W.C. No. 4-491-465Industrial Claim Appeals Office.
July 3, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Muramoto (ALJ) which awarded permanent partial disability benefits based on scheduled impairments of the upper extremities. The claimant contends the ALJ should have afforded presumptive effect to the opinion of the Division-sponsored independent medical examination (DIME) physician that the claimant sustained whole person impairments. We affirm.
The claimant sustained compensable injuries to both upper extremities. Treatment included bilateral carpal tunnel surgeries. The treating physician placed the claimant at maximum medical improvement in July 2001 and assigned a 2 percent impairment for the claimant’s right upper extremity.
The claimant underwent a DIME on the issue of impairment. The DIME physician diagnosed Type II cumulative trauma disorder affecting both upper extremities, and assigned 8 percent upper extremity impairment ratings for each extremity. The DIME physician opined the upper extremity ratings should be converted to whole person ratings because of the “bilateral nature of the patient’s problem, which does extend up to the neck.” The DIME physician assigned a combined 15 percent whole person rating for the claimant’s injuries.
The claimant also underwent an IME at the respondents’ request. The IME physician, Dr. Primack, opined the claimant suffers from Type I cumulative trauma disorder of both upper extremities. However, based on the claimant’s description of his functional limitations, Dr. Primack opined the claimant does not have functional impairment beyond the elbows, and that the upper extremity impairments should not be rated as a whole person. Dr. Primack assigned an 8 percent left upper extremity rating and a 9 percent right upper extremity rating.
The ALJ held the question of whether the claimant sustained scheduled or whole person impairments is one of fact to be determined under the preponderance of the evidence standard. Applying this standard, the ALJ found Dr. Primack’s opinions to be credible and persuasive. Consequently, the ALJ awarded scheduled impairments based on Dr. Primack’s upper extremity ratings.
The claimant filed a timely petition to review. Following a remand, it was determined that the claimant did not file a timely brief in support of the petition to review, and has not shown good cause for granting an extension of time to file a brief. Consequently, we consider the arguments specifically set forth in the claimant’s petition to review.
The claimant argues the ALJ applied an incorrect burden of proof because she was obligated to give presumptive effect to the DIME physician’s opinion that the claimant sustained whole person impairment. We reject this argument.
We recently addressed this issue in Webb v. Circuit City Stores, Inc.,
W.C. No. 4-467-005 (August 16, 2002). We stated the following:
Initially, we agree with the claimant that the ALJ was not required to find by clear and convincing evidence that the claimant overcame the DIME physician’s impairment rating. The initial question of whether the claimant sustained a scheduled or non-scheduled rating is one of fact for determination by the ALJ. That determination depends on whether the claimant establishes the industrial injury caused functional impairment not found on the schedule of disabilities. Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996). Although the opinions and findings of the DIME physician may be relevant to this determination, a DIME physician’s opinion is not mandated by the statute nor is the ALJ required to afford it any special weight. See Delaney v. Industrial Claim Appeals Office, 30 P.3d 691 (Colo.App. 2000). It is only after the ALJ determines the claimant sustained whole person impairment that the DIME physician’s rating becomes entitled to presumptive effect under § 8-42-107(8)(c), C.R.S. 2001. See Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998) (DIME provisions do not apply to the rating of scheduled injuries).
In this case, the ALJ apparently required the claimant to prove non-scheduled functional impairment by clear and convincing evidence. However, that heightened burden of proof does not apply to the question of whether the claimant proved functional impairment outside the schedule. Rather, the ALJ determines this issue under the ordinary preponderance of the evidence standard mandated by § 8-43-201, C.R.S. 2001. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186
(Colo.App. 2002) (DIME physician’s opinions only given “presumptive effect” when expressly required by the Act). [Note: The official citation for Cordova did not appear in original text of the ICAP order because the case had not yet been published in the Pacific Reporter]. However, any error in this regard benefited the respondents and does not require setting the order aside.
We adhere to the principles discussed in Webb v. Circuit City Stores, supra, and the authorities cited therein. Thus, we conclude the ALJ applied the proper burden of proof when evaluating the evidence in this case, and did not err by failing to give presumptive weight to the DIME physician’s opinion that the claimant sustained whole person impairment See also, Olson v. Foley’s, W.C. No. 4-326-898 (September 12, 2000).
Insofar as the claimant asserts the evidence was insufficient to support the ALJ’s decision to award scheduled benefits, we disagree. It is well established that the question of whether the claimant sustained a “loss of an arm at the shoulder” within the meaning of §8-42-107(2)(a), C.R.S. 2002, or a whole person medical impairment compensable under § 8-42-107(8)(c), is one of fact for determination by the ALJ. In resolving this question the ALJ must determine the situs of the claimant’s “functional impairment,” and the site of the functional impairment is not necessarily the site of the injury itself. Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996); Strauch v. PSL Swedish Healthcare System, supra. A physician’s rating is not dispositive of this question, although it is certainly relevant. Strauch v. Swedish Healthcare System, supra.
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. 2002. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The claimant’s argument notwithstanding, Dr. Primack’s report and deposition testimony provide ample support for the ALJ’s finding that the claimant did not sustain functional impairment beyond the arm at the shoulder. Dr. Primack’s opinion was largely based on the claimant’s own statements concerning the effects of the injuries on the use of his upper extremities. (Primack Depo. Pp. 7-8; Finding of Fact 7). It is true that some evidence in the record, including the claimant’s testimony and the report of the DIME physician, would provide the basis for an alternative conclusion. However, we may not substitute our judgment for that of the ALJ concerning the weight and credibility of the evidence. Thus, there is no basis for interfering with the order. Cf. Walker v. Jim Fuoco Motor Co., 942 P.2d 1390 (Colo.App. 1997).
IT IS THEREFORE ORDERED that the ALJ’s order dated June 3, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Robert M. Socolofsky
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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed July 3, 2003 to the following parties:
Patrick Cass, 1091 Sir Galahad Dr., Lafayette, CO 80026
Kaiser-Hill Company, L.L.C., c/o Albert Jerman, 10808 Hwy. 93, Unit B, Bldg. No. 850, Golden, CO 80403-8200
Stacy Strickland, G. E. Young, Inc., 4251 Kipling St., #510, Wheat Ridge, CO 80033
John G. Taussig, Jr., Esq., 1919 14th St., #803, Boulder, CO 80302 (For Claimant)
Benjamin E. Tracy, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210 (For Respondents)
By: A. Hurtado