W.C. No. 4-514-009Industrial Claim Appeals Office.
July 18, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) which determined the respondents overcame the medical impairment rating of the Division sponsored independent medical examination (DIME) physician and, therefore, denied and dismissed the claim for medical impairment benefits. We affirm.
On August 1, 2001, the claimant suffered a work-related injury. Dr. D’Angelo diagnosed a sprained coccyx. On August 23, 2001, Dr. D’Angelo placed the claimant at maximum medical improvement (MMI) without impairment.
The DIME physician opined the claimant was not at MMI. After additional testing and treatment the claimant returned to the DIME physician for a follow up evaluation where the DIME physician placed the claimant at MMI and assigned 20 percent whole person impairment based on specific disorders and range of motion deficits in the thoracic and lumbar areas of the spine.
The claimant subsequently underwent an IME by Dr. Primack, who opined the DIME physician misapplied the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides) and Level II accreditation directives by assigning an impairment rating under Table 53 of the AMA Guides without performing a physical examination of the claimant’s thoracic spine and coccyx to render a specific diagnosis. After reviewing surveillance tapes of the claimant’s activities, Dr. Primacy also opined the claimant has no permanent impairment from the industrial injury.
Crediting Dr. Primack’s testimony the ALJ found the respondents sustained their burden to overcome the DIME physician’s rating. Further, the ALJ relied on the opinions of Dr. D’Angelo and Dr. Primack to find the claimant suffered no permanent medical impairment as a result of the industrial injury. Therefore, the ALJ denied the claim for permanent medical impairment benefits.
The claimant’s petition to review contains general allegations of error. See § 8-43-301(8), C.R.S. 2002. The claimant also contends the ALJ erroneously found the respondents overcame the DIME physician’s rating. However, the claimant has not filed a brief in support of the petition to review and consequently, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
Section 8-42-107(8)(c), C.R.S. 2002, provides that the DIME physician’s impairment rating is binding unless overcome by “clear and convincing evidence.” Clear and convincing evidence is evidence which demonstrates that it is “highly probable” the IME physician’s rating is incorrect Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The question of whether the respondents sustained their burden to prove that the DIME physician’s rating has been overcome by clear and convincing evidence is one of fact for the ALJ. Askew v. Sears Roebuck Co., 927 P.2d 1333 (Colo. 1996). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 200 ; Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). This standard requires us to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving Storage Co. v. Gussert, supra.
Under § 8-43-301(8), we are precluded from disturbing the ALJ’s order unless the ALJ’s findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ’s findings, the findings do not support the order, or the order is not supported by the applicable law.
We have reviewed the record and the ALJ’s findings of fact. The ALJ’s findings are sufficient to permit appellate review, and the findings indicate that the ALJ resolved conflicts in the evidence based upon his credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489
(Colo.App. 1992).
Further, there is substantial evidence in the DIME physician’s report dated August 27, 2002 and Dr. Primack’s testimony to support the ALJ’s finding that it is highly probable the DIME physician misapplied the AMA Guides in rating the claimant’s permanent impairment from the industrial injury. Therefore, we may not disturb the ALJ’s finding that the respondents overcame the DIME physician’s rating. Furthermore, the opinions of Dr. Primack and Dr. D’Angleo amply support the ALJ’s award of zero permanent impairment benefits. Therefore, the claimant has failed to establish grounds which afford us a basis to disturb the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 24, 2003, 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. 2002. 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 July 18, 2003 the following parties:
Socorro Arpista, 2929 W. 49th Ave., Denver, CO 80221
US Motels DTC, Inc. d/b/a Days Inn, 620 Federal Blvd., Denver, CO 80204
Legal Department, Pinnacol Assurance — Interagency Mail
Jess M. Perez, Esq., 3155 Federal Blvd., Denver, CO 80211 (For Claimant)
Merrily S. Archer, Esq., 1625 Broadway, #2300, Denver, CO 80202 (For Respondents)
BY: A. Hurtado