W.C. No. 4-426-344Industrial Claim Appeals Office.
May 14, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which awarded permanent partial disability benefits based on a 29 percent whole person medical impairment rating. The respondents contend the ALJ’s findings of fact are insufficient to support the conclusion that the claimant overcame the Division-sponsored independent medical examination (DIME) physician’s impairment rating. The respondents also argue substantial evidence does not support the ALJ’s conclusion the DIME physician’s rating was overcome. We affirm.
The claimant sustained a compensable injury to her neck and low back on April 29, 1999. One of the treating physicians, Dr. Price, placed the claimant at maximum medical improvement in February 2000. At that time, Dr. Price assessed an 18 percent whole person impairment rating for the claimant’s lumbar spine, but did not include any impairment for the cervical spine.
The claimant underwent a DIME in June, 2000. The DIME physician assessed a 13 percent whole person impairment for the claimant’s lumbar spine. The DIME physician recognized the claimant also complained of cervical pain, but opined this condition was probably related to an automobile accident in which the claimant was involved on January 28, 2000. The claimant then sought a hearing to challenge the DIME physician’s impairment rating, and specifically his failure to rate the cervical condition.
On October 31, 2000, the ALJ entered an order awarding permanent partial disability benefits based on medical impairment of 29 percent of the whole person. The ALJ found that clear and convincing evidence established the DIME physician’s failure to rate the cervical condition was “clearly erroneous.” In support of this conclusion the ALJ cited a report of Dr. Hall, an independent medical examination physician selected by the claimant. Dr. Hall opined the claimant sustained cervical impairment as a result of the industrial injury. The ALJ also relied on the hearing testimony of Dr. Price, who “agreed” with Dr. Hall.
I.
On review, the respondents contend the ALJ’s findings are insufficient to support the legal conclusion that the claimant overcame the DIME physician’s opinion concerning the cause of the cervical impairment. The respondents assert the ALJ did not make any specific finding concerning the cause of the claimant’s cervical impairment and, therefore, the findings cannot support appellate review. We are not persuaded.
The question of whether a particular component of the claimant’s medical impairment is causally related to the industrial injury is an inherent part of the rating process. Consequently, the DIME physician’s opinion that a component of medical impairment is, or is not, caused by the industrial injury must be overcome by clear and convincing evidence. Section 8-42-107(8)(c), C.R.S. 2000; Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998). The question of whether the party challenging the DIME physician’s rating, including the DIME physician’s determination of causation, has been overcome by clear and convincing evidence is one of fact for determination by the ALJ. McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo.App. 1999).
In resolving the respondents’ argument concerning the sufficiency of the ALJ’s findings, we note the ALJ is not held to a crystalline standard in expressing findings of fact. The ALJ need not make findings concerning every piece of evidence as long as he enters findings concerning that evidence which he finds is dispositive of the issues involved. Further, we may consider findings which are implicit in the ALJ’s resolution of the issue presented for determination. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Here, we agree with the claimant that the ALJ’s resolution of the causation issue is implicit in the order. The entire tenor of Dr. Price’s testimony, as well as the report of Dr. Hall, was that the DIME physician mistakenly attributed the claimant’s cervical condition to the automobile accident rather than the industrial injury. The ALJ’s decision to credit Dr. Price’s testimony and Dr. Hall’s report, as well as the ALJ’s finding that clear and convincing evidence established the DIME physician erred in failing to rate the claimant’s “cervical spine impairment for the April 23, 1999 injury,” establish that the ALJ resolved the causation issue against the respondents. Thus, the ALJ’s findings are sufficient to indicate the basis of his order and to support appellate review.
II.
The respondents next contend the record does not support the ALJ’s finding the claimant overcame by clear and convincing evidence the DIME physician’s opinion that the cervical condition was caused by the automobile accident. The respondents argue that Dr. Hall’s opinion is “illogical” considering the force of the automobile accident, and is biased because the claimant retained him. The respondents further assert that Dr. Price’s testimony was equivocal because she said it was possible the automobile accident caused neck problems, and admitted that her disagreement with the DIME physician was a matter of medical “opinion.” We find no error.
Because the question of whether the claimant overcame the DIME physician’s opinion is an issue of fact, we must uphold the ALJ’s resolution if a supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. This standard of review is distinct from, and should not be confused with, the clear and convincing standard of proof applied by the ALJ. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995). 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.
Here, Dr. Hall and Dr. Price pointed to specific items in the claimant’s medical records tending to establish that the claimant’s injury-related neck symptoms had not resolved prior to the automobile accident, and the claimant was being treated for those symptoms shortly before the automobile accident. Dr. Price testified that, in retrospect, she “probably should have” provided a medical impairment rating for the claimant’s cervical condition when she issued her February 2000 report. Further, Dr. Price testified that, based on her review of the medical history, she would “probably go with Dr. Hall’s report” rather than the DIME physician’s report. (Tr. pp. 34-35, 43).
The respondents’ argument notwithstanding, Dr. Price’s testimony and Dr. Hall’s report constitute substantial evidence in support of the ALJ’s finding that the DIME physician’s opinion concerning causation was overcome by clear and convincing evidence. Because these opinions are grounded in the evidence, and plausible inferences drawn therefrom, we may not substitute our judgment for that of the ALJ concerning the weight to be assigned these opinions. Metro Moving and Storage Co. v. Gussert, supra. Neither can we say the opinions of Dr. Price and Dr. Hall are rebutted by such hard, certain evidence that they may be declared incredible as a matter of law. Indeed, testimony that is merely biased, inconsistent, or in conflict with other evidence is not incredible as a matter of law. See People v. Ramirez, ___ P.3d __ (Colo.App. No. 99CA1973, February 15, 2001); Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000). We have considered the respondents’other arguments and find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 31, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Robert M. Socolofsky
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed May 14, 2001 to the following parties:
Tammy Dimitt, 3121 E Road, #B, Grand Junction, CO 81504
Rick Sinner, A P Services/Prime Cut, 1960 N. 12th St., Grand Junction, CO 81501
AIU Insurance Company, Tina Gustafson, AIG Claim Services, Inc., P. O. Box 32130, Phoenix, AZ 85064
Christopher Seidman, Esq., P. O. Box 3207, Grand Junction, CO 81502 (For Claimant)
Craig P. Henderson, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy