W.C. No. 4-145-666Industrial Claim Appeals Office.
January 29, 1996
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Gandy (ALJ) which awarded permanent partial disability benefits based upon medical impairment of twenty-three percent as a whole person. We affirm.
This matter was before us previously. In an order dated July 11, 1995, we held that the ALJ misapplied the law in his order of January 20, 1995 when he stated that “it is improper to apportion solely to a pre-existing condition.” Moreover, we held that the order was erroneous because it indicated that the report of the independent medical examiner (IME), Dr. Akmakjian needed to “meet its burden of proof.”
On remand, the parties submitted into evidence certain provisions of the AMA Guides. The ALJ then entered the new order on August 28, 1995. In this order, the ALJ recognized that Dr. Akmakjian gave the claimant a twenty-three percent whole person impairment rating, but apportioned nine percent of the impairment to a pre-existing degenerative condition.
However, the ALJ found that Dr. Akmakjian’s apportionment was overcome by clear and convincing evidence. The ALJ specifically found that, in a report dated January 20, 1994, the treating physician, Dr. Quick, gave the claimant an impairment rating “of twenty-three percent as a whole person, with no apportionment in accordance with the AMA Guides.” The ALJ also cited the opinion of Dr. Harder that the claimant has a twenty-four percent whole person impairment with “no apportionment in accordance with the AMA Guides.” The ALJ concluded that the opinions of Dr. Quick and Dr. Harder “should be given the most weight,” and that Dr. Akmakjian’s opinion “should be given the least weight.” Thus, the ALJ awarded permanent partial disability benefits based upon impairment of twenty-three percent of the whole person without apportionment.
I.
On review, the respondents contend that the ALJ’s refusal to apportion any of the impairment to the alleged pre-existing condition is not supported by substantial evidence. Specifically, the respondents attack Finding of Fact 1, which states that Dr. Quick’s January 20, 1994 report gives the claimant a twenty-three percent whole person impairment rating “in accordance with the AMA Guides.” The respondents point out that, in his November 15, 1993 report, Dr. Quick opined that the claimant had a twenty-three percent whole person impairment, of which nine percent was attributable to “pre-existing cervical degenerative disc disease.” Moreover, the respondents contend that Dr. Quick did not change this impairment rating in the January 20, 1994 report. Instead, they assert that the January 20, 1994 report is not a medical apportionment under the AMA Guides, but an attempt to apportion industrial disability stemming from lost earning capacity. We find no error.
Under § 8-42-107(8)(c), C.R.S. (1995 Cum. Supp.), an IME physician is required to determine whether or not the claimant’s impairment should be apportioned under the AMA Guides. To the extent that the IME physician apportions to a pre-existing condition, the apportionment may be overcome only by clear and convincing evidence. Askew v. Sears Roebuck Co., ___ P.2d ___ (Colo.App. No. 94CA1932, June 15, 1995).
The determination of whether the apportionment has been overcome by clear and convincing evidence is one of fact for the ALJ. Askew v. Sears Roebuck Co., supra. Further, the question of whether an IME physician has correctly applied the AMA Guides is itself a question of fact. Metro Moving and Storage Co. v. Gussert, ___ P.2d ___ (Colo.App. No. 94CA1926, June 15, 1995).
On review, we are required to uphold the ALJ’s resolution of these issues if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). Consequently, we may not interfere with the ALJ’s credibility determinations, his resolution of conflicts in the evidence, or the plausible inferences which he drew from the evidence Metro Moving Storage Co. v. Gussert, supra.
Applying these standards here, we cannot say that the ALJ erred in finding that Dr. Quick’s January 20, 1994 report rejects apportionment based on the AMA Guides. The January 20 report may be read as a statement by Dr. Quick that his prior apportionment was improper because it failed to consider that the alleged pre-existing condition had no effect whatsoever on the claimant’s capacity to work. Moreover, the AMA Guides state that, when a physician is called upon to determine whether a pre-existing factor contributes to an impairment the physician “must rely on documentation of the circumstances under which the factor was present and verification that the type and magnitude of the factor were sufficient and bore the necessary temporal relationship to the condition.”
Admittedly, Dr. Quick’s January 20 report is subject to varying interpretations. However, because the report is subject to varying inferences and conclusions, it was for the ALJ to resolve the inconsistency, and we decline to substitute our judgment for his concerning the proper interpretation of the report. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (it is for ALJ to resolve internal inconsistencies in the testimony of a physician).
II.
The respondents next contention is that the ALJ misapplied the burden of proof in determining that the IME physician’s rating was overcome by clear and convincing evidence. The respondents assert that the ALJ’s error is evidenced by the fact that he found that the opinions of Dr. Quick and Dr. Harder were entitled to greater weight than those of Dr. Akmakjian. We are not persuaded.
Here, Finding of Fact 6 indicates that the ALJ was fully aware that §8-42-107(8)(c) required him to find that Dr. Akmakjian’s rating was overcome by clear and convincing evidence. In determining whether the claimant succeeded in overcoming Dr. Akmakjian’s rating, it was permissible for the ALJ to evaluate the weight and credibility of the various medical opinions. Metro Moving Storage Co. v. Gussert, supra. Thus, it appears that the ALJ fully appreciated the applicable law. His statements concerning the weight of the medical opinions merely demonstrate his conclusion that the opinions of Dr. Quick and Dr. Harder prove that it is highly likely that Dr. Akmakjian’s apportionment is incorrect under the AMA Guides.
IT IS THEREFORE ORDERED that the ALJ’s order, dated August 28, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
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 January 29, 1996 to the following parties:
Lenore Belle Hasty, 2542 14th Ave., Greeley, CO 80631
Gutierrez Koppes, Attn: Rebecca Koppes-Conway, Esq., 912 8th Ave., Greeley, CO 80631
Colorado Compensation Insurance Authority, Attn: Legal Dept. — Interagency Mail
Douglas A. Thomas, Esq. Douglas P. Ruegsegger, Esq., 1700 Broadway, #1700, Denver, CO 80290-1701 (For the Respondents)
Steven R. Bristol, Esq., 1122 9th St., #202, Greeley, CO 80631 (For the Claimant)
By: ______________________________