W.C. No. 4-406-168Industrial Claim Appeals Office.
April 1, 2002
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Felter (ALJ) insofar as the ALJ awarded permanent partial disability benefits based on 15 percent mental impairment. We affirm.
The claimant suffered an admitted injury diagnosed as plantar fasciitis. On January 16, 2001, the claimant underwent a Division-sponsored independent medical examination (DIME) by Dr. Cianflone, who is a family practitioner. Dr. Cianflone assigned a 5 percent whole person rating for impairment to the right and left lower extremities, and 2 mental impairment because the claimant’s activities of daily living were moderated by the injury. However, Dr. Cianflone did not make a specific psychiatric diagnosis. Instead, Dr. Cianflone reported the claimant “did not appear psychotic and/or overly depressed” during the DIME and did not require “significant psychiatric support.”
The respondent filed a final admission of liability consistent with Dr. Cianflone’s rating. The claimant objected to the final admission and requested a hearing to overcome Dr. Cianflone’s mental impairment rating. In support, the claimant offered the medical opinions of Dr. Kurtz, who conducted a psychological evaluation of the claimant on October 31, 2000.
Dr. Kurtz diagnosed the claimant as suffering from major depression, secondary to the effects of the industrial injury and social anxiety syndrome “made worse” by the effects of the industrial injury and the depression. After completing a Permanent Work-Related Mental Impairment Rating Report Worksheet, Dr. Kurtz opined the claimant has “mild to moderate” permanent mental impairment related to pain and depression. Therefore, Dr. Kurtz assigned a 15 percent mental impairment rating.
The claimant testified Dr. Kurtz spent one and one-half hours with him during the evaluation, whereas Dr. Cianflone spent a total of 15 minutes evaluating physical and mental impairment and didn’t ask him how the injury affected him emotionally. Further, the claimant testified he continued to be socially withdrawn, and experienced difficulty sleeping, managing everyday tasks, concentrating, and making decisions. (Tr. pp. 13-15).
The ALJ found a conflict between the opinions of Dr. Cianflone and Dr. Kurtz concerning the degree of the claimant’s permanent mental impairment. In resolving the conflict, the ALJ found Dr. Kurtz had more specific expertise in psychiatry than Dr. Cianflone. The ALJ also found Dr. Kurtz spent much more time than Dr. Cianflone evaluating the claimant’s psychological condition, and that the diagnosis of Dr. Kurtz was more specific, and consistent with the claimant’s manifested condition at the hearing. Giving the greatest weight to the claimant’s testimony, the claimant’s demeanor during the hearing, and the opinions of Dr. Kurtz, the ALJ found it highly probable that Dr. Cianflone’s 2 percent mental impairment rating understated the claimant’s degree of mental impairment. Therefore, the ALJ determined the claimant overcame the DIME physician’s mental impairment rating. Further, the ALJ determined the medical impairment rating of Dr. Kurtz was correct. Consequently, the ALJ ordered the respondents to pay permanent partial disability benefits based on Dr. Cianflone’s 5 percent whole person rating for physical impairment, and Dr. Kurtz’ 15 percent mental impairment rating. The respondent timely appealed.
On December 18, 2001, a briefing schedule was issued which gave the respondent until January 7, 2002 to file a brief in support of the petition to review. On January 7, 2002, the respondent moved for a “one-month” extension of time to file a brief. The ALJ granted the motion in an order dated January 29, 2002, which was mailed February 6, 2002.
On February 27, 2002, the ALJ “green sheeted” the record to us for review. The Green Sheet stated the “Brief in Support” was due February 6, 2002, and that no brief was filed by the date of the Green Sheet.
On February 28, 2002, the respondent filed an opening brief. On March 5, 2002, the claimant moved to strike the brief on grounds it was filed outside the time allowed by the ALJ’s order for an extension of time.
The respondent contends the ALJ granted a “one-month” extension of time commencing January 29, 2002. Therefore, the respondent argued its opening brief was timely filed. We disagree.
The pertinent issue is the scope of the ALJ’s order granting the respondent’s motion for an extension of time. The respondent’s Motion for Extension of Time admitted the respondent’s opening brief was due January 7, 2002 and requested a “one-month” extension of time. The order dated January 29 granted the Motion for Extension of Time for a “one-month extension of time.” Thus, the ALJ’s order implicitly granted an extension to February 7, 2002. Furthermore, the ALJ’s February 27 “Green Sheet” reflects his determination that he intended the January 29 order grant a 30 day extension from January 7, 2002 to February 7, 2002. Therefore, the February 28 brief was filed outside the time provided by the ALJ and we grant the claimant’s Motion to Strike.
The respondent’s Petition to Review alleged there is not sufficient evidence in the claimant’s testimony and the medical opinions of Dr. Kurtz to overcome the DIME physician’s mental impairment rating. The Petition also alleged the ALJ’s order is contrary to law. Even if we considered the respondent’s brief in support of the petition to review, it would not alter our conclusion that the respondent’s contentions are without merit.
Section 8-42-107(8)(c), C.R.S. 2001, provides that the DIME physician’s impairment rating is binding unless overcome by “clear and convincing evidence.” As argued by the claimant, clear and convincing evidence has been defined as evidence which demonstrates that it is “highly probable” the DIME physician’s rating is incorrect. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Further, “clear and convincing” evidence is not restricted to medical evidence or live medical testimony.
The determination of whether the claimant sustained his burden of proof is a question of fact for resolution by the ALJ. Consequently, we must uphold the ALJ’s factual determinations if supported by substantial evidence in the record and the applicable law. Section 8-43-301(8), C.R.S. 2001; Metro Moving Storage Co. v. Gussert, supra. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. City of Colorado Springs v. Givan, 897 P.2d 753 (Colo. 1995).
Under the substantial evidence standard, we must view the evidence in the light most favorable to the prevailing party, and defer to the ALJ’s assessment of the sufficiency and probative weight of the evidence. Furthermore, the ALJ’s credibility determinations are binding, except in an extreme situation where the credited testimony is rebutted by such hard, indisputable and certain evidence that it would be an error as a matter of law to believe the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). We do not perceive these extreme circumstances here. Thus, the scope of our review is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert, 914 P.2d at 415.
The ALJ’s pertinent findings of fact are amply supported by the record and the ALJ’s conclusions reflect a proper application of the law. Further, the claimant’s hearing testimony that he continues to experience significant symptoms of depression supports the ALJ’s implicit inference that the claimant’s condition did not improve between the evaluation of Dr. Kurtz and the DIME.
The respondent’s arguments essentially request that we reweigh the evidence and substitute our judgment for that of the ALJ concerning the credibility of the claimant and the sufficiency and probative weight of Dr. Kurtz’ opinions. However, these are matters within the sole province of the ALJ and we have no authority to reweigh the evidence on review City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Consequently, the respondent’s arguments do not establish grounds which afford us a basis to interfere with the ALJ’s award of permanent partial disability benefits. Metro Moving Storage Co. v. Gussert, supra.
Finally, we note the respondent’s Designation of Record includes the “complete Division of Administrative Hearings file and any documents on file with the Divisions [sic] of Workers’ Compensation.” The record transmitted to us on appeal apparently does not include the Division of Workers’ Compensation file. Moreover, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the respondent requested the ALJ to consider documents on file with the Division of Workers’ Compensation which were not on file with the Division of Administrative Hearings as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(7), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we did not obtain or consider the Division of Workers’ Compensation file, and restricted our review to the record made at the hearing.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 25, 2001, 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. 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 April 1, 2002 to the following parties:
Brian D. Cameron, 1235 — 2145 Drive, Eckert, CO 81418
Ultramar Diamond Shamrock, 6000 N. Loop, 1604-W, San Antonio, TX 78249
Jody Hohman, Corporate Claims Management, P. O. Box 696080, San Antonio, TX 78269-6080
Stephanie M. Selden, Esq., 1526 Spruce St., #210, Boulder, CO 80302 (For Claimant)
Timothy L. Nemechek, Esq., 1200 17th St., #1700, Denver, CO 80202 (For Respondents)
BY: A. Pendroy