W.C. No. 4-126-279Industrial Claim Appeals Office.
December 6, 1995
FINAL ORDER
The respondents seek review of an order issued by Chief Administrative Law Judge Felter which awarded permanent partial disability benefits pursuant to § 8-42-107(8), C.R.S. (1995 Cum. Supp.). We affirm.
The claimant suffered compensable injuries in 1992. The treating physician, Dr. Brock, rated the claimant’s impairment as 19 percent of the whole person due to range of motion deficits in the claimant’s lumbar and cervical spine. Thereafter, the claimant underwent a Division sponsored independent medical examination (IME) by Dr. McCranie, who rated the claimant’s impairment as 10 percent of the whole person due to cervical pain, lumbar pain and loss of range of motion in the cervical spine. The claimant was then evaluated by Dr. Hemler, who rated the claimant’s impairment as 17 percent of the whole person based upon spinal impairment of 15 percent, and right shoulder impairment measured as 3 percent of the upper extremity, which he converted to 2 percent of the whole person.
The ALJ determined that the claimant overcame Dr. McCranie’s impairment rating by clear and convincing evidence. As a consequence, the ALJ ordered the respondents to pay permanent partial disability benefits based upon medical impairment of 17 percent of the whole person.
I.
Initially, we reject the respondents’ contention that the ALJ’s findings of fact are insufficient to permit appellate review. We have no difficulty ascertaining the evidence the ALJ found persuasive. Therefore, it is not necessary to remand the matter for additional findings. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
The ALJ’s findings of fact reflect that he was persuaded by the claimant’s testimony and the opinions of Dr. Hemler. The ALJ explicitly found the claimant’s testimony credible and consistent with the medical evidence. He further found that “the evaluation performed by Dr. Hemler more accurately reflects the impairment suffered by the Claimant,” than the impairment rating by Dr. McCranie.
The ALJ determined that the industrial injuries caused permanent impairment to the claimant’s right shoulder, and insofar as Dr. McCranie did not include a rating for the permanent impairment of the claimant’s right shoulder, it was highly probable that Dr. McCranie’s medical impairment rating is inaccurate. This determination was based upon the claimant’s testimony that she has continuing problems with her right shoulder and experiences stiffness and pain with repetitive type activities. The ALJ also found that according to the claimant, her “pain level varied from day to day but that her pain level and loss of range of motion levels on the dates that the examinations were performed by Dr. Brock and Dr. Hemler were more consistent with her normal range of motion abilities than the ranges of motion determined by Dr. McCranie.” (Finding of Fact 6).
Contrary to the respondents’ argument, the evidence the ALJ found persuasive constitutes substantial evidence to support the ALJ’s determination that the claimant suffered permanent impairment to the right shoulder. See Mountain City Meat Co., v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 94CE0015, January 26, 1995), cert. granted
October 30, 1995 (determining what part of the claimant’s body has been functionally impaired is factual issue for the ALJ); F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985) (substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences). Moreover, Dr. McCranie’s report reveals that Dr. McCranie did not include a rating for the functional impairment of the claimant’s right shoulder. Under these circumstances, there is substantial evidence that insofar as Dr. McCranie did not rate the claimant’s right shoulder impairment it is highly probable that Dr. McCranie did not accurately rate the claimant’s permanent impairment under the AMA Guides. Metro Moving Storage Co. v. Gussert,
___ P.2d ___ (Colo.App. No. 94CA1926, June 15, 1995) (“clear and convincing” evidence is evidence which renders a proposition highly probable and free from serious or substantial doubt).
We may not interfere with the ALJ’s credibility determinations or his assessment of the sufficiency and probative value of the evidence he found persuasive. Martinez v. Regional Transportation District, 832 P.2d 1060
(Colo.App. 1992). Therefore, we must uphold the ALJ’s determination that the claimant overcame the IME by clear and convincing evidence. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); Metro Moving Storage Co. v. Gussert, supra (ALJ’s finding that the IME is overcome by clear and convincing clear and confining is binding if supported by “substantial evidence” evidence). The respondents remaining arguments to the contrary are unpersuasive.
Specifically, the respondents contend that Finding of Fact 6 is not supported by the record. The respondents’ argument is based upon the claimant’s testimony that her typical condition was “the same” when she was examined by Dr. Hemler, Dr. Brock and Dr. McCranie. (Tr. p. 10). However, the claimant also stated that she had “good days and bad days.” (Tr. pp. 9-10). She testified that if she has been active or sitting a lot she has “back pain, much more of a stiffness and cramps.” She also stated that “it just so happened that I believe that I was having a good day on the day that I went and saw Dr. McCranie.” (Tr. pp. 9, 10).
To the extent the claimant’s testimony is inconsistent and subject to conflicting inferences, it was the ALJ’s sole prerogative to resolve the inconsistencies. Gelco Courier v. Industrial Commission, 702 P.2d 295
(Colo.App. 1985); West v. Aranda (Colo.App. No. 92CA1576, July 1, 1993) (not selected for publication) (inconsistencies, contradictory evidence and incomplete testimony are not uncommon to the adversary process). The ALJ resolved the conflicts against the respondents and credited the claimant’s testimony that her condition varies to some degree depending on her level of activity. Furthermore, the claimant’s testimony that she has more “bad days” than “good days” supports the ALJ’s inference that the claimant’s normal rate of motion was more consistent with her condition on the days she was examined by Dr. Hemler and Dr. Brock, than the “good day” she had at the time of the examination by Dr. McCranie.
II.
The respondents also argue that the ALJ erred in failing to limit the compensation for the claimant’s right shoulder impairment to a “scheduled disability” award. As the respondents concede, the Court of Appeals rejected their position in Mountain City Meat Co., v. Industrial Claim Appeals Office, supra; see also Durocher v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. Nos. 94CE0024, 94CE0025, May 18, 1995). However, the respondents contend that Mountain City Meat Co.
was wrongly decided, and seek to preserve their argument pending certiorari review by the Supreme Court.
We are bound by published opinions of the Court of Appeals. C.A.R. 35(f). Therefore, we must reject the respondents’ argument. For the same reasons, we reject the respondents’ contention that Metro Moving Storage Co. v. Gussert, supra, incorrectly held that the appellate standard for review of the ALJ’s determination that an IME has been overcome by clear and convincing evidence is whether the determination is supported by “substantial evidence.”
IT IS THEREFORE ORDERED that the ALJ’s order dated June 28, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed December 6, 1995 to the following parties:
Tammy D. Caya, 1909 Cottonwood St., Broomfield, CO 80020
Display Tech, Inc., Attn: George Clough, 2200 Central Ave., Ste C, Boulder, CO 80301
Colorado Compensation Insurance Authority, Attn: C. Kriksciun, Esq., (Interagency Mail)
Leonard Berenato, Esq., 1290 Broadway, #807, Denver, CO 80203
(For the Claimant)
BY: _______________________