W.C. Nos. 3-115-788, 4-311-805Industrial Claim Appeals Office.
May 28, 1997
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) dated December 26, 1996, insofar as the ALJ awarded permanent partial disability benefits. We affirm.
The claimant suffered two compensable injuries while employed for Mill Inn Inc. (Mill Inn). On February 16, 1991, the claimant injured her low back and hips. At the time of the injuries, Mill Inn was insured for workers’ compensation by the Transamerica Insurance Group (TIG). On May 3, 1994, while Mill Inn was insured by the Colorado Compensation Insurance Authority (CCIA), the claimant injured her middle and upper back, and cervical spine.
In 1995, Dr. Primack reported that the claimant sustained permanent medical impairment of five percent of the whole person. Dr. Primack apportioned two percent of the impairment to the claimant’s non-industrial activities, and three percent of the impairment to the 1991 injuries. However, in 1996, Dr. Primack revised his impairment rating. Dr. Primack apportioned three percent of the claimant’s five percent impairment to the 1994 injuries, one percent to the claimant’s non-industrial activities which caused the claimant’s back to be sore, and one percent to the 1991 injuries.
Dr. Patterson rated the claimant’s permanent impairment as eighteen percent of the whole person. Dr. Patterson apportioned two-thirds of the impairment to the 1991 injuries and one-third of the impairment to the 1994 injuries.
At the conclusion of a hearing on November 19, 1996, the ALJ orally ruled that the claimant is entitled to permanent partial disability benefits in accordance with Dr. Patterson’s medical impairment rating. However, in a Summary Order dated November 26, 1996, the ALJ expressly “overruled” his oral findings. Instead, the ALJ determined that the claimant sustained permanent partial disability of five percent of the whole person from the 1991 injuries. Consequently, the ALJ ordered TIG to pay permanent partial disability benefits in accordance with that determination.
The ALJ also determined that the 1994 injury claim is governed by §8-42-107(8)(c), C.R.S. (1995 Cum. Supp.) [amended in 1996], which requires the authorized treating physician to determine the claimant’s permanent medical impairment, and provides that determination is binding in the absence of an independent medical examination (IME).The ALJ determined that Dr. Patterson is the authorized treating physician for the 1994 injuries. Therefore, the ALJ determined that unless the CCIA requests an IME under the provisions of § 8-42-107(8)(c), the parties were bound by Dr. Patterson’s finding that the claimant sustained medical impairment of six percent of the whole person from the 1994 injuries.
On December 26, 1996, the ALJ entered specific findings of fact and conclusions of law consistent with his Summary Order. The claimant timely appealed the December 26 order.
I.
First, we reject the claimant’s contention that it was error for the ALJ to issue a written order which is inconsistent with his oral findings. Contrary to the claimant’s assertion, the ALJ was not bound by his oral findings. Rather, the ALJ was free to reconsider the matter before issuing a summary order.
Although an ALJ’s oral findings may be considered in ascertaining the basis of a written order, it is the ALJ’s written findings, and not his oral statements, which are subject to review. Wait v. Jan’s Malt Shoppe, 736 P.2d 1265 (Colo.App. 1987) (ALJ’s order does not enter until it is set forth in writing and copies are mailed to parties); Neoplan USA Corp. v. Industrial Commission, 721 P.2d 157 (Colo.App. 1986). Consequently, where there is a conflict between the ALJ’s written order and his oral findings, the written order controls. It follows that the inconsistency between the ALJ’s oral and written findings does not afford us grounds for granting appellate relief. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.).
II.
The claimant’s remaining arguments concern the ALJ’s award of permanent disability benefits in the 1991 injury claim. The claimant contends that the ALJ erred in failing to award benefits in accordance with Dr. Patterson’s opinion that the claimant sustained twelve percent whole person impairment from the 1991 injuries. Further, the claimant contends that the ALJ’s findings of fact are insufficient to ascertain the basis for his determination that the claimant sustained six percent disability from the 1991 injuries, and that this determination is contrary to the applicable law and the record. We disagree.
The ALJ’s order expressly reflects his recognition that the 1991 injuries are not governed by the medical impairment provisions of §8-42-107(8)(c). See Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992) (Senate Bill 91-218 applies to injuries occurring on or after July 1, 1991). Instead, the 1991 injury claim is governed by former § 8-42-110(1)(b), C.R.S. (1990 Cum. Supp.), which requires the ALJ to determine permanent partial disability based upon consideration of the “manifest weight of the evidence,” and the claimant’s “general physical condition and mental training, ability, former employment and education.” American Metals Climax, Inc. v. Cisneros, 195 Colo. 163, 576 P.2d 553 (1978). Furthermore, under §8-42-110(1)(b), the ALJ has wide discretion in determining the claimant’s degree of permanent impairment, and is not bound by the medical impairment rating of any particular physician. See Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995).
Because the determination of permanent disability under §8-42-110(1)(b) is a factual question for the ALJ, 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.); American Metals Climax, Inc. v. Cisneros, supra. Substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4
(Colo.App. 1995).
Here, the ALJ found that the evidence concerning the claimant’s disability from the 1991 injuries was not “comprehensive.” However, upon consideration of the claimant’s “general physical condition, mental training, her ability, former employment and education,” the ALJ determined that the claimant suffered permanent partial disability of five percent of the whole person due to the 1991 hip and low back injuries. See Conclusions of Law 3.
Although the ALJ was not bound by the rating of either physician, inasmuch as the ALJ’s determination falls between the ratings of Dr. Primack and Dr. Patterson, we conclude that there is substantial evidence to support it. See Tri-State Insurance Co. v. Industrial Commission, 151 Colo. 494, 379 P.2d 388 (1963); see also Colorado AFL-CIO v. Donlon; Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340
(Colo.App. 1981) (even uncontroverted medical evidence not binding on the ALJ). The ALJ could have adopted Dr. Primack’s one percent rating and awarded benefits accordingly. See Gilliatt v. Industrial Commission, 680 P.2d 1310 (Colo.App. 1983). Therefore, we perceive no basis for disturbing the five percent award, which is somewhat higher than Dr. Primack’s rating, but is also somewhat less than the rating of Dr. Patterson. The ALJ need not specify with mathematical precision, a specific basis for his assessment. See e.g., May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1986). Nor is it necessary that the award correspond to identifiable evidence in the record. See Tri-State Insurance Co. v. Industrial Commission, supra; American Metals Climax, Inc. v. Cisneros, supra (fact finder is afforded with the widest possible discretion in determining the degree of disability).
IT IS THEREFORE ORDERED that the ALJ’s order dated December 26, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ Kathy E. Dean
________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate this Orderis commenced in the Colorado Court of Appeals, 2 East 14th Avenue,Denver, CO 80203, by filing a petition for review with the court, withservice of a copy of the petition upon the Industrial Claim AppealsOffice and all other parties, within twenty (20) days after the date thisOrder is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996Cum. Supp.).
Copies of this decision were mailed May 28, 1997 to the following parties:
Margo A. Combs, 609 Wagon Trail, Grand Junction, CO 81504
Mill Inn, P.O. Box 1712, Grand Junction, CO 81502
Colorado Compensation Insurance Authority, Attn: Brandee L. DeFalco-Galvin, Esq. (Interagency Mail)
Jean Downing, Transamerica Insurance Group, P.O. Box 17005, Denver, CO 80217
Stacy R. Carpenter, Esq., 3154 Lakeside Dr., #103, Grand Junction, CO 81506 (For the Claimant)
John Connell, Esq., 1675 Larimer, Ste. 710, Denver, CO 80203 (For the Transamerica Respondents)
BY: ____________________________