised her that the office received a release for records. Tr. at 39. The ALJ concluded that the claimant failed to show that the respondents' counsel sought to circumvent Samms procedures through Dr. Jacobs as its agent. He found no statutory or regulatory basis for Samms violations. The ALJ also found that the claimant "made no showing that Dr. Jacobs obtained privileged information from Dr. Fischer." Conclusions of Law at 13, ¶ 1. We agree that the claimant did not establish any disclosure of privileged information by Dr. Fischer due to Dr. Jacobs' contact with her. The claimant asserts that Dr. Fischer gave Dr. Jacobs privileged medical information, but her testimony indicates that they discussed the claimant's use of a wheelchair, the use of anticoagulants, and his embolism. Tr. at 39. These matters were directly related to the issues being litigated and we find no abuse of discretion by the ALJ in denying the claimant's request to strike Dr. Jacobs' testimony and report.
III.
The claimant asserts that the ALJ erred by failing to take into consideration the claimant's unrebutted and credible testimony, as well as failing to consider the "human factors" in determining whether the claimant was entitled to permanent total disability (PTD) benefits. We are not persuaded by the claimant's assertions that the ALJ erred in denying him such benefits.
Section 8-40-201(16.5)(a), C.R.S., defines PTD as the claimant's inability "to earn any wages in the same or other employment." Under the statute, the claimant carries the burden of proof to establish PTD. In determining whether the claimant is capable of earning wages, the ALJ may consider a myriad of "human factors," including the claimant's education, work history and general health. Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). These factors include the claimant's physical condition, mental ability, age, employment history, education and the "availability of work" the claimant can perform. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). Bymer provides that the test for determining the "availability of work" is "whether employment exists that is reasonably available to the claimant given his or her circumstances." Bymer also states that this determination must be made on a "case-by-case basis," and "will necessarily vary according to the particular abilities and surroundings of the claimant (e.g., whether and how far the claimant is able to commute)." Bymer, 955 P.2d 557. The ALJ expressly referred to considerations such as "the claimant's commutable labor market" and "the existence of employment that is reasonably available to the claimant under his or her particular circumstances." Conclusions of Law at 14, ¶ 3.
The ALJ is given the widest possible discretion in determining the issue of permanent total disability, and ultimately the issue is one of fact. Professional Fire Protection, Inc. v. Long, 867 P.2d 175 (Colo. App. 1993). Because these issues are factual in nature, we must uphold the ALJ's resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S . This standard of review requires that we consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ's credibility determinations, resolution of conflicts in the evidence and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003). The ALJ need not enter findings concerning every piece of evidence if the bases of the order are clear from the findings and conclusions which are entered. Evidence and inferences not specifically mentioned were presumably rejected. Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000). Finally, the ALJ is presumed to have considered the relevant legal standards unless the contrary affirmatively appears from the order. Shafer Commercial Seating, Inc. v. Industrial Claim Appeals Office, 85 P.3d 619 (Colo. App. 2003).
Included in his findings are a consideration of the claimant's abilities, medical condition, education, work history and related circumstances by Ms. Bartmann, who performed a vocational evaluation. Ms. Bartmann opined that the claimant had marketable, transferable skills and that there were employment opportunities for him that "match his vocational history and recommended restrictions." Ms. Bartmann determined that the claimant was capable of earning a wage. Findings of Fact at 9, ¶ 40. The ALJ made additional findings concerning the claimant's ability to work and earn a wage, all of which are supported by substantial evidence in the record. For example, Exhibit X (Ms. Bartmann's Employability Evaluation); Exhibit Y (Ms. Weldon's Physical Residual Functional Capacity Assessment). We find no basis for disturbing the ALJ's determination that the claimant is not permanently and totally disabled.
IV.
The claimant also challenges the ALJ's denial of ongoing anticoagulant therapy to treat his deep venous thrombosis and bilateral pulmonary emboli. The ALJ determined that the respondents established by clear and convincing evidence that the anticoagulant therapy was not reasonably necessary to cure or relieve the effects of the work injury. See Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988) (authorizing receipt of reasonably necessary medical treatment after permanent disability award); Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 414 (Colo. App. 1995) (clear and convincing evidence is evidence that is highly probable and free from serious or substantial doubt). The ALJ found Dr. Jacobs opined that the claimant's deep venous thrombosis and bilateral pulmonary emboli were not related to his work injury, but resulted from the claimant's self-imposed use of a wheelchair. Jacobs Depo. at 14-16. The claimant refers to other evidence that could support a contrary finding, but we are not at liberty to reweigh the evidence in the claimant's favor. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo. App. 1993).
IT IS THEREFORE ORDERED that the ALJ's order dated November 26, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
SCOTT BALFOUR, Attn: RICH BALFOUR, P O BOX 7332, PUEBLO WEST, CO, 81007 (Claimant).
OAKWOOD HOMES LIMITED LIABILITY COMPANY, Attn: ELISE HATFIELD, 4908 TOWER ROAD, DENVER, CO, 80249 (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D. FLEWELLING, ESQ., 7501 E. LOWRY BLVD., DENVER, CO, 80230 (Insurer).
LAW OFFICE OF STEVEN U. MULLENS, PC, Attn: ROBERT W. TURNER, ESQ., P O BOX 2940, COLORADO SPRINGS, CO, 80901-2940 (For Claimant).
RUEGSEGGER SIMONS SMITH STERN LLC, Attn: ALEXANDRA E. COLEMAN, ESQ., 1401 SEVENTEENTH STREET, SUITE 900, DENVER, CO, 80202 (For Respondents).