W.C. No. 4-224-207Industrial Claim Appeals Office.
June 5, 1998
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Gandy (ALJ) which awarded permanent partial disability benefits based upon 39 percent whole person impairment, and future medical benefits. We affirm.
The claimant suffered admitted industrial injuries to his neck and shoulder on December 9, 1993. The injury was treated by several physicians, including Dr. Jacobs. On November 13, 1996, Dr. Jacobs placed the claimant at maximum medical improvement (MMI) and opined that the claimant sustained permanent medical impairment of 39 percent of the whole person. Dr. Jacobs attributed 16 percent of the permanent impairment to thoracic outlet syndrome (TOS). A Division-sponsored independent medical examination (IME) was then conducted by Dr. Curiel under the provisions of § 8-42-107(8)(c), C.R.S. 1997. In a report dated March 4, 1997, Dr. Curiel rated the claimant’s permanent impairment as 28 percent of the whole person. Dr. Curiel disagreed with the diagnosis of TOS and thus, did not assign any impairment rating due to TOS.
The ALJ found that the “overwhelming weight” of the medical evidence establishes the claimant developed TOS as a result of the industrial injury. Therefore, the ALJ determined that the claimant presented “clear and convincing evidence” that the industrial injury caused 39 percent impairment of the whole person, and not 28 percent as opined by Dr. Curiel. Crediting the reports of Dr. Jacobs and Dr. Donner, the ALJ also found that the claimant sustained his burden to prove an entitlement to future medical benefits. Therefore, the ALJ ordered the respondents to provide ongoing medical benefits and pay permanent partial disability benefits based upon 39 percent impairment of the whole person.
I.
On review, the respondents contend the ALJ erred in finding the claimant has TOS, that the TOS is related to the industrial injury, and that the TOS has resulted in permanent impairment. The respondents also contend that difference of opinions between Dr. Curiel and Dr. Jacobs is not sufficient to support the ALJ’s finding the claimant overcame Dr. Curiel’s rating by “clear and convincing evidence.” We reject these arguments.
Section 8-42-107(8)(c) provides that the IME 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); Qual-Med, Inc. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA1440, May 28, 1998); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). In other words, to overcome the IME physician’s medical impairment rating there must be evidence establishing that the IME physician’s determination is incorrect and this evidence must be unmistakable and free from serious or substantial doubt. DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318 (1980).
The question of whether the claimant sustained his burden to overcome the IME physician’s rating 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. 1997; Metro Moving Storage Co. v. Gussert, supra.
The ALJ expressly credited Dr. Sanders’ June 11, 1997 report which contains Dr. Sanders’ opinion that within a “reasonable degree of medical probability” the claimant has TOS. (Finding of Fact 9). As found by the ALJ, Dr. Jacobs and Dr. Holm also diagnosed TOS. Consequently, there is substantial medical evidence to support the ALJ’s finding that the claimant has TOS.
Furthermore, Dr. Sanders testified that the symptoms of TOS are:
“Pain in the hand, forearm, elbow, upper arm, shoulder, neck, and very often headaches in the back of the head, numbness and tingling most commonly involving all fingers, typically the fourth and fifth fingers are the worst, weakness in the hand, dropping things, aggravation of the symptoms when elevating the arm to do such things as comb one’s hair, blow dry the hair, drive a car, work on things above your shoulder.” (Sanders depo. p. 9).
The respondents’ arguments notwithstanding, there is substantial evidence in the medical records of Dr. Schmitt, Dr. Jabaily, Dr. Sanders, Dr. Holm, Dr. Jacobs and Dr. Donner that the claimant presented these symptoms secondary to the industrial injury. The ALJ could reasonably infer from this evidence that, the claimant’s TOS is causally related to the industrial injury.
There is also substantial evidence in the November 16, 1996 report of Dr. Jacobs and the June 11, 1997 report of Dr. Sanders that the TOS caused permanent impairment. Under these circumstances, the record supports the ALJ’s finding that the TOS has resulted in permanent impairment.
In so finding, it was the ALJ’s sole prerogative to resolve the internal inconsistencies in Dr. Sanders’ testimony. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (ALJ may credit all, part or none of an expert’s testimony). Therefore, it is immaterial whether there is some evidence in Dr. Sander’s deposition which, if credited, might support a finding that Dr. Sanders was unsure about the diagnosis of TOS. See F.R. Orr v. Rinta, 717 P.2d 965 (Colo.App. 1985) (substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences).
Moreover, the ALJ implicitly determined that the conflict between Dr. Curiel and the physicians who diagnosed the claimant as suffering from TOS rose to the level of “clear and convincing evidence” that Dr. Curiel incorrectly rated the claimant’s permanent impairment. We may not substitute our judgment for that of the ALJ concerning the sufficiency and probative value of the various medical evidence. See City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). The record supports the ALJ’s findings of fact, and the findings support the ALJ’s conclusion that the claimant overcame Dr. Curiel’s impairment rating.
The respondents’ remaining arguments have been considered and are unpersuasive. Therefore, we have no grounds to disturb the ALJ’s permanent partial disability award.
II.
The claimant also contends that the ALJ erred in awarding future medical benefits. We disagree.
In Grover v. Industrial Commission, supra, the court held that a claimant may receive medical benefits after MMI where there is substantial evidence in the record to support a determination that future medical treatment will be reasonable and necessary to cure and relieve the effects of an industrial injury or prevent further deterioration of the claimant’s condition. Whether the claimant has sustained his burden of proof is a question of fact for resolution by the ALJ. Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995).
Furthermore, the special weight afforded the IME physician’s opinion under § 8-42-107(8)(c), C.R.S. 1997, does not apply to the IME physician’s opinion concerning a need for future medical treatment. Rather, the clear and convincing evidence standard only applies to the IME physician’s opinion concerning the nature and degree of the claimant’s permanent impairment and the cause of that impairment. See Qual-Med, Inc. v. Industrial Claim Appeals Office, supra. Consequently, we disagree with the respondents’ contention that the claimant was bound by Dr. Curiel’s opinion that no further medical treatment is necessary, unless overcome by “clear and convincing evidence.”
We also reject the respondents’ contention that the ALJ’s findings of fact are insufficient to permit appellate review. The ALJ is not held to a crystalline standard in articulating his findings. George v. Industrial Commission, 720 P.2d 624
(Colo.App. 1986). Rather, the ALJ’s findings are sufficient if the basis for the order is apparent. Boice v. Industrial Claim Appeals Office, 800 P.2d 1339 (Colo.App. 1990).
Here, we have no difficulty ascertaining the basis of the ALJ’s award of Grover future medical benefits. The ALJ expressly stated that he was persuaded by the opinions of Dr. Jacobs and Dr. Donner that further medical treatment is reasonably necessary to relieve the effects of the industrial injury. (Finding of Fact 13).
Moreover, the medical evidence the ALJ found persuasive amply supports the award of Grover medical benefits. In her report dated November 13, 1996, Dr. Jacobs opined that the claimant requires “maintenance care” including prescription medication, physical therapy, occasional trigger point injections, conditioning to strengthen his back muscles, and possible surgery to relieve pressure on the brachial plexus. Similarly, Dr. Donner’s report of April 29, 1997, recommends home exercises, prescription medications and possible TOS surgery. Therefore, we must uphold the award of future medical benefits. Stollmeyer v. Industrial Claim Appeals Office, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 31, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ Kathy E. Dean ____________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed June 5, 1998 to the following parties:
Donald L. Bentley, 1503 Sylmar Place, Loveland, CO 80537
Julie Armana, Wal-Mart Stores, Inc., 7500 E. Crossroads, Loveland, CO 80537
Jon Casseaux, Claims Management, Inc., 3901 Adams Road, #C, Bartlesville, OK 74006-8458
W.M. Busch, Jr., Esq., 903 No. Cleveland Ave., Ste. A., Loveland, CO 80537 (For the Claimant)
Richard A. Bovarnick, Esq. Harvey Flewelling, Esq., 5353 W. Dartmouth Ave., Ste. 400, Denver, CO 80227 (For the Claimant)
BY: _______________________