W.C. No. 4-334-768Industrial Claim Appeals Office.
December 15, 1998
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Martinez (ALJ), which awarded permanent partial disability benefits based on a nine percent whole person medical impairment rating. The claimant argues that the ALJ erred in finding that the impairment rating of the Division-sponsored independent medical examination (IME) was overcome by clear and convincing evidence. The claimant also contends that the ALJ erred in relying on the impairment rating issued by the treating physician. We affirm.
The ALJ found that the claimant sustained a compensable back injury on April 11, 1997. The claimant had sustained a prior back injury in June 1993.
After reaching maximum medical improvement (MMI) for the 1993 injury the claimant underwent an IME by Dr. Fawcett. Dr. Fawcett opined the claimant had a sixteen percent whole person impairment which included five percent impairment for a specific disorder of the lumbar spine. The claimant continued to experience pain from the 1993 injury until the April 1997 injury.
On September 4, 1997, the claimant reached MMI for the 1997 injury. The treating physician, Dr. Hart, assessed a nine percent impairment of the lumbar spine, but apportioned five percent to the specific disorder previously rated by Dr. Fawcett.
The claimant underwent a Division-sponsored IME by Dr. Bachman. Dr. Bachman assessed a twenty-three percent whole person impairment based on a nineteen percent impairment of the cervical, thoracic, and lumbar spine, and five percent based on psychological impairment.
In an attempt to overcome Dr. Bachman’s rating, the respondents presented the testimony of Dr. Hughes, a physician who examined medical records involving the claimant’s treatment, but not the claimant. Dr. Hughes opined that Dr. Bachman’s rating was improper under the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides) because Dr. Bachman failed to conduct a second examination upon learning that his range of motion measurements were significantly different than those obtained by Dr. Hart in September 1997. (Tr. p. 27). Dr. Hughes also criticized Dr. Bachman’s rating because Dr. Bachman failed to observe that his ratings for lumbar flexion and lumbar extension were essentially those obtained by Dr. Fawcett when he rated the 1993 injury. Dr. Hughes explained that these problems indicated that the claimant was having an “acute episode” at the time he was examined by Dr. Bachman. (Tr. p. 75).
Relying principally on the testimony of Dr. Hughes, the ALJ found that Dr. Bachman’s rating was overcome by clear and convincing evidence. Further, the ALJ stated that “it is clear from the evidence that the correct measure of Claimant’s medical impairment is 4 percent of the whole person as determined by Dr. Hart.” The ALJ then added the four percent rating to the undisputed five percent rating for physiological impairment, and awarded permanent partial disability benefits based on nine percent whole person impairment.
I.
On review, the claimant first contends the ALJ erred in finding that Dr. Bachman’s IME rating was overcome by clear and convincing evidence. In support of this proposition, the claimant argues that the ALJ’s reliance on Dr. Hughes was misplaced because Dr. Hughes did not examine the claimant, and because Hughes erroneously assumed that the claimant exhibited acute symptoms during Dr. Bachman’s examination. The claimant also cites his own testimony that Dr. Bachman examined the medical records, contrary to the testimony of Dr. Hughes. We find no error.
The questions of whether the IME physician properly applied the AMA Guides, and whether his rating was overcome by clear and convincing evidence, are questions of fact for determination by the ALJ. Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995). Because the issues are factual in nature, we must uphold the ALJ’s findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998.
In applying the substantial evidence test, we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving Storage Co. v. Gussert, supra. The fact that the respondents were required to overcome the IME physician’s rating by clear and convincing evidence does not alter the standard of review. Metro Moving Storage Co. v. Gussert, supra.
Moreover, the ALJ is not held to a standard of absolute clarity in expressing his findings of fact. Rather, it is sufficient for the ALJ to make findings of fact concerning the evidence which he found determinative of the issues involved, and to indicate the legal basis of the order. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
The claimant’s arguments notwithstanding, there is substantial evidence in the record to support the ALJ’s finding that Dr. Bachman’s IME rating was overcome by clear and convincing evidence. The fact that Dr. Hughes did not personally examine the claimant was a factor going to the weight, not the admissibility of his opinion concerning the claimant’s rating. The ALJ was persuaded that the examination of the medical records provided a basis for the opinions of Dr. Hughes, and we decline the claimant’s invitation to substitute our judgment for that of the ALJ concerning this expert medical testimony. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990); C.R.E. 702; C.R.E. 703.
We particularly note that Dr. Hughes cited specific provisions of the AMA Guides which indicate that retesting is appropriate when an examining physician’s range of motion measurements are substantially different than those obtained by other examining physicians, or where acute symptoms are present E.g. AMA Guides, section 1.2 at p. 3; section 3.3 at p. 78. Further, it is apparent that the ALJ chose to believe the testimony of Dr. Hughes over that of the claimant concerning the probable extent of Dr. Bachman’s examination of the claimant’s medical records. The claimant’s remaining arguments are factual in nature and without merit considering our standard of review.
II.
The claimant next attacks the ALJ’s use of Dr. Hart’s impairment rating as the basis for the award. The claimant points out that Dr. Hughes criticized Dr. Hart for an inadequate examination of prior medical records, just as he criticized Dr. Bachman. The claimant reasons that Dr. Hart’s rating must be invalidated based on this fact, as well as his alleged noncompliance with the AMA Guides. We disagree.
We have previously held that failure to comply with a specific provision of the AMA Guides does not necessarily invalidate the rating as a whole. Rather, failure to comply with the AMA Guides constitutes some evidence that the rating is invalid. See Steele v. City of Thornton, W.C. No. 4-304-067
(December 2, 1998). Here, Dr. Hughes opined that Dr. Hart’s rating was inconsistent with some dictates of the AMA Guides. However, that evidence, standing alone, did not require the ALJ to conclude that Dr. Hart’s rating was invalid in its entirety.
Moreover, the ALJ could interpret the testimony of Dr. Hughes’ to mean that, as between Dr. Hart and Dr. Bachman, Dr. Hart’s rating was more consistent with the requirements of the AMA Guides. For instance, Dr. Hughes opined that it was unnecessary for Dr. Hart to repeat his testing because the claimant had normal range of motion measurements “except for flexion.” (Tr. p. 51). Dr. Hughes indicated that normal measurements indicated stability, and it would be proper to rate the claimant under such circumstances.
It is also true that Dr. Hughes gave a different rating than Dr. Hart. However, it was for the ALJ to determine which expert’s rating was entitled to the most weight. See Richards v. Coca-Cola Bottling Corp., W.C. No. 4-104-524 (June 26, 1995).
III.
The claimant also argues that the ALJ’s findings of fact are insufficient to permit appellate review, and that the ALJ failed to resolve conflicts in the evidence. However, we consider these arguments to be without merit. The ALJ entered findings of fact concerning the evidence which he found dispositive of the issues involved. We have no difficulty in ascertaining the basis of the ALJ’s order, and we decline to remand the matter for additional findings. Riddle v. Ampex Corp., supra.
Insofar as the claimant has made other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 24, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed December 15, 1998
to the following parties:
Joseph A. Plotner, 620 Bluegill, #2, Grand Junction, CO 81505
Boggs Trucking, Inc., 442 W. Scenic Dr., Grand Junction, CO 81505-9628
Legal Department, Colorado Compensation Ins. Auth., Interagency mail
J. Keith Killian, Esq. Richard T. Gurley, Esq., PO Box 4848, Grand Junction, CO 81502 (For Claimant)
Stephan Schweissing, Esq., PO Box 3177, Grand Junction, CO 81502 (For Respondents)
BY: ____________