Opinion
W.C. No. 4-648-372.
August 1, 2007.
FINAL ORDER
The claimant and the respondents seek review of an order of Administrative Law Judge Harr (ALJ) dated February 2, 2007 that ordered the respondents to pay for an arthrocentesis procedure, but denied the claimant's request that the respondents also pay for lumbar fusion surgery and a cervical discogram. We affirm.
The ALJ made extensive findings of fact, some of which are summarized as follows. The claimant received emergency treatment after being struck by a tree that he felled on December 15, 2004. He continued to receive periodic medical care and, on February 10, 2005, Dr. Murphy opined that the claimant's lumbar strain, as well as his scalp contusion and laceration, had resolved. Dr. Murphy placed the claimant at maximum medical improvement (MMI), with no permanent medical impairment. The respondent insurer filed a corresponding final admission of liability on June 2, 2005. The claimant objected to the final admission of liability and a Division-sponsored independent medical examination (DIME) was scheduled with Dr. Miller. The claimant received continuing medical treatment and underwent several examinations in the meantime.
Dr. Miller opined that the claimant's cervical spine, coccyx, and TMJ conditions were causally related to his industrial accident. He further opined that the claimant had reached MMI for his lower back condition, but not for these other conditions. The respondent insurer filed a general admission of liability instead of contesting the DIME physician's findings.
The ALJ therefore determined that the parties were bound by Dr. Miller's findings of causation related to the claimant's spinal and TMJ conditions.
Several medical providers examined the claimant, who reported a variety of symptoms. The ALJ ultimately determined that the respondents should provide for an arthrocentesis procedure related to the claimant's TMJ condition, but not for either lumbar fusion surgery or a cervical discogram.
The claims of both parties rely primarily on their view of the effect, if any, of the DIME physician's findings concerning the claimant's spinal and TMJ conditions. However, we conclude that those findings have neither the reach nor the limitations suggested by the parties in their respective arguments.
I.
The respondents assert that the ALJ erred in finding that the claimant's conditions relating to his cervical spine, coccyx, and TMJ were causally related to his industrial injury. The ALJ essentially found that the more persuasive medical evidence indicated that these conditions were not related to the claimant's injury at work. Order at 8, ¶ 25 and at 14, ¶ 45. Nonetheless, the ALJ determined that the respondents were bound by the causation determinations of the DIME physician, Dr. Miller. Order at 6-7, ¶ 20. The ALJ rejected the respondents' argument that the DIME physician's opinions as to the claimant's spinal and TMJ conditions being causally related to his industrial injury are not binding in the absence of a corresponding determination that the claimant is at MMI.
The respondents maintain that the DIME physician's findings of causation concerning the claimant's various conditions should have no binding effect while the issue of MMI remains open for future determination pursuant to the Colorado Supreme Court's holding in Williams v. Kunau, 147 P.3d 33 (Colo. 2006). In Williams, the treating physician made a finding of MMI. The claimant requested and underwent a DIME examination at which it was determined he was not at MMI. The claimant received further treatment and the treating physician concluded that he was at MMI. The insurer filed a final admission of liability, to which the claimant objected. The ALJ ruled that the claimant had not timely reinitiated the DIME process within 30 days of when the insurer filed its final admission of liability; thus, the case was automatically closed pursuant to § 8-42-107.2(2)(b), C.R.S. 2006. The claimant appealed and the matter was eventually heard by the Colorado Supreme Court.
The claimant in Williams argued that the procedures required by § 8-42-107.2(1)(b), C.R.S. 2006 to select the independent medical examiner, including the time limit following the insurer's filing of a final admission of liability, do not apply to a follow-up examination by a DIME physician after the treating physician's second determination of MMI. The supreme court agreed and held that, once a claimant has successfully challenged a finding of MMI through the DIME process, that process remains open and, when the treating physician makes a second finding of MMI, the employer or insurer may not file a final admission of liability to close the case prior to returning the claimant to the independent medical examiner for a follow-up examination and determination of MMI.
In this case the respondents assert that the DIME physician's findings as to causation should have no binding effect while the DIME process remains open under Williams. However, we conclude that the respondents' failure to contest the DIME physician's findings precludes them from challenging Dr. Miller's findings concerning the cause of the claimant's spinal and TMJ conditions. Leprino Foods Co. v. Industrial Claim Appeals Office of State, 134 P.3d 475, (Colo.App. 2005); Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002); Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998).
II.
The claimant challenges the ALJ's decision not to order the respondents to pay for lumbar fusion surgery or a cervical discogram. He asserts that the DIME physician's findings regarding the relatedness of his spinal conditions to his industrial accident should be dispositive concerning his entitlement to surgery and a discogram. Nonetheless, the establishment of a causal connection between the claimant's industrial injury and his spinal conditions does not eliminate the respondents' ability to dispute the claimant's need for particular medical benefits. Furthermore, the burden of proof is on the claimant to establish entitlement to medical benefits. See Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337, 1339 (Colo.App. 1997) (employer who files general admission of liability for medical benefits can dispute need for such benefits).
The question of whether a proposed treatment is reasonable and necessary, is generally one of fact for determination by the ALJ. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002); Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). We must uphold the ALJ's factual determinations if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2006. 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. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
Under this standard of review it is 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 unless the testimony the ALJ found persuasive is rebutted by such hard, certain evidence that it would be error as a matter of law to credit the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). The existence of evidence which, if credited, might permit a contrary result also affords no basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, supra. Contrary to the claimant's assertions, the ALJ found that the claimant did not show by a preponderance of the evidence that lumbar surgery and a cervical discogram are reasonable and necessary to cure and relieve the effects of his injury.
The ALJ found that the DIME physician, Dr. Miller, placed the claimant at MMI for his lower back condition, without permanent medical impairment. Order at 6, ¶ 19. However, Dr. Miller determined that the claimant had not reached MMI for his cervical and coccyx regions of his spine, or for his TMJ condition. Order at 6, ¶ 20. The ALJ credited the opinions of Dr. Reichhardt and Dr. Lockwood in finding that the claimant's pathology and symptoms at the L5-S1 level of his spine were not related to his industrial injury. Order at 12, ¶ 40. However, the ALJ went further and considered Dr. Turner's recommendation for lumbar fusion surgery to be "equivocal" and that it "fails to show it medically probable such surgery is reasonable and necessary to cure and relieve the effects of claimant's pathology at L5-S1." Order at 12, ¶ 40. The ALJ also referred to Dr. Thompson's testimony that he would not recommend a lumbar fusion surgery without approval by Dr. Cohen "from a psychological perspective," who had not provided such an opinion. Order at 12, ¶ 40. These findings are supported by the record. Exhibit A at 17 (Dr. Reichhardt's report); Tr. at 75, 89-91, 109, 113-114 (Dr. Reichhardt's testimony); Exhibit 11 at 50 (Dr. Turner's report); Thompson Depo. at 14, 28; Exhibit G (Dr. Cohen's reports); Exhibit C at 7 (Dr. Lockwood's report).
Concerning the claimant's request for a cervical discogram, the ALJ found Dr. Reichhardt's testimony, which he quoted, to be persuasive. Order at 13, ¶¶ 43-44. He also credited the recommendation of Dr. Benz against a cervical discography absent Dr. Cohen's concurrence. Order at 14, ¶ 44. The record supports the ALJ's finding to the effect that the proposed discogram was not shown to be reasonable and necessary to cure and relieve the claimant from the effects of his industrial injury. Tr. at 83-85 (Dr. Reichhardt's testimony); Exhibit H at 2-3 (Dr. Benz's report).
The claimant argues that Dr. Reichhardt is biased and lacks objectivity in light of being paid several thousand dollars by the respondents for testifying. Claimant's Brief in Support at 19. As the claimant points out, Dr. Reichhardt's opinions differed from some of the other doctors; however, it was the ALJ's sole prerogative as the fact finder to resolve the conflicts based upon his credibility determinations. See Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). The claimant's arguments regarding the fee received by Dr. Reichhardt only go to the weight of the testimony. It is for the ALJ to determine the weight to be accorded to expert testimony, and draw plausible inferences from the evidence. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002); Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, supra. Applying these principles here, were perceive no reversible error in the ALJ's crediting the opinions of Dr. Reichhardt.
IT IS THEREFORE ORDERED that the ALJ's order dated February 2, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
Pinnacol Assurance, Harvey D. Flewelling, Esq., Denver CO, Bob L. Ring, Esq., Ring Associates, PC, Ft. Collins, CO (For Claimant).
Douglas L. Stratton, Esq., Ritsema Lyon, PC, Ft. Collins, CO, (For Respondents).