W.C. No. 4-147-233Industrial Claim Appeals Office.
December 19, 1997
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Erickson (ALJ), which awarded scheduled disability benefits based upon a 14 percent loss of use of the left upper extremity. We affirm.
In June 1991, the claimant suffered an injury to her left arm from the repetitive duties of her employment. The treating physician, rated the claimant’s permanent impairment as ten percent of the left upper extremity.
The claimant was also evaluated by Dr. Rook, who rated the claimant’s permanent medical impairment as 29 percent of the whole person. Dr. Rook opined that the claimant suffered a “cumulative trauma injury with persistent distal nerve irritations.” Dr. Rook testified that “noxious input feeds into the spinal cord and causes a reactive muscle spasm” which, in the claimant’s case, resulted in neck and shoulder pain. (Rook depo. p. 8). Therefore, Dr. Rook opined that the claimant’s permanent medical impairment from the industrial injury includes lost range of motion and a specific disorder of the cervical spine.
The claimant also underwent a Division-sponsored independent medical examination (IME) pursuant to the provisions of §8-42-107(8)(c), C.R.S. 1997. The IME physician, Dr. McLaughlin, testified he could not find any documented work-related injury to the claimant’s neck or cervical spine. Consequently, Dr. McLaughlin opined that the claimant’s permanent medical impairment from the industrial injury is limited to 14 percent of the left upper extremity.
The respondents filed a Final Admission of Liability admitting liability for scheduled disability benefits consistent with Dr. McLaughlin’s upper extremity rating. The claimant objected and sought whole person impairment benefits based upon Dr. Rook’s rating.
The ALJ was not persuaded that Dr. Rook’s opinion about the cause of the claimant’s neck pain rose to the level of “clear and convincing evidence,” or that Dr. McLaughlin incorrectly rated the claimant’s permanent impairment. Instead, the ALJ found that the disagreement between Dr. Rook and Dr. McLaughlin regarding the cause of the claimant’s cervical impairment is a “difference of professional opinion.” Therefore, the ALJ determined that the claimant failed to sustain her burden to overcome Dr. McLaughlin’s medical impairment rating by “clear and convincing” evidence, as required by § 8-42-107(8)(c).
On review, the claimant contends that the ALJ erred in failing to award medical benefits based upon Dr. Rook’s whole person impairment rating. We disagree.
Section 8-42-107(8)(c), provides that the IME physician’s medical impairment rating is binding unless overcome by “clear and convincing evidence.” Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). “Clear and convincing evidence” is evidence which is stronger than a preponderance, is unmistakable and is free from serious or substantial doub . DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318 (1980); Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979).
Whether the IME physician’s medical impairment rating has been overcome by clear and convincing evidence is a question of fact for the ALJ. Metro Moving Storage Co. v. Gussert, supra. Consequently, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. Further, application of the substantial evidence test requires that we defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations and the plausible inferences he drew from the evidence. Accordingly, the scope of our review is narrow. Metro Moving Storage Co. v. Gussert, supra.
The claimant denies any allegation of a separate neck injury, and argues that Dr. Rook’s opinion proves that her neck pain is the result of the upper extremity injury. Therefore, the claimant argues that, insofar as Dr. McLaughlin could not document any work-related cervical spine injury, Dr. McLaughlin’s opinion is not inconsistent with Dr. Rook’s testimony. We disagree.
Regardless of whether Dr. McLaughlin could document a separate neck injury, his testimony reflects his opinion that the neck pain is not proximately caused by the left arm injury. Dr. McLaughlin stated that it is just as likely that the claimant’s neck pain is due to degenerative changes or an idiopathic cause. (McLaughlin depo. p. 14). In support, Dr. McLaughlin relied upon the results of the 1995 MRI which reflect degenerative changes in the cervical spine.
In refusing to include a rating for cervical spine impairment, Dr. McLaughlin also relied upon the evidence that the claimant demonstrated a full range of motion in her neck at the time of the IME, and the prior examination by Dr. Brunworth. (McLaughlin, depo. pp. 8, 15). In contrast, Dr. Rook did not perform his own range of motion testing in support of his conclusion that the claimant has a permanent loss of range of motion in the cervical spine. Therefore, Dr. McLaughlin opined that Dr. Rook was postulating a “theory” on the cause of the claimant’s cervical pain which was possible, but not a “probable” medical scenario. (McLaughlin depo. p. 9, 13, 16).
Nevertheless, the claimant argues that Dr. McLaughlin’s testimony is not credible because it is internally inconsistent. The claimant’s argument is based upon Dr. McLaughlin’s statement that he would “expect” the claimant’s employment duties to have “caused or worsened any cervical degenerative changes.” (McLaughlin depo. p. 10). However, as argued by the claimant, the issue here is whether her cervical impairment is causally related to the left upper extremity injury, not whether the duties of her employment caused a separate injury to the cervical spine. It follows that, to the extent Dr. McLaughlin’s testimony contains evidence which might support a finding that the claimant’s cervical problems are causally related to her employment, that testimony is not inconsistent with Dr. McLaughlin’s opinion that the cervical impairment is not a compensable consequence of the left upper extremity injury.
The claimant is obviously dissatisfied with the ALJ’s credibility determinations and assessment of the sufficiency and probative weight of the medical evidence. However, we may not substitute our judgment for that of the ALJ in this regard Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155
(Colo.App. 1993). Therefore, we cannot say that the record compelled the ALJ to find that the claimant overcame Dr. McLaughlin’s impairment rating.
To the extent the claimant has other arguments, they are not persuasive.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 6, 1997, is 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, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed December 19, 1997 to the following parties:
Shirley A. LeBlanc, 8230 Circle Dr., Westminster, CO 80030
Yellow Cab, Inc., 7500 E. 41st Ave., Denver, CO 80216-4706
Colorado Compensation Insurance Authority, Curt Kriksciun, Esq. (Interagency Mail)
James A. May, Esq., 155 S. Madison, Ste. 330, Denver, CO 80203 (For the Claimant)
DOWC, Attn: Faye Boyd, IME Supervisor (Interagency Mail)
By: _______________________________