W.C. No. 4-294-845Industrial Claim Appeals Office.
June 11, 1998
FINAL ORDER
The claimant has filed a petition to review the order of Administrative Law Judge Gandy (ALJ) which determined that she is entitled to permanent impairment benefits of thirteen percent as a whole person. We affirm.
The claimant sustained an admitted industrial injury to her left ankle on November 14, 1995. She was examined and treated by multiple physicians, several of whom opined that the claimant was magnifying her symptoms. Nevertheless, Dr. Hughes assigned the claimant a fifteen percent lower extremity permanent impairment rating on the basis of the claimant’s left ankle condition, which he converted to a six percent whole person rating. Dr. Hughes also assigned the claimant a two percent whole person rating for mental impairment, for a total of eight percent.
Dissatisfied with this rating, the claimant applied for a Division of Workers’ Compensation independent medical examination. Dr. Centeno conducted the examination. He agreed that the claimant had a two percent psychological impairment, and opined that the claimant’s permanent total impairment is thirteen percent as a whole person. In rendering this opinion, Dr. Centeno concluded that no consideration should be given to low back pain complained of by the claimant. In this regard, Dr. Centeno stated:
“The reasoning behind this is that it is made clear during the Level II impairment course that we can only rate the initial injury and not any upstream or downstream consequences of the initial injury. The medical record in this case does seem to clearly document that it was a left ankle and foot injury and the low back was not mentioned until much later. This is in contraindication to what the patient reports, but it would seem highly unlikely that she could go several months in treatment without one provider mentioning the low back.
Further, in a subsequent clarification of his opinion, Dr. Centeno stated:
Due to the significant amount of symptom magnification present, I do not believe that it is fair to rate this person’s low back. Since really what we are going on here is the patient’s report, my medical opinion is that there is no impairment related to the low back at this time. It is interesting to me that the patient did not have low back pain in the medical records until fairly recently. Therefore, in my medical opinion, the low back is not rateable.
The claimant was also rated by Dr. Harder, who assigned a 23 percent impairment rating on the basis of lumbar spine, left lower extremity and mental impairment. Further, the claimant underwent two vocational evaluations. Mr. Blythe reported that the claimant has residual skills and the physical ability to perform as a sewing machine operator, assembler, agricultural sorter, and hand packager, and that employment opportunities in these areas are available within the commutable labor market. Mr. Best reported that there are only a handful of jobs in the Greeley area which are theoretically available to the claimant, and that he could only identify two actual jobs in the area that are suitable for the claimant. Mr. Best also testified, however, that Longmont, Loveland, and Ft. Collins are within reasonable commuting distance and that additional suitable opportunities may exist for the claimant if those labor markets are considered.
The ALJ found that the claimant failed to prove that she is unable to earn any wages in the same or other employment, and therefore concluded that the claimant is not permanently totally disabled. See § 8-40-201(16.5)(a), C.R.S. 1997. The ALJ found Mr. Blythe’s opinion persuasive that the claimant could obtain work as a seamstress or assembler. The ALJ also found that Mr. Best’s testimony that there were two suitable jobs available in the Greeley area, and the potential for other jobs in the commutable labor market, supports the conclusion that the claimant is not permanently totally disabled.
Further, the ALJ found that the claimant had failed to prove, by clear and convincing evidence, that Dr. Centeno erred in failing to rate the claimant’s low back pain. The ALJ stated:
[t]he claimant . . . has presented no evidence, much less clear and convincing evidence, that Dr. Centeno’s rating was error. There has been no expert evidence presented at the hearing nor in the record which would substantiate claimant’s position that Dr. Centeno has misused the Guides. Consequently, Dr. Centeno’s permanent impairment rating of 13% as a whole person as set forth in his Independent Medical Examination Report of April 10, 1997, is affirmed.
I.
On appeal, the claimant asserts that the ALJ erred in finding there is “no” evidence that Dr. Centeno erred in failing to rate her low back pain. The claimant asserts that her testimony, as well as medical reports as far back as December 28, 1995, mention low back pain related to this injury, and that this is some evidence that Dr. Centeno’s rating is inaccurate. Therefore, the claimant argues that pursuant to Hall v. Industrial Claim Appeals Office, 757 P.2d 1132 (Colo.App. 1988), the case must be remanded. We disagree.
As we understand the ALJ’s order, he did not find that there was no evidence of low back pain, or no evidence that Dr. Centeno was mistaken in stating that the claimant did not mention low back pain for several months after the injury. Rather, the ALJ found that there is no evidence that the AMA Guides required Dr. Centeno to rate the claimant’s back pain under the circumstances here. Specifically, there is “no” evidence that back pain reported some six weeks after the injury is not an “upstream or downstream consequence,” nor is there evidence that upstream or downstream consequences of the initial injury are to be rated. Finally, there is “no” evidence that a rating is required by the AMA Guides where the rating physician found there was symptom magnification.
In any event, we believe that Hall v. Industrial Claim Appeals Office, supra, is distinguishable. In that case, an ALJ found that there was “no” evidence that the claimant’s disease was caused by his employment. The Court noted that one physician had opined that there was a causal relationship, and that it was improper to presume that the ALJ found that evidence unpersuasive, as opposed to having overlooked it. However, under the law in effect at the time of Hall, the claimant could prevail by presenting substantial evidence of causation, which is defined as “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.” See F.R. Orr Construction v. Rinta, 717 P.2d 965
(Colo.App. 1985). The physician’s opinion could have constituted substantial evidence under that standard.
Here, the issue is not whether there is “substantial” evidence that the ankle injury caused low back pain, but whether there is “clear and convincing” evidence that Dr. Centeno erred in failing to assign a rating for back pain. See § 8-42-107(8)(c), C.R.S. 1997. It is apparent from the hearing transcript that the ALJ was aware of the evidence the claimant relies upon in arguing that Dr. Centeno’s rating was erroneous (Transcript 66-71), and the ALJ expressly concluded that evidence was not clear and convincing. See CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988) (ALJ’s oral statements may be considered in interpreting his written order) [rev’d on other grounds at 783 P.2d 269 (1989)]. Therefore, we conclude that the record shows the ALJ had not overlooked evidence, as might have been the case in Hall, and a remand is not necessary.
II.
The claimant also contends that the ALJ denied her due process by considering a position statement submitted by the respondents during the hearing. The claimant argues that she was not given an opportunity to respond to the specific arguments made in the position statement. We perceive no reversible error.
Procedural due process only requires that all parties be apprised of the evidence submitted or to be considered, and be given an opportunity to cross-examine witnesses, to inspect documents offered into evidence, and to offer evidence in explanation or rebuttal. See Nesbit v. Industrial Commission, 43 Colo. App. 398, 607 P.2d 1024 (1979). However, even if fundamental fairness required that the claimant be given an opportunity to respond to the respondents’ position statements, the claimant did not object or request an opportunity to respond during the hearing. Consequently, we decline to disturb the proceedings on this basis. See Anders v. Industrial Commission, 649 P.2d 732 (Colo.App. 1982). Further, the record does not show that the ALJ was distracted by the position statement or inattentive to the claimant’s testimony, as the claimant contends.
III.
Finally, we are unpersuaded that the ALJ erred in denying the claim for permanent total disability. As we stated earlier, the ALJ did not find that there is “no” evidence that the claimant suffers from low back pain as a result of this injury. Moreover, the evidence relied upon by the ALJ and the inferences drawn therefrom, support the ALJ’s determination. Although the evidence is conflicting and susceptible of conflicting inferences, the ALJ’s findings are supported by substantial evidence. Finally, the ALJ’s determination is consistent with applicable law. See §8-43-301(8), C.R.S. 1997. Accordingly, we have no basis for interfering with the ALJ’s determination.
IT IS THEREFORE ORDERED that the hearing officer’s decision issued September 26, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL __________________________________ Dona Halsey __________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Orderis commenced in the Colorado Court of Appeals, 2 East 14th Avenue,Denver, Colorado 80203, by filing a petition to review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date the Order was mailed, pursuant to §§8-43-301(1) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this order were mailed June 11, 1998 to the following parties:
Soledad Fuentes, 827 Johnson St., San Juan, TX 78589
Dept. of Higher Educ., Univ. of Northern Colo., Attn: Joyce Baker, Carter Hall #202, Greeley, CO 80639
Colorado Compensation Insurance Authority, Attn: Laurie Schoder, Esq. (Interagency Mail)
Rebecca Koppes Conway, Esq., 912 8th Ave., Greeley, CO 80631 (For the Claimant)
Elliott Weiner, Esq., 999 18th St., #3100, Denver, CO 80202 (For the Respondents)
By: ___________________________________________________