W.C. No. 4-285-028Industrial Claim Appeals Office.
October 23, 1998
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Gandy (ALJ) insofar as the ALJ awarded medical impairment benefits based upon 18 whole person medical impairment. We affirm.
On January 30, 1996, the claimant suffered a work-related injury. He was initially treated for a superficial burn to his left hand and right shoulder pain. On May 30, 1997, Dr. Belleville placed the claimant at maximum medical improvement with 18 percent impairment of the right upper extremity.
Dr. Pham performed an independent medical examination (IME) under the provisions of § 8-42-107(8)(c), C.R.S. 1998. Dr. Pham opined that the industrial injury caused 15 percent impairment of the claimant’s right upper extremity, which Dr. Pham converted to 9 percent whole person impairment under the American Medical Association Guides to the Evaluation of Permanent Impairment Third Edition (Revised) (AMA Guides). Dr. Pham also included 5 percent whole person impairment for reduced range of motion of the neck and 5 percent for mental impairment. Dr. Pham’s total rating was 18 percent whole person impairment.
The ALJ expressly acknowledged the conflicting medical evidence concerning the claimant’s permanent physical and mental impairment. See (Corrected Summary Order, February 24, 1998). However, the ALJ credited the claimant’s testimony and found Dr. Pham’s opinions persuasive.
Based upon these findings, the ALJ determined the respondents failed to sustain their burden to overcome Dr. Pham’s medical impairment rating by “clear and convincing evidence” as required by § 8-42-107(8)(c). Consequently, the ALJ ordered the respondents to pay permanent partial disability benefits in accordance with Dr. Pham’s 18 percent whole person impairment rating.
On review the respondents contend that there is insufficient evidence the claimant suffered functional impairment beyond the right upper extremity. In support, the respondents rely on Dr. Belleville’s opinion that the claimant has no rateable mental or cervical impairment. Therefore, the respondents argue the ALJ erroneously awarded whole person impairment benefits. We perceive no error.
Section 8-42-107(1), C.R.S. 1998, provides that the claimant is limited to a scheduled disability award if the claimant suffers an “injury or injuries” described in § 8-42-107(2), C.R.S. 1998 Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). Where the claimant suffers at least one injury not enumerated in §8-42-107(2), the claimant is entitled to have all scheduled and non-scheduled impairments compensated as single whole person impairment under § 8-42-107(8), C.R.S. 1997. Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996).
Contrary to the respondents’ contention, the ALJ is not required to rely on the claimant’s medical impairment rating in determining whether the claimant has suffered functional impairment of the whole person. Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996). Nevertheless, a physician’s rating under the AMA Guides “may be considered by the ALJ in determining whether the claimant’s functional impairment is fully described on the schedule of disabilities.” Strauch v. PSL Swedish Healthcare System, 917 P.2d at 368.
An IME physician’s medical impairment rating may only be overcome by “clear and convincing evidence.” Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). “Clear and convincing evidence” is evidence which is unmistakable and is free from serious or substantial doubt. Metro Moving Storage Co. v. Gussert, supra.
The questions of whether the an injury has resulted in functional impairment not listed on the schedule of disabilities, whether the IME physician has properly applied the AMA Guides, and whether his rating is overcome by clear and convincing evidence are questions of fact for determination by the ALJ. Langton v. Rocky Mountain Health Care Corp., supra; Metro Moving Storage Co. v. Gussert, supra. Consequently, we must uphold the ALJ’s determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998.
Application of the substantial evidence test requires that we defer to the ALJ’s resolution of conflicts in the evidence and his assessment of the probative value of the evidence. Metro Moving Storage Co. v. Gussert, supra; Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (ALJ free to credit one medical opinion to the exclusion of a contrary medical opinion). Furthermore, we may interfere with the ALJ’s credibility determinations only if the testimony he credited is rebutted by such hard, certain evidence that it would be error as a matter of law to believe the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
In this case, Dr. Belleville and Dr. Pham disagreed whether the claimant’s mental and cervical impairment was rateable under the AMA Guides. Dr. Pham found that the claimant suffered category I mental impairment of 5 percent due to anguish. In Dr. Belleville’s opinion, what Dr. Pham described as “anguish” was actually “frustration” or “irritation,” and did not constitute permanent mental impairment under the AMA Guides. However, Dr. Belleville admitted that “reasonable medical minds” could disagree in assessing the claimant’s mental impairment. (Tr. p. 38). Under these circumstances, the evidence does not present the severe circumstances contemplated by Halliburton. Therefore, we may not say the ALJ erred in failing to credit Dr. Belleville’s opinion that Dr. Pham misapplied the AMA Guides by including a rating for mental impairment.
Similarly, Dr. Belleville opined that the claimant did not suffer a “medically documented injury” to the cervical spine which is required before the impairment may be rated under the AMA Guides. Therefore, Dr. Belleville opined that Dr. Pham erred by including a 5 percent rating for impairment of the cervical spine.
However, the ALJ was persuaded by Dr. Pham’s opinion that the claimant suffered a cervical strain secondary to the right shoulder injury, which resulted in a loss of range of motion to the neck. Dr. Pham’s opinion is supported by Dr. Belleville’s admissions that the claimant suffers from “referred pain of a myofascial type or soft tissue” into the neck muscles and that the primary source of the “referred pain” is the shoulder injury. (Tr. pp. 17, 33, 35).
Accordingly, there is substantial evidence to support the ALJ’s implicit determination that the claimant suffered functional impairment to the cervical spine. Therefore, it is immaterial the record contains some evidence which, if credited, might support a contrary determination. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
Furthermore, neither mental impairment nor cervical impairment is listed on the schedule of disabilities. Therefore, Dr. Pham’s mental impairment rating supports the conclusion that the claimant suffered functional impairment which must be compensated as whole person impairment under § 8-42-107(8). It follows that the ALJ correctly compensated the claimant’s right upper extremity impairment as whole person impairment. See Morris v. Industrial Claim Appeals Office, 942 P.2d 1343 (Colo.App. 1996).
The respondents’ Brief in Support of the Petition to Review also alleges the ALJ erred in failing to apportion the claimant’s medical impairment to a prior injury. However, the respondents do not make any specific arguments in support of their assertion.
Section 8-42-104(2), C.R.S. 1998, allows for the apportionment of permanent partial disability benefits. In Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996), the court held that apportionment of permanent partial disability is appropriate only if the claimant has a preexisting medical “impairment” which was “sufficiently identified, treated, or evaluated to be rated as a contributing factor in the subsequent disability, and the preexisting medical impairment constituted a “disability” at the time of the subsequent injury. Thus, medical impairment benefits are not subject to apportionment if the preexisting medical impairment was asymptomatic at the time of the subsequent injury. Lambert Sons, Inc. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA1774, July 9, 1998).
The ALJ’s order reflects that he considered, but was not persuaded, that it was appropriate to apportion part of the claimant’s medical impairment benefits to his prior injuries. See
(Finding of Fact 7). The ALJ’s determination is supported by the fact that neither Dr. Belleville nor Dr. Pham apportioned their impairment rating for the 1994 injuries. Furthermore, in the absence any specific arguments, we decline to infer that the respondents sustained their burden to prove apportionment unde Askew.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 5, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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. 1998.
Copies of this decision were mailed October 23, 1998 to the following parties:
Ronald P. Broom, 1120 Maple St., Fort Collin, CO 80521
Nancy Jean Collins, Manager, 900 Worthington Circle, Fort Collins, CO 80521
Beatrice Calvert, Business Insurance Co., 2000 S. Colorado Blvd., Ste. 11500, Denver, CO 80222
Thomas H. Moore, Esq., 425 W. Mulberry St., Ste. 112, Fort Collins, CO 80521-2896 (For the Claimant)
William A. Richardson, Esq., 400 Sussex Bldg., 1430 Larimer Square, Denver, CO 80202 (For the Respondents)
BY: _______________________