W.C. No. 4-495-829.Industrial Claim Appeals Office.
January 27, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) which awarded permanent partial disability benefits based on a 23 percent impairment of the right upper extremity (RUE) and denied medical treatment for the claimant’s “trigger finger.” We affirm the order in part and set it aside in part.
The claimant, an electrician, sustained an injury to his RUE when he pulled heavy wire on October 11, 2000. After a course of conservative therapy the claimant underwent right shoulder surgery on May 2, 2001. The surgery was to repair a torn biceps tendon and partial tear of the rotator cuff.
Following surgery the claimant underwent physical therapy. During the course of the therapy the claimant sometimes reported pain in the right shoulder and cervical muscles. (Finding of Fact 15). The claimant underwent a functional capacities evaluation in February 2002 and the testing revealed that the right shoulder fatigued easily and the claimant experienced pain when lifting.
On February 19, 2002, the treating physician assigned the claimant an impairment rating of 5 percent of the RUE, which converted to a 3 percent whole person impairment. This rating was based on reduced range of motion in the shoulder joint.
The claimant underwent a Division-sponsored independent medical examination (DIME) on the issue of medical impairment. The DIME physician opined the claimant reached maximum medical improvement (MMI) on February 19, 2002. The DIME physician further opined the claimant sustained a 23 percent impairment of the RUE, which converted to a 14 percent whole person impairment. This rating was based on reduced range of motion in the shoulder and a “motor component” for the biceps tendon tear. The DIME physician also assigned a 12 percent whole person impairment rating for a specific disorder and reduced range of motion in the cervical spine. The cervical rating was based on a diagnosis of “cervical strain” evidenced by the claimant’s reports of neck pain and a finding of “cervical paravertebral muscle spasm.” The DIME physician made various recommendations for on-going therapy, and stated that if the claimant’s “problems in his finger continue to be problematic, his case should remain open so that he can be evaluated by a hand surgeon.”
In January 2003 and at the respondents’ request the claimant underwent an independent medical exam by Dr. Lesnak. Dr. Lesnak opined the claimant is not entitled to any impairment rating for the cervical spine because he does not have a medically documented injury to the neck, and the pain he experiences is compensatory pain because the shoulder surgery causes him to overuse the trapezius muscle. (Tr. April 2, 2003, Pp. 25-26, 79; Report of Dr. Lesnak, Pp. 9-10).
The matter proceeded to hearing on the issues of permanent disability and medical benefits after maximum medical improvement. The ALJ found that Dr. Lesnak “opined that claimant did not have a medically documented condition involving the cervical spine or the trigger finger growing out of the October 11, 200, injury,” and that the claimant’s “functional impairment was below the shoulder at the arm.” The ALJ found the opinions expressed by Dr. Lesnak were more “credible and persuasive” than the conflicting opinion expressed by the claimant’s witness, Dr. Harder. The ALJ further found that Dr. Lesnak’s opinions concerning the situs of the functional impairment were supported by the medical records. (Findings of Fact 25-26).
In the Conclsuions of Law, the ALJ stated the claimant had the burden of proof by a preponderance of the evidence, and that the question of whether the claimant sustained a scheduled loss is one of fact. The ALJ then concluded, based on the opinions of Dr. Lesnak, that the “claimant is not entitled to a whole person rating for the injury to his right shoulder” because the “situs of the claimant’s functional impairment is at the right shoulder.” Consequently, the ALJ ordered the respondents to pay permanent partial disability benefits based on the DIME physician’s scheduled impairment rating. The ALJ further found the claimant “failed to establish that the trigger finger condition is related to the industrial injury.
I.
On review, the claimant first contends the ALJ failed to enter sufficient findings of fact to support the determination that the respondents overcame the DIME physician’s cervical impairment rating by clear and convincing evidence. The respondents argue the ALJ implicitly determined this issue in their favor. We agree with the claimant and remand for entry of new order on this issue.
Pursuant to § 8-42-107(7)(b)(I), C.R.S. 2003, when a worker sustains both scheduled and non-scheduled injuries, “losses shall be compensated on the schedule for scheduled injuries and the nonscheduled injuries shall be compensated as medical impairment benefits.” As a consequence of this distinction, scheduled injuries are not subject to the DIME process, but whole person impairments are subject to the DIME process. See Delaney v. Industrial Claim Appeals Office, 30 P.3d 691 (Colo.App. 2000).
Consequently, when a whole person impairment is involved, the DIME physician’s finding that the industrial injury caused the impairment, and the impairment rating itself, are binding unless 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, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998). The ALJ determines as a matter of fact whether a party challenging a DIME physician’s rating has presented sufficient evidence to show that it is highly probable and free from serious doubt that the DIME physician’s rating is incorrect. Obviously, this standard of proof is higher than a mere preponderance of the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995).
We must uphold the ALJ’s determination that the DIME physician’s whole person impairment rating has been overcome by clear and convincing evidence if supported by substantial evidence in the record. Metro Moving Storage Co. v. Gussert, supra. However, the ALJ must enter sufficient findings to indicate the legal and factual bases of the order so that we may conduct meaningful appellate review. If the order is not sufficient to support review, we may set it aside and remand for additional findings. Section 8-43-301(8), C.R.S. 2003; Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000).
We agree with the claimant that the ALJ did not enter specific findings sufficient to support any conclusion that the respondents overcame the DIME physician’s cervical rating by clear and convincing evidence. First, the ALJ’s Conclusions of Law do not recognize that on this issue the respondents bore the burden of proof by clear and convincing evidence. Rather, the order speaks only to the issue of whether the claimant proved by a preponderance of the evidence that the “shoulder injury” is off the schedule. Second, the ALJ’s finding that the opinions of Dr. Lesnak were more credible and persuasive than those of Dr. Harder does not determine whether Dr. Lesnak’s opinions are so persuasive as to make it highly probable that the DIME physician
was incorrect in rating the cervical spine. Viewing the order in its entirety, we cannot say the ALJ recognized the critical legal issue and made findings of fact adequate to resolve that issue.
Insofar as the claimant argues that Dr. Lesnak’s opinions are inherently incredible and cannot support a finding that the DIME physician’s cervical rating was overcome, we disagree. The weight and credibility to be assigned expert medical opinion is a matter within the province of the ALJ as fact-finder. Cordova v. Industrial Claim Appeals Office, supra. Moreover, there is other evidence which might support a determination that the rating was overcome. Consequently, the matter must be remanded for entry of a new order to determine whether the respondents have overcome the DIME physician’s cervical impairment rating by clear and convincing evidence. We should not be understood as expressing any opinion concerning resolution of this factual issue.
II.
The claimant next contends the ALJ erred in finding that he sustained a scheduled impairment of the right arm at the shoulder rather than a whole person impairment. The claimant first contends the ALJ failed to make adequate findings of fact to support this determination. The claimant further asserts the record does not contain substantial evidence to support this portion of the order. We disagree.
It is well established that the question of whether the claimant sustained an “injury” resulting in a “loss of an arm at the shoulder” within the meaning of § 8-42-107(2)(a), C.R.S. 2003, or a whole person impairment 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 Helathcare System, 917 P.2d 366 (Colo.App. 1996). The term “injury” refers to the part of parts of the body which have been impaired or disabled by the injury, not necessarily the site of the physical injury or the medical reason for the loss. Walker v. Jim Fuoco Motor Co., 942 P.2d 1390 (Colo.App. 1997); Strauch v. PSL Swedish Healthcare System, supra. While expert medical opinions and impairment ratings are relevant, they are not necessarily determinative of the situs of the functional impairment. Walker v. Jim Fuoco Motor Co., supra.
Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence. Section 8-43-301(8); Langton v. Rocky Mountain Health Care Corp., supra. This is narrow standard of review which requires us to consider the evidence in alight 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. Metro Moving Storage Co. v. Gussert, supra. In this regard, we note that to the extent a medical expert’s opinions are internally inconsistent or subject to varying inferences, the ALJ may resolve the inconsistency by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
The claimant’s argument notwithstanding, we have no difficulty in ascertaining the basis of the ALJ’s determination that the claimant sustained a scheduled injury. The ALJ relied on the reports and testimony of Dr. Lesnak, and found them more credible that the claimant’s expert. Further, the ALJ cited evidence from the FCE showing the effects of the injury on the claimant’s activities.
Moreover, substantial, albeit conflicting, evidence supports the ALJ’s order. Dr. Lesnak testified that the physical injury was to the claimant’s upper arm and shoulder, not the muscles which “connect to the neck.” Further, the ALJ could fairly interpret Dr. Lesnak’s testimony to mean that the residual limitations from this injury affect only the use of the claimant’s arm, not structures which are more proximal. (Tr. April 2, 2003, Pp. 36-38). This opinion is corroborated by the FCE which shows the limitations on the claimant primarily affect the use of the arm when lifting. Cf. Langton v. Rocky Mountain Health Care Corp., supra.
It is true that some evidence in the record, including the testimony of Dr. Harder, could support a contrary conclusion. However, the ALJ expressly discredited this evidence. The mere fact that some evidence in the record could support a contrary result affords no basis for relief on appeal. Walker v. Jim Fuoco Motor Co., supra.
III.
The claimant finally contends the ALJ erred in declining to award post-MMI medical benefits for the treatment of a “trigger-finger.” In support of this contention the claimant relies on the opinion of the claimant’s surgeon and a treating physician that this condition was related to squeezing a ball to regain strength. We reject this argument.
The claimant was required to prove that the need for treatment for post-MMI treatment of the “trigger finger” was causally related to the industrial injury. See Hanna v. Print Expediters, Inc., 77 P.3d 863 (Colo.App. 2003). Whether the claimant proved causation was an issue of fact for determination by the ALJ Cordova v. Industrial Claim Appeals Office, supra.
Here, Dr. Lesnak opined the trigger finger was most probably caused by the claimant’s activities as an electrician or activities of daily living, not squeezing a ball to gain strength. (Tr. April 2, 2003, Pp. 96, 99-100). The ALJ found this testimony credible, and we may not interfere with that determination simply because other evidence might have supported a different result.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 16, 2003, is set aside insofar as it denied permanent partial disability benefits based on whole person impairment of the cervical region. On this issue the matter is remanded for entry of a new order consistent with the view expressed herein. An additional hearing is not authorized, and the new order shall be entered based on the existing record.
IT IS FURTHER ORDERED that the ALJ’s order is otherwise 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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2003. 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 order were mailed to the parties at theaddresses shown below on January 27, 2004 by A. Hurtado.
Daniel Garcia, 12526 E. Cornell Ave., Unit 201, Aurora, CO 80014
Intermountain Electric, 602 S. Lipan, Denver, CO 80223
Lumbermens’ Mutual Casualty Company, c/o Kris Flores, Gallagher Bassett Services, Inc., P. O. Box 4068, Englewood, CO 80155-4068
John A. Sbarbaro, Esq., 226 W. 12th Ave., Denver, CO 80204-3625 (For Claimant)
Marsha A. Kitch, Esq., Bergen Park Business Plaza, 1202 Bergen Pkwy., #311, Evergreen, CO 80439 (For Respondents)