W.C. No. 4-323-671Industrial Claim Appeals Office.
April 2, 2002
FINAL ORDER
The pro se claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which denied and dismissed the claim for additional temporary disability and medical benefits. The claimant disputes the ALJ’s finding that she failed to overcome the finding of the Division-sponsored independent medical examination (DIME) physician concerning the date of maximum medical improvement (MMI). We affirm.
That DIME physician placed the claimant at MMI on July 28, 1997, with a diagnosis of “cervical spine myofascial pain, with referral pattern into the intrascapular area and bilateral upper extremities, and with associated cervicogenic headaches.” The DIME physician assessed a 10 percent whole person impairment rating for this condition.
The claimant alleged the industrial injury caused bilateral rotator cuff problems for which she had not received treatment on July 28. Consequently, the claimant sought to overcome the DIME physician’s finding that she reached MMI.
However, after entering exhaustive findings of fact concerning the medical evidence and the testimony taken at two hearings, the ALJ concluded the claimant failed to prove by clear and convincing evidence that her bilateral rotator problems were caused by the industrial injury. Instead, the ALJ was persuaded by medical evidence indicating the claimant did not have symptoms of rotator cuff damage at the time of the 1996 industrial injury. The ALJ also credited medical evidence that rotator cuff damage was inconsistent with the mechanism of the claimant’s industrial injury, and was more probably caused by natural degeneration attributable to the aging process. (Findings of Fact 37-39; Conclusions of Law p. 11).
On review, the claimant makes various factual assertions concerning the circumstances surrounding the industrial injury, and argues the ALJ should have found that her rotator cuff problems were caused by the industrial injury. We find no error.
The claimant was required to prove by clear and convincing evidence that the DIME physician erred in placing her at MMI on July 28, 1997. Section 8-42-107(8)(b)(III), C.R.S. 2001; Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Because the issue of MMI inherently requires a determination of the cause or causes of the claimant’s medical condition, a DIME physician’s opinion that a causal relationship does or does not exist between a particular condition and the industrial injury must be overcome by clear and convincing evidence. See Cordova v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA0852, February 28, 2002).
The question of whether the DIME physician’s finding of MMI has been overcome by clear and convincing evidence is one of fact for determination by the ALJ. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. Under this standard of review, the ALJ is the sole arbiter of conflicting medical evidence. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra.
Here, the claimant did not procure a transcript of the two hearings. Therefore, we must presume the ALJ’s findings, to the extent they are based on the hearing testimony, are supported by substantial evidence Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). Further, we have reviewed the documentary evidence in the record and find that it supports the ALJ’s findings of fact. Consequently, we conclude the record contains substantial evidence to support the ALJ’s determination that the claimant failed to overcome by clear and convincing evidence the DIME physician’s finding of MMI. Substantial, albeit conflicting, medical evidence and opinion supports the ALJ’s determination that the claimant failed to show the bilateral rotator cuff problems are causally related to the industrial injury. The ALJ was not persuaded by the medical evidence favoring the claimant’s theory, nor by the claimant’s lay testimony. We may not substitute our judgment for that of the ALJ on these credibility issues. Cordova v. Industrial Claim Appeals Office, supra.
The claimant’s brief contains certain factual assertions concerning the mechanism of the industrial injury. However, statements in briefs are not evidence, and may not substitute for that which must appear of record. Consequently, we have not considered these factual assertions. Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987).
IT IS THEREFORE ORDERED that the ALJ’s order dated February 6, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Robert M. Socolofsky
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. 2001. 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 April 2, 2002 to the following parties:
Diane Nilsestuen, 20514 West Clark No. 21, Galesville, WI 54630
Nuanes Trucking, Inc., 6641 Colorado Blvd., Commerce City, CO 80022-2219
Dawn M. Yager, Esq., 999 18th Street, Ste. 3100, Denver, CO 80202
Michael J. Steiner, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
BY: A. Pendroy