W.C. No. 4-470-351.Industrial Claim Appeals Office.
June 12, 2002.
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Harr (ALJ) insofar as it awarded permanent partial disability benefits based on mental impairment. The respondent contends the ALJ erred as a matter of fact and law when determining the impairment rating of the Division-sponsored independent medical examination (DIME) physician was overcome by clear and convincing evidence. We affirm.
The claimant sustained a compensable injury in October 1998 while pushing a box with her right arm. After an unsuccessful course of conservative therapy, one of the claimant’s treating physicians, Dr. Wunder, diagnosed a tear of the right rotator cuff and cervical disc disease with spinal stenosis at C5-6.
In September 2000 the claimant underwent cervical disc surgery, with the expectation of undergoing repair of the rotator cuff upon recovery from the neck surgery. Although the claimant experienced some relief from the neck surgery, her symptoms subsequently worsened and Dr. Wunder expressed the belief that psychological factors were affecting her recovery. On January 10, 2001, Dr. Wunder placed the claimant at maximum medical improvement (MMI), despite the fact the claimant had not undergone shoulder surgery. Dr. Wunder believed, based on the claimant’s reaction to the cervical surgery, that she would not experience a good result from shoulder surgery.
The claimant underwent a DIME on the issues of MMI and permanent impairment. The DIME physician opined the claimant was not at MMI because she should be offered “shoulder surgery under certain conditions,” including a “contract” guaranteeing her compliance with the rehabilitation process. In so doing, the DIME physician noted the claimant exhibited a “psychological situation” which was documented “by multiple providers of her pain behaviors and lack of compliance.” The DIME physician assigned a 17 percent whole person impairment rating based on injury to the right upper extremity and the cervical spine.
The respondent applied for a hearing seeking to overcome the DIME physician’s opinion the claimant was not at MMI, and on the issue of permanent partial disability in the event they were successful on MMI. Following the presentation of extensive medical testimony and records, the ALJ found the respondent demonstrated by clear and convincing evidence the claimant had reached MMI for the right shoulder condition because she was not a good candidate for surgery.
Addressing the issue of permanent partial disability, the ALJ found the claimant proved it is “highly probable” the DIME physician’s 17 percent whole person impairment rating was incorrect insofar as it “failed to address claimant’s permanent mental impairment.” In this regard, the ALJ noted the DIME physician “discussed claimant’s significant psychological dysfunction and recommended post-operative psychological counseling” if the claimant underwent repair of the rotator cuff. Further, the ALJ found an examining psychologist, Dr. Ledezma, diagnosed the claimant with a major depressive disorder and generalized anxiety disorder which significantly impacted her activities of daily living. Finally, the ALJ credited the opinion of an examining physician, Dr. Machanic, that the claimant has a 9 percent whole person mental impairment. Thus, the ALJ determined the claimant is entitled to permanent partial disability benefits based on the physical impairment rating of 17 percent of the whole person, and mental impairment of 9 percent of the whole person.
On review, the respondent contends the ALJ erred as a matter of law in finding the DIME physician “failed to address” the claimant’s permanent mental impairment. The respondent argues the DIME physician implicitly concluded the claimant’s psychological condition was not caused by the industrial injury. Further, the respondent argues the evidence is insufficient to support the ALJ’s finding that the DIME physician’s failure to rate mental impairment was overcome by clear and convincing evidence. We disagree.
The DIME physician must determine the claimant’s medical impairment rating in accordance with the AMA Guides. The DIME physician’s “finding” concerning the degree of medical impairment is binding on the parties unless overcome by clear and convincing evidence. Section 8-42-107(8)(c), C.R.S. 2001. As the respondent points out, the question of whether a particular impairment was caused by the industrial injury is inherent in the rating of medical impairment under the AMA Guides. Public Service Co. v. Industrial Claim Appeals Office, the__ P.3d ___ (Colo.App. No. 00CA1991, June 21, 2001); Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998).
The question of whether the DIME physician properly applied the AMA Guides in issuing the rating, and ultimately whether the rating was overcome by clear and convincing evidence, are questions of fact for determination by the ALJ. McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo.App. 1999). Similarly, the question of whether the DIME physician’s finding concerning the cause of a particular impairment was overcome by clear and convincing evidence is also a question of fact. Qual-Med, Inc. v. Industrial Claim Appeals Office, supra.
Because these issues are factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301 (8), C.R.S. 2001. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995). We note that if a medical opinion contains internal inconsistencies, the ALJ may resolve the inconsistency by crediting part or none of the testimony. Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997). Finally, the ALJ is not held to a standard of absolute clarity when expressing findings of fact and conclusions of law. Rather, it is sufficient if the ALJ enters findings and conclusions which are sufficient to indicate the basis of the order Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000).
The respondent’s argument notwithstanding, the ALJ did not err as a matter of law in finding the DIME physician “failed to address the issue of claimant’s permanent mental impairment.” (Finding of Fact 36; Conclusion of Law B). The DIME physician specifically mentioned the claimant’s “psychological situation” and recommended the claimant be “followed by a psychologist” in the event she underwent surgery for the shoulder condition. However, as the ALJ correctly found, the DIME physician did not assess any impairment for the “psychological situation.” Further, as implied by the ALJ’s decision, the DIME physician’s report does not explain the failure to assign a mental impairment rating. The possible bases for failure to assign a rating include the DIME physician’s opinion that the claimant was not sufficiently impaired to warrant a rating, or the DIME physician believed the claimant’s psychological condition was not caused by the industrial injury, or because the DIME physician merely overlooked this aspect of the rating.
In any event, whatever the basis of the DIME physician’s failure to rate mental impairment, the ALJ correctly required the claimant to prove, by clear and convincing evidence, that the DIME physician erred in failing to rate the claimant’s alleged mental impairment. Based primarily on the opinion of Dr. Machanic, the ALJ found it highly probable the claimant suffers from ratable mental impairment causally related to the industrial injury. Further, as the ALJ noted, Dr. Machanic’s opinion was corroborated by diagnoses issued by Dr. Carbaugh and Dr. Ledezma.
Contrary to the respondent’s argument, Dr. Machanic’s rating is not incredible as a matter of law simply because he opined the claimant is not at MMI and needs additional psychological treatment. It is true, as the respondent points out, the degree of medical impairment may not ordinarily be calculated until the claimant’s condition has become stable and no further treatment is expected to improve the condition. Section 8-40-201(11.5), C.R.S. 2001. However, Dr. Machanic’s opinion that the claimant needs additional psychological treatment does not necessarily vitiate his opinion concerning the degree of the claimant’s psychological impairment as measured by interference with activities of daily living and other relevant factors. Indeed, under the current system, issues of MMI and medical impairment are often litigated concurrently, and an ALJ may credit a medical expert’s opinion concerning one of these issues without crediting the expert’s opinion on the other. To the extent there is any inconsistency in Dr. Machanic’s opinion, the discrepancy created a credibility issue for resolution by the ALJ. Johnson v. Industrial Claim Appeals Office, supra. Moreover, we note the respondent never argued that the claimant has not reached MMI because she has a psychological condition which warrants additional treatment. Indeed, the respondent took the position the claimant was at MMI.
The respondent also argues Dr. Ledezma’s opinion is irrelevant because she did not assign an impairment rating for the claimant’s psychological injury. However, Dr. Ledezma’s report is relevant to the issues of whether the claimant has a psychological diagnosis, and, if so, the cause of that condition. The respondent’s remaining arguments are purely factual in nature and we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 4, 2001, 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. 2001. 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 June 12, 2002 to the following parties:
Theresa Ayala, 1124 34th Ave., Greeley, CO 80634
ConAgra Beef Company, — Rita Breazeale, ConAgra Foods Claims Services, One ConAgra Drive, Greeley, CO 80634
Monfort, 100 N. 8th Ave., Greeley, CO 80631-2339
ConAgra, 11516 Nicholas St., #301, Omaha, N.E. 68154
Regina M. Walsh Adams, Esq., 1011 37th Ave. Court, #201, Greeley, CO 80634 (For Claimant)
Ronda K. Comings, Esq., 2629 Redwing Rd., #330, Ft. Collins, CO 80526 (For Respondent)
BY: A. Hurtado