W.C. No. 4-319-091Industrial Claim Appeals Office.
February 14, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Rumler (ALJ) which awarded permanent partial disability benefits based on medical impairment of 35 percent of the whole person. The respondents dispute the ALJ’s determination that the claimant proved by clear and convincing evidence that he sustained whole person impairment of the cervical and thoracic spine. The respondents also assert the ALJ “ignored” the testimony of the Division-sponsored independent medical examination (IME) physician concerning the extent of the claimant’s upper extremity impairment. We affirm.
The claimant sustained a compensable injury on September 23, 1996, when he fell at work. The claimant was diagnosed with a massive tear of the rotator cuff which required two separate surgeries. Following the second surgery the claimant underwent a course of physical therapy. The ALJ found the physical therapy resulted in an additional injury to the claimant’s neck and upper back.
In December 1997 the claimant’s treating physician assessed the claimant as suffering from an 8 percent upper extremity impairment based on lost range of motion and continuing “pain and crepitation.” The treating physician converted the rating to a 5 percent whole person impairment. Another examining physician opined the claimant sustained an 18 percent upper extremity impairment, which he converted to an 11 percent whole person impairment.
The claimant also underwent a Division-sponsored IME on the issue of medical impairment. The IME physician, Dr. Douthit, assessed a 33 percent upper extremity based on reduced range of motion, “loss of power,” and impairment of the axillary nerve. Dr. Douthit converted the extremity rating to a 20 percent whole person impairment rating. (Douthit IME report, September 15, 1998).
Later, the Division of Workers’ Compensation referred the claimant back to Dr. Douthit “to provide a rating for the exacerbation of [the claimant’s] neck during physical therapy.” However, Dr. Douthit declined to rate the claimant’s cervical impairment. Instead, in a report dated February 15, 1999, he stated that he did not consider the claimant’s neck problems to be an “associated injury,” and his rating “allowed for [the claimant’s] loss of function of the right shoulder and weakness due to loss of strength, providing a 20% whole person impairment rating.” In his deposition, Dr. Douthit stated that he believed the claimant’s neck symptoms were a “natural consequence of therapy” and that he was “not sympathetic with people who claim that they are injured in physical therapy.” (Douthit depo. p. 25). Dr. Douthit also testified that the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides) do not permit “generous ratings” for rotator cuff tears, and create “rather arbitrary methods of rating.” Dr. Douthit stated that he believed his rating took into consideration all of the claimant’s “complaints” and he would be “reluctant to add more impairment for” the claimant’s cervical condition. (Douthit depo. pp. 22-23). Dr. Douthit did not provide a specific rating for the claimant’s shoulder condition in the event a separate rating is assigned for the cervical condition.
At hearing, the claimant sought to demonstrate that the shoulder injury entitled her to a whole person rather than an extremity rating. The claimant also sought to establish entitlement to whole person medical impairment benefits based on injury to the cervical and thoracic spine. In support, the claimant submitted the IME report of Dr. Bralliar dated June 3, 1999. Dr. Bralliar noted that the medical records indicated the claimant’s cervical and thoracic complaints substantially worsened following the commencement of physical therapy. Consequently, Dr. Bralliar opined, based on the AMA Guides, that the claimant has a 19 percent impairment of the cervical and thoracic spine based on specific disorders and lost range of motion. Dr. Bralliar combined the 19 percent rating with Dr. Douthit’s 20 percent rating for the shoulder injury, and arrived at an overall impairment rating of 35 percent of the whole person.
The ALJ found the claimant sustained injury to the cervical and thoracic spine as a result of the physical therapy in August 1997. The ALJ described this injury as a “natural consequence of the [claimant’s] original injury,” and concluded that it is compensable in connection with the original injury. Relying on the report of Dr. Bralliar, the ALJ also found the claimant demonstrated by clear and convincing evidence that the Division IME physician was incorrect in failing to include a rating for the cervical and thoracic injuries. The ALJ further found that the IME physician’s “rating of 20 percent whole person for the claimant’s initial injury to the shoulder is believable.” Consequently, the ALJ adopted the 35 percent whole person impairment rating issued by Dr. Bralliar.
With respect to the claimant’s shoulder injury, the ALJ further found that the claimant sustained impairment “above the level of the arm.” Consequently, the ALJ held the claimant “clearly and convincingly established that he sustained functional impairment to the shoulder outside the schedule.”
I.
The respondents first contend the claimant failed to prove by clear and convincing evidence that there was any impairment “outside the shoulder.” In support of this proposition, the respondents point out that Dr. Bralliar was the only physician to assess cervical and thoracic impairment, and three other physicians, including the Division-IME physician, found no such impairment. We reject this argument.
Here, the Division-sponsored IME physician opined the claimant did not sustain rateable impairment to the cervical or thoracic spine as a result of the injury. Because the rating process requires the IME physician to identify and evaluate all losses and restrictions resulting from the industrial injury, his determination that there was no rateable impairment of the cervical and thoracic spine was binding on the ALJ unless overcome by clear and convincing evidence. See Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998); Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998); §8-42-107 (8) (c), C.R.S. 1999.
The question of whether the claimant overcame the opinion of Dr. Douthit that the claimant had no injury-related cervical and thoracic impairment was one of fact for determination by the ALJ Qual-Med, Inc. v. Industrial Claim Appeals Office, supra; Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Because the issue is factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999. In this regard, it was for the ALJ to assess the weight and credibility to be afforded the testimony and opinions of the medical experts. Metro Moving and Storage Co. v. Gussert, supra. Further, the existence of substantial evidence does not depend upon the number of witnesses called in favor or in opposition to a certain proposition. See Jachetta v. Milano, 147 Colo. 100, 362 P.2d 1065 (1961).
The respondents’ arguments notwithstanding, the record contains substantial evidence to support the ALJ’s finding that the claimant proved by clear and convincing evidence that he sustained ratable cervical and thoracic spinal impairment as a result of physical therapy provided for the underlying industrial injury. The physical therapy notes of August 25, 1997, September 2, 1997, and October 2, 1997, demonstrate the physical therapist’s opinion that the claimant sustained a cervical injury during treatment. This medical evidence was corroborated by the claimant’s testimony. (Tr. p. 11). Finally, Dr. Bralliar’s expert opinion provides evidence that the claimant was injured as a result of the physical therapy, and that the injury resulted in a rateable impairment of the cervical and thoracic spine.
It is true that three physicians gave substantially lower ratings than Dr. Bralliar, and these physicians did not include any rating for the claimant’s back. However, the relative weight to be afforded the opinions of the three physicians was a factual matter for the ALJ. In this regard, we note that none of the three physicians relied upon by the respondents issued the same rating. In fact, the Division IME physician was critical of the ratings issued by the other two physicians. Thus, we cannot say the ALJ erred in concluding the claimant met his burden of proof to overcome the causation determination of the Division IME physician.
II.
The respondents next contend the ALJ erred in assessing a 35 percent whole person impairment rating in accordance with Dr. Bralliar’s report. The respondents assert the ALJ “ignored” the Division IME physician’s opinion that his rating accounted for all of the claimant’s complaints and that he was reluctant to award a higher rating based on the claimant’s cervical problems. We find no error.
The questions of whether a party has overcome the Division IME physician’s rating, and whether the Division IME physician properly applied the AMA Guides in arriving at the rating, are issues of fact for the ALJ. Metro Moving and Storage Co. v. Gussert, supra. Thus, the ALJ’s order must be upheld if supported by substantial evidence. Further, the ALJ is not held to a crystalline standard in expressing findings of fact as long as the basis of the order is clear. Riddle v. Ampex Corp., 839 P.2d 489
(Colo.App. 1992).
Here, the ALJ was persuaded that the Division IME physician misapplied the AMA Guides because he failed to include a rating for the claimant’s cervical condition. This determination was largely based on the report of Dr. Bralliar, who opined the claimant had sustained cervical and thoracic impairment, and that it was proper to combine the rating for these conditions with the IME physician’s rating for the claimant’s shoulder injury. Although the Division IME physician indicated he would have issued a lower rating for the shoulder if he had known the claimant’s cervical condition would be rated separately, this testimony merely presented a conflict with the report of Dr. Bralliar which the ALJ was entitled to resolve as the finder of fact. Moreover, the Division IME physician never stated what rating he would have issued if he had known the cervical rating would be issued.
Finally, the report of Dr. Bralliar reveals that the rating of the claimant’s cervical and thoracic condition was based on entirely different sections of the AMA Guides than was the IME physician’s rating for the shoulder condition. Under these circumstances, we cannot say the record lacks substantial evidence to support the ALJ’s determination that the claimant proved by clear and convincing evidence that he is entitled to permanent partial disability benefits based on a 35 percent whole person impairment rating.
In light of these conclusions we reject the respondents’ assertion that the ALJ “ignored” the Division IME physician’s testimony. Rather, the order as a whole reveals the ALJ was unpersuaded by that portion of the IME physician’s testimony cited by the respondents.
Because the evidence supports the ALJ’s determination that the claimant proved separate regional impairments, at least one of which (cervical/thoracic) is ratable as a whole person under the AMA Guides, the claimant is entitled to a single whole person impairment rating under the applicable statute. See Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996); § 8-42-107 (7), C.R.S. [significantly amended for injuries occurring on or after July 1, 1999, 1999 Colo Sess. Laws, ch. 103, at 298-300]. Consequently, we need not consider the ALJ’s separate ruling that the claimant’s shoulder injury resulted in “functional impairment” beyond the schedule, and that this impairment would itself entitle the claimant to a whole person impairment rating. We also note the respondents do not challenge the ALJ’s ruling that, for legal purposes, the injury sustained during physical therapy should be treated as a compensable consequence of the underlying industrial injury.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 13, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed February 14, 2000
to the following parties:
Guerrero Cano, 125 14th Ave., #28, Greeley, CO 80631
Home Lumber Supply Co., P.O. Box 878, Littleton, CO 80160-0878
Lumbermens Mutual Insurance Co., Deb Heisler, Kemper, P.O. Box 5347, Denver, CO 80217-5347
Susan D. Phillips, Esq., 155 S. Madison, #330, Denver, CO 80209 (For Claimant)
Matthew W. Tills, Esq., 950 17th St., 21st floor, Denver, CO 80202 (For Respondents)
BY: A. Pendroy