W.C. No. 4-206-442Industrial Claim Appeals Office.
June 3, 1998
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) insofar as the ALJ awarded permanent partial disability benefits for psychiatric impairment of 15 percent of the whole person. We affirm.
The claimant sustained compensable injuries in 1995. The claimant reached maximum medical improvement from the physical injuries on August 23, 1995, and October 3, 1996 for the psychological injuries. Dr. Barkhorn performed a Division-sponsored independent medical examination (IME) under the provisions of § 8-42-107(8)(c), C.R.S. 1997. Dr. Barkhorn rated the claimant’s permanent psychiatric impairment as 15 percent of the whole person. Dr. Neal and Dr. Miller concurred. Dr. Entin and Dr. Cohen opined that the claimant suffered no psychiatric impairment from the industrial injury.
The ALJ explicitly found the opinions of Dr. Entin and Dr. Cohen more persuasive than the opinions of Dr. Barkhorn, Dr. Neal and Dr. Miller. However, the ALJ found that the respondents failed to present “clear and convincing evidence” to overcome Dr. Barkhorn’s impairment rating. Therefore, the ALJ concluded that Dr. Barkhorn’s rating is binding, and ordered the respondents to pay permanent disability benefits in accordance with Dr. Barkhorn’s rating.
On review, the respondents contend that because the ALJ expressly found the opinions of Dr. Entin and Dr. Cohen more persuasive than the opinions of Dr. Barkhorn, the ALJ’s findings of fact do not support his conclusion that they failed to overcome Dr. Barkhorn’s medical impairment rating. We disagree.
Section 8-42-107(8)(c), provides that the IME physician’s impairment rating is binding unless overcome by “clear and convincing evidence.” Clear and convincing evidence is evidence which demonstrates that it is “highly probable” the IME physician’s rating is incorrect. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979); Qual-Med, Inc. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA1440, May 28, 1998) Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995). Put another way, to overcome the IME physician’s medical impairment rating there must be evidence establishing that the IME physician’s determination is incorrect and this evidence must be unmistakable and free from serious or substantial doubt. DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318 (1980).
The question of whether the respondents sustained their burden to prove that the IME physician’s rating has been overcome by clear and convincing evidence is one of fact for the ALJ Askew v. Sears Roebuck Co., 927 P.2d 1333 (Colo. 1996). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997; Metro Moving Storage Co. v. Gussert, supra.
Here, the ALJ found that it was “probable” Dr. Barkhorn’s rating is incorrect. However, the ALJ expressly recognized that under the applicable legal standard the respondents were required to prove that it was “highly probable” Dr. Barkhorn’s rating was incorrect. The ALJ found that Dr. Entin’s testimony was “not enough” to sustain the respondents’ burden of proof, and therefore, the ALJ concluded that the claimant is entitled to benefits based upon Dr. Barkhorn’s rating. (Tr. P. 72); CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988) rev’d on other grounds, at 783 P.2d 269 (1989) (the ALJ’s oral findings may be considered to interpret the ALJ’s written findings).
We may not reweigh the evidence on review or interfere with the ALJ’s assessment of the probative weight and sufficiency of the various medical opinions. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Furthermore, the ALJ’s determinations are permissible inferences from this record. See Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941) (ALJ considered to possess expert knowledge which renders him competent to evaluate medical evidence and draw plausible inferences from it). Therefore, we may not disturb the ALJ’s determinations Metro Moving Storage Co. v. Gussert, supra.
Moreover, even though the ALJ found Dr. Entin’s testimony more persuasive than the opinions of Dr. Barkhorn, he determined that Dr. Entin’s testimony did not rise to the level of “clear and convincing evidence” sufficient to overcome Dr. Barkhorn’s rating. Consequently, the ALJ’s conclusions of law are not inconsistent with his findings of fact. See Barrows v. Park Rite, Inc., W.C. No. 179-480 (January 24, 1997); Foster v. Continental Airlines, W.C. No. 4-131-497 (May 1, 1996).
IT IS THEREFORE ORDERED that the ALJ’s order dated August 1, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ David Cain ____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for 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 this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed June 3, 1998 to the following parties:
Stephen G. Gilliland, 14482 Gold Hill Road, Boulder, CO 80302
Yellow Cab, Inc., 7500 E. 41st Ave., Denver, CO 80216-4706
Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
John G. Taussig, Jr., Esq., 1919 14th St., Ste. 805, Boulder, CO 80302 (For the Claimant)
Stephen A. Jones, Esq., 1700 Broadway, Ste. 1910, Denver, CO 80290 (For the Respondents)
BY: _______________________