W.C. No. 4-510-204.Industrial Claim Appeals Office.
June 3, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ). The claimant contends the ALJ erred by failing to convert a scheduled impairment rating to a whole person rating, and by finding the claimant failed to overcome the Division independent medical examination (DIME) physician’s determination that the claimant’s cervical condition was not caused by the industrial injury. We affirm.
The claimant injured his right shoulder in an admitted injury of February 7, 2001. Ultimately, the claimant underwent a DIME on the issue of medical impairment. The DIME physician assigned a 12 percent upper extremity impairment based on reduced range of motion in the shoulder joint. This impairment converted to a 7 percent whole person impairment. The claimant also argued that the industrial injury caused impairment of the cervical region. However, the DIME physician opined the claimant’s neck symptoms are not caused by the industrial injury.
The ALJ found the claimant failed to prove by a preponderance of the evidence that he has sustained functional impairment beyond the arm at the shoulder. In support, the ALJ relied on the DIME physician’s opinion that the functional impairment affects the use of the arm. Consequently, the ALJ awarded a 12 percent impairment under the schedule of disabilities.
The ALJ further found the claimant failed to overcome by clear and convincing evidence the DIME physician’s opinion that the claimant’s neck condition is unrelated to the industrial injury. The DIME physician’s opinion was based on evidence that the neck symptoms did not develop for approximately six months after the industrial injury and six weeks after shoulder surgery. The DIME physician also noted the existence of a degenerative condition of the cervical spine which was independently capable of producing the claimant’s symptoms. Finally, the ALJ was not persuaded by the conflicting opinions of Dr. Motz.
The claimant filed a timely petition to review citing certain errors discussed below. However, the claimant failed to file a brief in support of the petition to review. Further, the claimant failed to procure a transcript of the hearing.
I.
On review, the claimant contends the ALJ erred in determining that he failed to overcome the DIME physician’s opinion that the cervical condition is unrelated to the industrial injury and, therefore, not ratable as a whole person. The claimant “concedes” there are “optional Findings of Fact that can support the view that the Claimant is not entitled to a whole person rating on his neck,” but requests reconsideration of the evidence.
The rating of medical impairment inherently requires a determination of whether a particular impairment is causally related to the industrial injury. Consequently, the DIME physician’s finding that an impairment was or was not caused by the industrial injury must be overcome by clear and convincing evidence. Section 8-42-107 (8) (c), C.R.S. 2003, Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002), Qual-Med v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998).
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. 2003. This standard of review requires us to view the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). Further, in cases such as this where the appealing party fails to procure a transcript of the hearing, we must presume the ALJ’s findings concerning the testimony are supported by substantial evidence in the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).
Here, the DIME physician explained in his report the reasons why he believes the claimant’s neck condition is the result of a pre-existing degenerative condition rather that the industrial injury. Although there are conflicting medical opinions, it was for the ALJ to assess the relative weight of the evidence and determine whether the claimant presented sufficient evidence to overcome the DIME physician’s opinion. On this record, the ALJ was certainly not required to find the DIME physician’s opinion was overcome, and we may not substitute our judgment for his concerning the weight and credibility of the evidence. Thus, there is no basis for interfering with the order.
II.
The claimant next contends the ALJ erred in finding that he failed to prove functional impairment beyond the arm at the shoulder. The claimant asks that we review his testimony and that of the DIME physician. We perceive no error.
The question of whether the claimant’s injuries are found on the schedule is one of fact for determination by the ALJ. Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996); Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996). In resolving the issue the ALJ must determine the situs of the functional impairment, and the site of the functional impairment is not necessarily the site of the injury itself. While the situs of the functional impairment is distinct from the physician’s impairment rating under the AMA Guides, the rating may be considered in determining the issue. Strauch v. PSL Swedish Healthcare System, supra. Because the issue is factual, we must determine whether substantial evidence exists to support the ALJ’s resolution of the issue. Walker v. Jim Fuoco Motor Co., 942 P.2d 1390 (Colo.App. 1997).
Although the DIME physician’s deposition testimony may be subject to various interpretations, the ALJ credited that portion of the testimony in which the DIME physician opined the functional impairment is to the claimant’s arm, and results from damage to the shoulder joint rather than structures beyond the joint. Moreover, the DIME physician refused to rate the neck. Thus, there is substantial evidence to support the award, even though some evidence might support a contrary result. Walker v. Jim Fuoco Motor Co., supra.
We cannot evaluate the sufficiency of the evidence to support the ALJ’s findings concerning the claimant’s testimony because the claimant failed to provide a transcript of the hearing. The ALJ’s findings concerning the substance of the claimant’s testimony do not require a different result as a matter of law.
We note the claimant’s petition to review requests “a finding as to status.” We are unable to understand the meaning of this request and cannot address it.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 30, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_____________________ David Cain
_____________________ Robert M. Socolofsky
Donald Clark, Parker, CO, Albert A. Jerman, #53, Kaiser Hill Company, Golden, CO, Legal Department, Pinnacol Assurance — Interagency Mail, Marshall A. Fogel, Esq., Denver, CO, (For Claimant).
Anne Smith Myers, Esq. and Willow I. Arnold, Esq., Denver, CO, (For Respondents).