W.C. No. 4-380-054Industrial Claim Appeals Office.
February 9, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Jones (ALJ) which required them to pay permanent partial disability benefits based on 12 percent whole person impairment, as provided by § 8-42-102(4), C.R.S. 2000. We affirm.
On March 6, 1998, the claimant suffered an admitted low back injury. Applying Table 53(II)(b) of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised
(AMA Guides), Dr. McLaughlin opined the claimant suffered 5 percent permanent impairment for a specific disorder of the lumbar spine. The claimant was also evaluated by Dr. Harder, who assigned a 5 percent rating under Table 53 of the AMA Guides, and 7 percent for range of motion deficits in the lumbar spine.
On January 11, 1999, the claimant underwent a Division-sponsored independent medical examination (DIME) with Dr. Pham. Dr. Pham assigned 5 percent impairment under Table 53 of the AMA Guides, and 7 percent for impaired range of motion. Dr. Pham’s combined rating was 12 percent whole person impairment. Dr. Pham also testified that he agreed with Dr. Harder’s diagnosis and impairment rating.
The claimant was also examined by Dr. Shaw. Dr. Shaw assigned a 5 percent rating under Table 53 of the AMA Guides, but did not include a rating for impaired range of motion. Furthermore, Dr. Shaw opined that Dr. Pham erroneously measured the claimant’s range of motion by failing to have the claimant engage in a 5 minute warm-up prior to the exam.
The ALJ found the opinions of Dr. Pham and Dr. Harder more credible and persuasive that the opinions of Dr. McLaughlin and Dr. Shaw. In so doing, the ALJ found Dr. Shaw admitted to making mistakes in his range of motion measurements. The ALJ also found Dr. Shaw was unable to reference any provision of the AMA Guides that required Dr. Pham to have the claimant “warm up” prior to range of motion testing. Consequently, the ALJ found the respondents failed to overcome Dr. Pham’s medical impairment rating.
Crediting the claimant’s testimony, and the claimant’s Mexican birth certificate, the ALJ found the claimant was born April 13, 1980. Therefore, the ALJ determined the claimant was a minor at the time of the injury, and ordered the respondents to pay permanent partial disability benefits at the maximum rate allowed by law, as provided in §8-42-102(4). This appeal followed.
I.
The respondents first contend the ALJ erroneously found they failed to overcome the DIME’s rating by clear and convincing evidence. We disagree.
Section 8-42-107(8)(c), C.R.S. 2000, provides that the DIME physician’s rating is presumed to be correct and is binding on the parties and the ALJ unless overcome by “clear and convincing evidence.” The party who disputes the DIME physician’s rating bears the burden of proof. “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, 961 P.2d 590 (Colo.App. 1998); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The question of whether the respondents met their burden to overcome the rating of the DIME physician 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. 200 ; Metro Moving Storage Co. v. Gussert, supra. Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory or contrary inferences. Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). Under this standard, we must defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the evidence. Consequently, the standard of our review is narrow. Metro Moving and Storage Co. v. Gussert, supra.
Initially, we reject the respondents contention the ALJ ignored Dr. Shaw’s testimony. Admittedly, the ALJ’s Summary Order dated February 16, 2000, fails to mention Dr. Shaw’s testimony at the hearing on September 21, 1999. However, the ALJ is not required to mention evidence she finds unpersuasive or not determinative of the issues. General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). In any event, it is the March 27 order that is the subject of our review. See Wait v. Jan’s Malt Shoppe, 736 P.2d 1265 (Colo.App. 1987). The ALJ’s Specific Findings of Fact dated March 27, 2000, explicitly reference the September 21 hearing and Dr. Shaw’s testimony. (See Finding of Fact 9; Conclusions of Law 1). Consequently, it is immaterial that the ALJ’s Summary Order fails to discuss Dr. Shaw’s testimony.
The record contains a direct conflict between the examining physicians concerning whether the claimant has measurable range of motion impairment. Within her sole prerogative, the ALJ resolved the conflict in favor of the DIME physician and Dr. Harder, who reached similar results See Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990) (ALJ is the sole arbiter of conflicting expert testimony); Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (ALJ free to credit one medical opinion to the exclusion of a contrary medical opinion).
Based upon this record, we cannot say the evidence compels a contrary determination. Dr. Shaw admitted the AMA Guides do not require the patient to warm-up prior to range of motion testing. (Tr. September 21, 1999, p. 44). Dr. Shaw also stated that “neither patients nor evaluators are perfect in their measurements” and there is some degree of variability between physicians and the day of the evaluation (Tr. September 21, 1999, pp. 36, 50). In fact, Dr. Shaw, admitted that he made a mistake. (Tr. September 21, 1999, pp. 52, 57). Under these circumstances, the ALJ could, and did reasonably infer that Dr. Shaw’s testimony did not rise to the level of clear and convincing evidence that Dr. Pham and Dr. Harder mistakenly included a rating for range of motion impairment.
The respondents remaining argument has been considered and is not persuasive. Finding of Fact 9, in which the ALJ determined Dr. Shaw took an extra range of motion measurement even though his first three measurements were valid, is a plausible interpretation of Dr. Shaw’s testimony. (See Tr. November 21, 1999, pp. 30, 31, 52-57).
II.
The respondents also contend the ALJ abused her discretion by allowing the claimant to submit a Mexican identification card (I.D. card) and Mexican birth certificate to establish he was a minor at the time of the injury. The respondents argue that neither the Mexican I.D. nor the birth certificate was admissible because they did not contain a final certification from the Mexican consultant. Again we disagree.
An abuse of discretion does not occur unless the ALJ’s ruling is beyond the bounds of reason, as where it is unsupported by the law or the evidence. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). Furthermore, the party challenging an order as abuse of discretion must show sufficient prejudice before the abuse is reversible error Williamson v. School District No. 2, 695 P.2d 1173 (Colo.App. 1984).
At the commencement of the hearing, the respondents objected to the admission of documents purporting to be the claimant’s Mexican I.D. card and Mexican birth certificate on the ground that the documents did not meet the authentication requirements of foreign public documents in C.R.E. 902(3). That rule provides that extrinsic evidence of authenticity is not a condition precedent to the admission of a foreign public document which contains an attestation or final certification.
However, the claimant testified without objection that he was born on April 13, 1980. (Tr. November 19, 1999, p. 6). The ALJ expressly credited the claimant’s testimony on this issue, (Finding of Fact 2), and the claimant’s testimony alone is sufficient to support the ALJ’s finding that the claimant was a minor at the time of the injury. See Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986); Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). Under these circumstances, the disputed documents are cumulative and the ALJ’s error, if any, in admitting them was harmless. See A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988). (error which is not prejudicial will be disregarded).
IT IS THEREFORE ORDERED that the ALJ’s order dated March 27, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ Kathy E. Dean
________________________________ Dona Halsey
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, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2000. 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 decision were mailed February 9, 2001 to the following parties:
Manuel LaValle, 1363 Yosemite, #7, Denver, CO 80220
Por Mor Construction Company, 2901 S. Santa Fe Dr., Englewood, CO 80220
Jackie Slade, Farmers Insurance Company, P. O. Box 378230, Denver, CO 80237
Janie C. Castaneda, Esq., 1120 Lincoln St., #703, Denver, CO 80203 (For Claimant)
Christian M. Lind, Esq., Greenwood Plaza Blvd., #906, Greenwood Village, CO 80111 (For Respondents)
BY: A. Pendroy