W.C. No. 4-118-530Industrial Claim Appeals Office.
May 30, 1997
FINAL ORDER
The claimant seeks review of a final order of Chief Administrative Law Judge Felter (ALJ) which awarded benefits based on the schedule of disabilities. We affirm.
Insofar as pertinent, the ALJ found that the claimant suffered from cumulative trauma disorder (CTD) as a result of her employment. Although there was conflicting expert medical evidence, the ALJ credited the opinion of Dr. Aschberger that the claimant sustained an impairment of sixteen percent of each upper extremity.
It was undisputed that Dr. Aschberger did not require the claimant to engage in six to eight hours of work activity prior to his examination. However, Dr. Aschberger testified that his rating was based on median nerve damage and that pre-examination work activity was unnecessary when measuring impairment under this approach.
On review, the claimant contends that the ALJ erred in awarding medical impairment benefits based upon the schedule of disabilities. The claimant reasons that Dr. Aschberger violated a provision of the American Medical Association Guides to the Evaluation of Permanent Impairment,
Third Edition (Revised) (AMA Guides) because he did not require the claimant to engage in work activity prior to the examination. The claimant also points out that materials from the “Level II Accreditation Course” state that, in CTD cases, claimants should be tested after six to eight hours of work. We are not persuaded.
Initially, we note that the claimant argues in her brief that the ALJ should have assessed the evidence differently concerning the situs of the claimant’s medical impairment. However, those arguments were apparently addressed to the ALJ as fact-finder. Section 8-43-301(4), C.R.S. (1996 Cum. Supp.). Consequently, we do not consider them here.
Next, the AMA Guides, page 14, states as follows:
“If an impairment rating is being given for cumulative trauma disorders, it is suggested that evaluation take place after the individual has worked for six to eight hours.”
The Level II Accreditation Course materials reiterate this statement.
However, Dr. Aschberger’s failure to require the claimant to undergo six to eight hours of work did not require the ALJ to disregard Dr. Aschberger’s rating, or compel the ALJ to award benefits under the whole person provisions of the Act. First, we do not dispute that Dr. Aschberger was required to apply the AMA Guides in assessing the claimant’s degree of medical impairment under the schedule. Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo.App. 1996). However, it has been held that the question of whether a physician has properly applied the AMA Guides in arriving at an impairment rating is a question of fact for resolution by the ALJ. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.). In applying this standard, we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, supra.
Dr. Aschberger testified that the AMA Guides provide for more than one method of rating injuries which fall in the classification of CTD. He also testified that where a rating is given based on impairment of the median nerve, it is unnecessary for the claimant to work six to eight hours prior to the rating. Further, he opined that the “suggestion” that a claimant work prior to an impairment rating examination is unnecessary where, as here, the claimant is restricted from returning to the type of work performed prior to the injury. Even the claimant’s expert, Dr. Bralliar, conceded that he does not require claimants to work six to eight hours prior to an examination.
Under these circumstances, the evidence supports the ALJ’s determination that Dr. Aschberger’s rating was in accordance with the AMA Guides. Consequently, we decline the claimant’s invitation to substitute our judgement for that of the ALJ concerning the weight and credibility of the expert medical testimony. The mere fact that the evidence might support a contrary finding and conclusion is immaterial on review. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
The claimant also argues that the ALJ’s findings of fact concerning Dr. Bralliar’s assessment of the claimant’s impairment are not consistent with the evidence. However, our review of the ALJ’s findings of fact and conclusions of law does not support the claimant’s assertion. In the conclusions of law, the ALJ specifically states that Dr. Bralliar assigned “an impairment rating of twenty percent of each of the upper extremities.” In finding of fact 9, the ALJ states that Dr. Brailliar assigned a “twelve percent” whole person rating for each of the claimant’s upper extremities. Thus, the ALJ’s order reflects that he understood Dr. Bralliar’s conversion of the claimant’s extremity ratings to a whole person rating.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 26, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Orderis 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 AppealsOffice and all other parties, within twenty (20) days after the date theOrder was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996Cum. Supp.).
Copies of this decision were mailed May 30, 1997 to the following parties:
Deborah L. Carson, 6707 Gray Court, Arvada, CO 80003
Amax Gold, Inc. Attn: Ann Brennan, P.O. Box 6940, Englewood, CO 80155-6940
CNA Risk Management Group, Attn: Donna Mungin, P.O. Box 740152, Atlanta, GA 30374-0152
William J. Macdonald, Esq., 1890 Gaylord St., Denver, CO 80206 (For the Claimant)
Lawrence D. Blackman, Esq., 1515 Arapahoe St., Tower 3, Ste. 600, Denver, CO 80202 (For the Respondents)
By: ____________________________