W.C. No. 4-467-179Industrial Claim Appeals Office.
May 30, 2003
FINAL ORDER
The claimant, pro se seeks review of an order of Administrative Law Judge Martinez (ALJ) which determined the respondents overcame the medical impairment rating of the Division-sponsored independent medical examination (DIME) physician, and denied the claim for medical impairment benefits. We affirm.
On April 20, 2000, the claimant fell to the floor and landed on her buttocks when the chair on which she was sitting broke. The claimant received emergency treatment for a muscle strain and possible coccyx fracture, but x-rays revealed no fracture.
The claimant treated with Dr. Bowman from April 25, 2000 to August 29, 2000 for symptoms related to the industrial injury. Dr. Bowman diagnosed a cervicothoracic strain, thoracolumbar strain, and coccygeal contusion which resolved by May 2001. On May 4, 2001, Dr. Bowman placed the claimant at maximum medical improvement with zero permanent impairment.
Relying on the opinions of Dr Bowman, the respondents filed a Final Admission of Liability which denied liability for permanent partial disability benefits. The claimant objected and requested a DIME.
The DIME physician obtained x-rays of the lumbar spine which revealed spondylolysis and spondylolisthesis. The DIME physician assigned 8 percent impairment for first degree lumbar spondylolisthesis under Table 53(III)(A) of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides), and 4 percent impairment for range of motion deficits in the lumbar spine.
The claimant was subsequently examined by Dr. Worwag, who opined that throughout the course of treatment for the industrial injury, the claimant did not complain of and was not treated for symptoms of spondylolysis and spondylolisthesis. Therefore, Dr. Worwag opined that the DIME physician improperly applied the AMA Guides by assigning a rating for spondylolysis and spondylolisthesis. Dr. Bowman agreed with Dr. Worwag that there was no causal connection between the industrial accident and the claimant’s impairment due to spondylolysis and spondylolisthesis. Therefore, Dr. Bowman opined that the DIME physician’s rating was incorrect.
The ALJ found the DIME physician failed to comply with the AMA Guides insofar as he recommended the claimant undergo another independent examination to measure her range of motion instead of conducting repeat range of motion measurements during the DIME. The ALJ also noted that the DIME physician initially assigned a rating for impairment to the thoracic and cervical spine which he subsequently withdrew.
Further, the ALJ credited the opinions of Dr. Worwag and Dr. Bowman that the DIME physician erroneously found a causal connection between the industrial injury and the claimant’s symptoms from the spondylolysis and spondylolisthesis. Therefore, the ALJ determined the claimant had no permanent impairment attributable to the industrial injury, and that the DIME physician’s medical impairment rating was overcome by clear and convincing evidence.
The claimant’s Petition to Review contains only general allegations of error. Further, the claimant has not filed a brief in support of the Petition. See § 8-43-301(8), C.R.S. 2002. Consequently, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
Our authority to review the ALJ’s order is defined in § 8-43-301(8), C.R.S. 2002. That statute precludes us 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.
Section 8-42-107(8)(c), C.R.S. 2002, provides that the DIME physician’s medical impairment rating is binding unless overcome by “clear and convincing evidence” to the contrary. “Clear and convincing evidence” is evidence which supports a finding that it is highly probably the DIME physician incorrectly rated the claimant’s permanent impairment. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The question of whether the respondents sustained their burden to overcome the opinions of the DIME physician is one of fact for the ALJ Metro Moving Storage Co. v. Gussert, supra. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. Application of the substantial evidence test requires that we defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Accordingly, the scope of our review is narrow. Metro Moving Storage Co. v. Gussert, supra.
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).
The ALJ’s findings of fact are amply supported by the medical records and the testimony of Dr. Worwag and Dr. Bowman. Furthermore, the ALJ’s findings support the conclusion that the respondents sustained their burden to overcome the DIME physician’s rating. It follows that the ALJ did not err in denying the claim for permanent medical impairment benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 6, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
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 May 30, 2003 to the following parties:
Taunya Brown, 1030 Teller Ave., #18, Grand Junction, CO 81501
Teleperformance, 764 Horizon Dr., Grand Junction, CO 81506
Kris Flores, Gallagher Bassett Services, P. O. Box 4068, Englewood, CO 80155-4068
Marsha Kitch, Esq., 1202 Bergen Pkwy., #311, Evergreen, CO 80439 (For Respondents)
BY: A. Hurtado