W.C. No. 4-153-333Industrial Claim Appeals Office.
April 30, 1996
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Gandy (ALJ) insofar as it ordered them to pay medical impairment benefits based upon a disability of ten percent of the whole person. We affirm.
The only medical evidence submitted at the hearing was the report of Dr. Sabin. Dr. Sabin performed a division-sponsored independent medical examination (IME) for the purpose of determining the claimant’s medical impairment resulting from two separate industrial injuries. The only injury of concern here is the claimant’s back injury.
Dr. Sabin stated: “Based on Table 53 page [of the AMA Guides], however, she would get a 10% impairment for operated disc lesion with residual discomfort.” Later, in the same report, Dr. Sabin state the following:
“Dr. Quick mentions, however, that there was a previous history of sciatica treated by a Dr. Hunter a year earlier than when the injury occurred and, therefore, he attributes 4% of her whole person impairment to a previous injury . . . if that, indeed, is true, then I would certainly agree with this . . .”
Based on the IME report, the ALJ found that Dr. Sabin rated the claimant’s permanent medical impairment from the back injury at ten percent of the whole person. The ALJ also stated that “no deductions should be made therefrom.”
On review, the respondents contend that the ALJ erred in failing to apportion between the effects of the industrial injury and the claimant’s alleged pre-existing back condition. The respondents assert that the ALJ erroneously believed that the claimant’s “prior back history was unsupported by any independent corroborative evidence or that it was grounded in hearsay.” The respondents go on to argue that the ALJ’s conclusion is incorrect in view of a report authored by Dr. Quick. We find no error.
Dr. Sabin’s opinion concerning the claimant’s degree of permanent medical impairment was binding on the parties unless overcome by clear and convincing evidence. Metro Moving Storage Co. v. Gussert, ___ P.2d ___ (Colo.App. No. 94CA1926, June 15, 1995); § 8-42-107(8)(c), C.R.S. (1995 Cum. Supp.). Further, we are bound by the ALJ’s finding concerning Dr. Sabin’s rating unless it is unsupported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.).
Here, the ALJ’s interpretation of Dr. Sabin’s IME report is supported by the evidence. Although the report is subject to conflicting interpretations, the ALJ’s interpretation is entirely plausible. The report can be interpreted as establishing that the claimant clearly has a ten percent impairment, and that Dr. Sabin would have apportioned four percent of the impairment to a pre-existing condition had he been in possession of medical evidence documenting the treatment allegedly rendered by Dr. Hunter before the industrial injury.
Because the ALJ’s interpretation of the report is plausible, we may not interfere with it. Metro Moving Storage Co. v. Gussert, supra. The fact that other interpretations might be possible is immaterial, particularly in view of the fact that the respondents did not depose Dr. Sabin and clarify his opinion.
Moreover, the respondents’ reliance on the report of Dr. Quick is unavailing. The respondents did not offer any report from Dr. Quick at the time of hearing, and it does not appear in the record. The respondents’ statements in their brief cannot serve as evidence. Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987).
IT IS THEREFORE ORDERED that the ALJ’s order dated October 25, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
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 April 30, 1996 to the following parties:
Merlinda M. Macedo, 2700 C St., Space 112, Greeley, CO 80631
Richard Keith Enterprises, Inc., 1120 S. College Ave., Ft. Collins, CO 80524-3715
Colorado Compensation Insurance Authority, Attn: Marjorie J. Long, Esq. (Interagency Mail)
George T. Ashen, Esq., 1226 Bannock St., Denver, CO 80204
(For the Claimant)
By: _________________________