W.C. No. 4-356-247Industrial Claim Appeals Office.
February 21, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) which determined the respondents overcame the Division-sponsored independent medical examination (DIME) physician’s medical impairment rating. The claimant contends the ALJ erred in relying on the rating of the treating physician and the opinion of an IME physician selected by the respondents. We affirm.
The claimant was involved in a compensable automobile accident on October 17, 1997. The claimant sustained an injury to his right shoulder, fractured 3 thoracic vertebrae, and sustained a burst fracture of a lumbar vertebra. One of the treating physicians placed the claimant at maximum medical improvement (MMI) on June 18, 1998. This physician assessed a 28 percent whole person impairment rating, which included impairment of the thoracic spine, the lumbar spine, the right upper extremity (right shoulder), and a psychiatric component.
The claimant sought a DIME on the issue of medical impairment. The DIME physician assigned a 51 percent whole person impairment rating, which included 13 percent impairment based on reduced range of motion in the cervical spine, and a 4 percent “II B classification.” The DIME physician’s rating also included impairment of the thoracic spine, the lumbar spine, the right shoulder, and a psychiatric component.
On February 17, 2000, the claimant underwent an IME by a physician selected by the respondents. This physician assigned a 30 percent whole person rating, but did not include any rating based on impairment of the cervical spine. The IME physician opined the DIME physician’s cervical rating was improper because he did not document a specific diagnosis of the cervical spine, and because range of motion does not constitute a basis for impairment absent a specific diagnosis. The respondents’ IME physician also opined the claimant’s neck symptoms are attributable to referred pain from the claimant’s shoulder injury. (Tr. pp. 16-18 41-42; Primack report, February 17, 2000).
The ALJ found the respondents overcame the DIME physician’s rating by clear and convincing evidence. In support, the ALJ credited the testimony of the respondents’ IME physician that the DIME physician’s rating was not in compliance with the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides) because it included a rating for the cervical spine without identifying a specific diagnosis. The ALJ also credited the IME physician’s opinion that the claimant’s neck symptoms represent referred pain from the shoulder injury. Consequently, the ALJ awarded medical impairment benefits based on the treating physician’s 28 percent whole person impairment rating.
On review, the claimant contends the evidence does not support the ALJ’s finding that the respondents overcame that DIME physician’s impairment rating. The claimant argues the ALJ ignored evidence the claimant sustained a cervical sprain in a second automobile accident which occurred in July 1998. The claimant reasons that this automobile accident “aggravated” his prior injury and justifies the 51 percent rating issued by the DIME physician. The claimant also argues that the treating physician’s rating does not constitute substantial evidence because it was issued before the July 1998 accident, and the rating of the respondents’ IME physician is unreliable because he was unaware of the second automobile accident and consequent medical records. We are not persuaded.
The medical impairment rating must be determined in accordance with the AMA Guides, and the DIME physician’s impairment rating is binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(c), C.R.S. 2000. The questions of whether the DIME physician properly applied the AMA Guides, and whether the rating has been overcome by clear and convincing evidence, are matters of fact for determination by the ALJ Wackenhut Corp. v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 00CA0061, October 26, 2000); McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo.App. 1999).
Because these issues are factual in nature, we must uphold the ALJ’s determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995). We further note the ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law. Neither is the ALJ required to make explicit findings concerning evidence which she concludes is not determinative of the issues. Rather, the findings are sufficient if we can ascertain the basis of the award from those findings which the ALJ did enter. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
We disagree with the claimant’s argument that the ALJ’s order is fatally flawed because it “ignores” evidence concerning the July 1998 automobile accident. Although the ALJ did not explicitly comment on the 1998 automobile accident or the “cervical strain” which allegedly resulted, this failure is not critical to the ALJ’s order. Even if the claimant sustained a cervical strain in July 1998, and even if this strain could be causally connected to the 1997 industrial injury, the issue before the ALJ was whether or not the claimant had sustained any permanent cervical impairment at the time he reached MMI in April 1999. The import of the testimony given by the respondents’ IME physician was that the claimant did not have any cervical impairment when examined in February 2000. This conclusion was based on the IME physician’s opinion that the DIME physician’s rating violated the AMA Guides because it was based on range of motion impairment and muscle spasm without declaring a specific diagnosis underlying these symptoms. In fact, the respondents’ IME physician testified that the symptoms identified by the DIME physician are attributable to the claimant’s shoulder injury, not any rateable impairment of the cervical spine.
Further, we cannot find the respondents’ IME physician’s opinions are incredible as a matter of law simply because he did not remember seeing the initial report concerning the July 1998 automobile accident. In fact, the physician testified that cervical strains frequently do not result in rateable impairment, and his ultimate opinion, based on his examination, was the claimant did not have any cervical impairment. (Tr. pp. 45, 54-55). Indeed, a report dated September 18, 1999, indicates the claimant reached MMI for the “cervical strain” with “no additional injury.” (Claimant’s Exhibit 18, p. 193).
It follows the ALJ did not err in basing the ultimate award on the 28 percent impairment rating issued by the claimant’s treating physician. Although the treating physician was necessarily unaware of the July 1998 automobile accident when he issued his impairment rating, the ALJ ultimately found that the 1998 automobile accident did not result in any permanent cervical impairment. Thus, the ALJ could plausibly rely on the treating physician’s impairment rating, which was largely corroborated by the respondents’ IME physician. We may not substitute our judgment that of the ALJ concerning the weight and credibility of the expert medical opinions.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 26, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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 February 21, 2001 to the following parties:
Francisco Aguilera, 4744 Gaylord St., Denver, CO 80216
Gateway Roofing, Inc., 4805 Olive St., Commerce City, CO 80022-4701
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority d/b/a Pinnacol Assurance-Interagency Mail (For Respondents)
David W. Doyle, Esq., 4465 Kipling St., #200, Wheat Ridge, CO 80033 (For Claimant)
Connie K. Ward, Esq., 600 17th St., #1600N, Denver, CO 80202
BY: A. Pendroy