W.C. No. 4-574-397.Industrial Claim Appeals Office.
August 18, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ), which determined the claimant failed to overcome the findings of the Division-sponsored independent medical examination (DIME) physician and, therefore, denied additional temporary and permanent disability benefits. We affirm.
The claimant suffered admitted injuries in October 2002. Dr. Hattem placed the claimant at maximum medical improvement (MMI) on May 5, 2003, with 12 percent whole person impairment based on range of motion deficits and a specific disorder of the lumbar spine. However, Dr. Hattem did not include a rating for impaired lumbar flexion because the claimant’s range of motion measurements did not meet validity criteria.
The DIME physician agreed with Dr. Hattem’s finding of MMI and assigned 6 percent whole person impairment for a specific disorder of the lumbar spine. However, the DIME physician’s declined to include a rating for impaired range of motion based on his determination that the claimant’s range of motion measurements were not valid.
The respondents filed a Final Admission of Liability consistent with the DIME physician’s findings of MMI and medical impairment. The claimant objected and requested a hearing to overcome the DIME.
The ALJ found the claimant failed to present clear and convincing evidence the DIME physician’s opinions were incorrect. Therefore, the ALJ denied the claimant’s request for additional temporary and permanent disability benefits.
The claimant’s Petition to Review contends the ALJ erroneously determined the claimant failed to overcome the DIME. The claimant also contends the ALJ found the DIME was “fatally flawed” because the DIME did not follow the applicable rating protocols, and then disregarded that finding in his written order.
We note the claimant did not file a brief in support of the petition. Under these circumstances, the effectiveness of our review is limited Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
Under § 8-42-107(8)(b)(III) and (c), C.R.S. 2003, the DIME physician’s findings of MMI and medical impairment are binding unless overcome by clear and convincing evidence. “Clear and convincing” evidence has been defined as evidence which demonstrates that it is “highly probable” the DIME physician’s rating is incorrect. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Whether the claimant overcame the DIME was a question of fact for resolution by the ALJ. We must uphold the ALJ’s determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003.
Although the Petition to Review designated the January 15, 2004 hearing transcript as part of the record on review, the record contains evidence the transcript request was subsequently withdrawn. In the absence of a transcript we are required to presume the ALJ’s findings of fact are supported by substantial evidence in the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). Furthermore, the ALJ’s findings support his determination that the claimant failed to establish grounds to set aside the DIME physician’s opinions on the issues of MMI and permanent impairment.
Moreover, in the absence of a transcript the record is legally insufficient to ascertain whether the ALJ orally found the DIME was “fatally flawed.” In any case, it is the ALJ’s written order which is the subject of our review. See Reed v. Industrial Claim Appeals Office, 13 P.3d 810 (Colo.App. 2000). Consequently, insofar as the ALJ’s oral ruling is inconsistent with the written order, we must presume the ALJ exercised his prerogative to reconsider the matter before issuing the written order. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (Panel may consider findings which are necessarily implied by the ALJ’s order); Wait v. Jan’s Malt Shoppe, 736 P.2d 1265 (Colo.App. 1987).
IT IS THEREFORE ORDERED that the ALJ’s order dated, January 29, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Imad Aldabbas, CO, Ultramar Diamond Shamrock, c/o Valero Energy, San Antonio, TX, Laura Berg, Valero Claims Management, Inc., San Antonio, TX, Leslie Cavanaugh, LWP Claims Administrators, CO, Lakewood, CO, Richard C. Sandomire, Esq., Denver, CO, (For Claimant).
Timothy L. Nemechek, Esq., Denver, CO, (For Respondent).