W.C. No. 4-508-725Industrial Claim Appeals Office.
December 3, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied medical impairment benefits for whole person impairment and future medical benefits. We affirm.
In 2000 the claimant suffered a compensable injury to her right upper extremity while working as a legal editor. Ultimately, the claimant underwent a Division-sponsored independent medical examination (DIME). The Dime physician assigned a 12 percent impairment to the upper extremity for a stage III cumulative trauma disorder at the wrist with referred pain in the shoulder and neck. The 12 percent rating converts to 7 percent whole person impairment. The DIME physician also recommended maintenance treatment consisting of occupational hand therapy, physical therapy, chiropractic treatment, a trial of acupuncture and an evaluation for nerve entrapment if the claimant’s condition worsened.
The respondents filed a Final Admission of Liability for the payment of a scheduled disability award based on 12 percent impairment to the upper extremity and denied liability for future medical treatment. The claimant objected and requested medical impairment benefits based on 7 percent whole person impairment. The claimant also sought an award of future medical benefits.
The ALJ found the claimant suffered functional impairment to wrist and thumb. Therefore, the ALJ determined the claimant’s impairment is fully compensated by the scheduled disability award for 12 percent loss of use of the arm at the shoulder. Further, the ALJ determined the claimant failed to establish entitlement to future medical benefits. Therefore, the ALJ denied the request for additional benefits. The claimant timely appealed.
The claimant’s Petition to Review contends the ALJ acted in excess of his authority, and abused his discretion. The Petition also contends the ALJ’s order is not supported by the record or the applicable law. We reject these arguments.
We note that the claimant filed a Brief in Support of the Petition to Review on September 20, 2002. However, we conclude the Brief was not timely filed.
The record contains a notice of briefing schedule dated July 30, 2002, which required the claimant’s brief to be filed by August 19, 2002. On August 19, the claimant requested an extension of time to September 8, 2002, to file a brief in support of the petition to review. The request was granted on September 4, 2002.
The record does not contain any indication the claimant applied for any further extension of time or that any further extension was granted See Rules of Procedure Part VII (D)(2), 7 Code Colo. Reg. 1101-3. (request for extension to file brief must be filed within the time provided for filing the brief or request must be denied). We also note that the respondents did not file a brief in opposition to the petition to review. Under these circumstances, the claimant’s September 20 Brief has not been considered on appeal.
I.
Section 8-42-107(1), C.R.S. 2002, provides that the claimant is limited to a scheduled disability award if the claimant suffers an “injury or injuries” described in § 8-42-107(2), C.R.S. 2002. Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996). Under §8-42-107(2)(a), the partial “loss of an arm at the shoulder” is a scheduled disability.
Where the claimant suffers an injury or injuries not enumerated in § 8-42-107(2), the claimant is entitled to whole person impairment benefits under § 8-42-107(8), C.R.S. 2002. In the context of §8-42-107(1), the term “injury” refers to the part or parts of the body which have been functionally impaired or disabled as a result of the injury. Strauch v. PSL Swedish Healthcare System, 917 P.2d 366
(Colo.App. 1996).
The question of whether the claimant sustained a partial “loss of an arm at the shoulder” within the meaning of § 8-42-107(2)(a), or a whole person medical impairment compensable under § 8-42-107(8), 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.”Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996); Strauch v. PSL Swedish Healthcare System, supra.
Because the question of whether the claimant’s functional impairment appears on the schedule is one of fact, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002, Langton v. Rocky Mountain Healthcare Corp., supra. This standard requires us to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences which he drew from the evidence. Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995).
We have reviewed the record and the ALJ’s findings of fact. The ALJ’s findings are sufficient to permit appellate review, and the findings indicate that the ALJ resolved conflicts in the evidence based upon his credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489
(Colo.App. 1992).
The evidence, including the claimant’s testimony, is subject to conflicting inferences. (Tr. pp. 12, 41, 46) However, there is substantial evidence to support the ALJ’s finding that the industrial injury caused functional impairment to the wrist and thumb. Furthermore, the ALJ’s finding supports the denial of medical impairment benefits under § 8-42-107(8). See Walker v. Jim Fouco Motor Company, 942 P.2d 1390 (Colo.App. 1997); Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996).
II. Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988), allows an ALJ to award medical benefits after maximum medical improvement where there is substantial evidence in the record to support a determination that future medical treatment will be reasonable and necessary to relieve the effects of the industrial injury or prevent a deterioration of the claimant’s condition. Whether the claimant sustained her burden to prove entitlement to Grover-type medical benefits is a question of fact for resolution by the ALJ. Accordingly, the ALJ’s determinations must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609
(Colo.App. 1995). “Substantial evidence” is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. City of Colorado Springs v. Givan, 897 P.2d 753 (Colo. 1995).
Although the DIME physician recommended future medical treatment, the ALJ found that the DIME physician’s opinion, which was based on a single evaluation, was not entitled to as much weight as the opinions of the authorized treating physicians who did not recommend future medical treatment. See Bond v. Penrose Home Care, W.C. No. 4-275-808(April 16, 2001), aff’d., Bond v. Industrial Claim Appeals Office, (Colo.App. No. 01CA0831, November 23, 2001) (not selected for publication); Henderson v. Industrial Claim Appeals Office, (Colo.App. No. 99CA1532, February 24, 2000) (not selected for publication) (DIME physician’s recommendation for future medical treatment is not entitled to any presumptive weight). It is the ALJ’s sole prerogative to resolve conflicts in the record and determine the probative weight to be afforded the various medical evidence. Postlewait v. Midwest Barricade, supra. We may not substitute our judgment for that of the ALJ concerning the sufficiency of the evidence. Consequently, the existence of evidence which, if credited, might support a contrary result does not afford us grounds to grant appellate relief.
Further, the ALJ could reasonably infer from the medical records of Dr. Ogrodnick and Dr. Patterson that the claimant’s treating physicians did not recommend further treatment after maximum medical improvement. (See Dr. Ogrodnick May 22, 2001; Dr Paterson January 9, 2001). Therefore, we perceive no basis to disturb the ALJ’s order denying future medical benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 27, 2002, 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 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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed December 3, 2002 to the followingparties:
Diane M. Duplissis, 6130 Rangeland Pl., Colorado Springs, CO 80918
Shepard’s, 555 Middle Creek Pkwy., Colorado Springs, CO 80921
Zurich Insurance Company, c/o Crawford Co., P. O. Box 6502, Englewood, CO 80155-6502
Steven U. Mullens, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
BY: A. Hurtado