W.C. No. 4-131-871Industrial Claim Appeals Office.
July 9, 1996
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge Stuber (ALJ) insofar as it awarded medical impairment benefits based upon a disability of thirty-eight percent as a whole person. We affirm.
The claimant sustained a low back injury which resulted in “complications to his bladder, lower extremities, and sexual function.” In a report dated September 13, 1994, the claimant’s authorized treating physician, Dr. Gross, opined that the claimant sustained a twenty-eight percent whole person impairment. Dr. Gross subsequently reduced the impairment rating to sixteen percent.
The claimant was dissatisfied with the rating of Dr. Gross and requested a Division-sponsored independent medical examination (IME). The IME was performed by Dr. Centeno, who opined that the claimant has a thirty-eight percent whole person impairment. Ten percent of this rating was attributable to a “Class II” sexual dysfunction.
The respondent contended that Dr. Centeno’s rating was overcome by clear and convincing evidence. Specifically, it argued that, in view of the medical history the claimant gave to Dr. Aschberger, both Dr. Centeno and Dr. Gross overrated the impairment attributable to the claimant’s sexual dysfunction.
However, the ALJ found that the respondent failed to overcome Dr. Centeno’s rating by clear and convincing evidence. The ALJ determined that the claimant suffers from serious “urinary, sexual and bowel dysfunction,” and the ALJ minimized the significance of the alleged variances in medical history because “the words which are different in the opinions seem to be words of degree rather than words of specific events.” Thus, the ALJ awarded medical impairment benefits based on Dr. Centeno’s thirty-eight percent whole person impairment rating.
On review, the respondent first contends that the ALJ erred in finding that Dr. Centeno’s rating was not overcome by clear and convincing evidence. The respondent alleges that, because the claimant gave a history of being able to perform certain sexual functions, Dr. Centeno misapplied the AMA Guides (Third Edition) in determining that the claimant has a “Class II” sexual dysfunction. We reject this argument for several reasons.
First, the respondent did not enter the pertinent sections of the AMA Guides into evidence. Therefore, there is no evidentiary basis for the argument that Dr. Centeno misapplied the AMA Guides in calculating the claimant’s sexual impairment. The absence of the AMA Guides from the record precludes us from considering the Guides on appeal. City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995).
However, even if we were to consider the respondent’s argument, we would not reach a different result. Under § 8-42-107(8)(c), C.R.S. (1995 Cum. Supp.), the respondent had the burden to overcome Dr. Centeno’s rating by clear and convincing evidence. Clear and convincing evidence is stronger than a preponderance, and it is evidence which renders a particular proposition highly probable and free from serious or substantial doubt. The question of whether the respondent satisfied this heavy burden is one of fact for resolution by the ALJ. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
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. (1995 Cum. Supp.); Metro Moving Storage Co. V. Gussert, supra. Consequently, we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences which he drew from the evidence. In particular, it is for the ALJ to assess the weight and credibility of the medical evidence. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Even if it were true that Dr. Centeno was mistaken in concluding that the claimant suffers from a “Class II” sexual dysfunction as defined by the AMA Guides, that would not necessarily prove that his rating was overcome by clear and convincing evidence. In this regard, we note that Dr. Gross opined that the claimant has a sexual dysfunction warranting a ten percent impairment rating. (Gross report, September 13, 1994). This rating was based on a completely different section of the AMA Guides than was cited by Dr. Centeno. (Gross depo. pp. 36-37). Thus, there is evidence that Dr. Centeno’s overall rating was correct, even if it was technically flawed.
Moreover, the willingness of Dr. Gross to reduce his impairment rating was predicated on a “hypothetical” consideration of the history which the claimant allegedly gave to Dr. Aschberger. To the extent the evidence was contradictory concerning the degree of the claimant’s sexual dysfunction, it was for the ALJ to resolve that matter and we may not substitute our judgment for his on this factual issue.
Finally, the respondent cites that portion of § 8-42-107(8)(c) which states that a “physician cannot render a medical impairment rating based on chronic pain without anatomic or physiologic correlation.” The statute goes on to state that “anatomic correlation must be based on objective findings.” The respondent asserts that there is no “objective substantiation” of the claimant’s sexual, bladder, or bowel dysfunction, and therefore, the order must be set aside.
However, the cited portion of § 8-42-107(8)(c) has no application to the issue presented here. The claimant was not presenting a claim based on “chronic pain.” Rather, the claimant was seeking compensation for specific bodily impairments.
To the extent that the respondent makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 25, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed July 9, 1996 to the following parties:
Walter S. Fenton, 12943 W. 84th Pl., Arvada, CO 80005
Provenant Health Partners, 4231 W. 16th Ave., Denver, CO 80204-1335
Sisters of Charity Health Care Systems, Inc., Attn: Kathy Lindgren, 4815 List Dr., Ste. 111, Colorado Springs, CO 80919
John A. Steninger, Esq., 3773 Cherry Creek North Dr., Ste. 280, Denver, CO 80209 (For the Claimant)
Anne Smith Myers, Esq. Karen R. Wells, Esq., 3900 E. Mexico Ave., Ste. 1000, Denver, CO 80210 (For the Respondents)
By: ______________________