W.C. No. 4-437-710Industrial Claim Appeals Office.
October 25, 2002
FINAL ORDER
The claimant, acting pro se, seeks review of an order of Administrative Law Judge Harr (ALJ) which denied and dismissed her claim for additional permanent partial disability benefits. We affirm.
In 1999 the claimant suffered an admitted lifting injury. An MRI study revealed a right rotator cuff tear. The claimant underwent surgery to repair the injury and post-surgery physical therapy was prescribed to improve mobility in the right shoulder. The claimant subsequently reported pain symptoms in her upper back, ribs, neck, hands, fingers, and left foot. The claimant also complained of a poor result from surgery.
On December 13, 2000, a Division-sponsored independent medical examination (DIME) physician opined the industrial injury caused 14 percent impairment to the right upper extremity. The DIME physician also opined that the claimant’s remaining musculoskeletal and psychological problems were pre-existing and unrelated to the industrial injury.
The respondents filed a Final Admission of Liability for the payment of permanent partial disability benefits consistent with the DIME physician’s rating. The claimant timely objected and requested a hearing to overcome the DIME physician’s rating.
On conflicting medical evidence, the ALJ rejected the claimant’s contention that she was denied adequate treatment for the industrial injury. The ALJ also determined the claimant failed to present “clear and convincing” evidence to overcome the DIME physician’s opinion on the cause of the claimant’s musculoskeletal and psychological problems. Therefore, the ALJ denied and dismissed the claimant’s request for permanent partial disability benefits beyond the scheduled disability award set forth in the respondents’ Final Admission. The claimant timely appealed.
The claimant’s Petition to Review contains general allegations of error under § 8-43-301(8), C.R.S. 2002. However, the claimant’s pro se
brief in support of the Petition to Review does not allege any specific errors by the ALJ. Rather, the claimant contends that, in hindsight, she should have alleged a “worsening of condition,” or “error.” The claimant also renews her objections concerning the medical care she received. In support, she contends she been diagnosed with fibromyalgia, degenerative arthritis, rheumatoid arthritis, and carpal tunnel syndrome. She contends these conditions were never addressed by Dr. Long, the insurer or the therapists. Further, she contends that she has “broken down” at work many times since the entry of the ALJ’s order and makes allegations her attorneys of record did not adequately represent her.
Under § 8-43-301(8), C.R.S. 2002, we may not disturb the ALJ’s order unless the ALJ’s findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ’s findings, the findings do not support the order, or the order is not supported by the applicable law. Therefore, we have no authority to set aside the ALJ’s order based upon an inquiry into the adequacy of representation by the claimant’s counsel.
Section 8-42-107(8)(c), C.R.S. 2002, provides that the DIME physician’s medical impairment rating including his opinion on the cause of the claimant’s impairment is binding unless overcome by “clear and convincing evidence.” 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). “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 DIME 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. 2002. 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.
We have reviewed the record and the ALJ’s findings of fact. The ALJ’s findings are sufficient to permit appellate review, and the findings indicate that the ALJ resolved conflicts in the evidence based upon his credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489
(Colo.App. 1992).
The claimant has not provided a transcript of the hearing on October 23, 2001. The claimant alleged she did not obtain a complete hearing transcript because she was laid off. However, there is no evidence the claimant petitioned for a waiver of the transcript fee. See § 8-43-213(3), C.R.S. 200 ; Paul v. Industrial Commission, 632 P.2d 638 (Colo.App. 1981) (pro se litigants are presumed to know applicable statutes and required to act accordingly). Under these circumstances we are required to presume the ALJ’s findings of fact are supported by substantial evidence in the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800
(Colo.App. 1988).
The ALJ’s findings are also supported by the deposition testimony of Dr. Entin and the medical reports of Dr. Long, Dr. Wisner and Dr. Lesnak. Moreover, the ALJ’s factual determinations support the conclusion that the claimant failed to sustain her burden to overcome the DIME physician’s opinion. Therefore, the ALJ did not err in denying the claim for additional permanent disability benefits and the claimant has failed to establish grounds which afford us a basis to grant appellate relief.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 20, 2001, 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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. 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 October 25, 2002 to the following parties:
Mary Ellen Morfenski, Box 196, Erie, CO 80516
Kris Phillips, Exabyte Corporation, 1685 38th St., Boulder, CO 80301
Ginger Cook, Argonaut Insurance Company, 5690 DTC Blvd., #290 West, Englewood, CO 80111
Jeffrey J. Cowman, Esq., 1899 Wynkoop St., #700, Denver, CO 80202 (For Respondents)
Tessa Alexander, Esq., P.O. Box 1933, Longmont, CO 80502-1933 (For Claimant)
David Levy, Esq., 745 Walnut Street, Boulder, CO 80302 (For Claimant)
BY: ____A. Hurtado_____