W.C. No. 4-160-379Industrial Claim Appeals Office.
June 13, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Wheelock (ALJ) insofar as it awarded permanent partial disability benefits based on a medical impairment of eighty percent of the whole person. We affirm.
The claimant sustained an injury to his right hand on August 23, 1992, when it was “crushed” between a bakery rack and a freezer door handle. The injury caused a fracture of the fifth metacarpal.
The claimant developed pain into his right upper extremity, and eventually experienced pain in his left upper extremity. The claimant was treated by Dr. Simmerville, who diagnosed possible reflex sympathetic dystrophy (RSD), or a sympathetically mediated pain syndrome.
On November 1, 1995, Dr. Simmerville issued a report placing the claimant at maximum medical improvement (MMI). Dr. Simmerville stated that he had evaluated the claimant’s permanent impairment under the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides), and that the claimant’s situation “most closely approximates” the circumstances contained in § 4.1b of the AMA Guides. This section concerns spinal cord impairment involving both upper extremities. Under this method, Dr. Simmerville opined that the claimant has an eighty percent whole person impairment. Alternatively, Dr. Simmerville stated that the claimant has a fifty-one percent impairment attributable to lost range of motion and reduced grip strength in both upper extremities.
Subsequently, the claimant underwent a Division-sponsored independent medical examination (IME) for purposes of rating his impairment. The IME was conducted by Dr. Griffis, who issued a report on April 2, 1996. Dr. Griffis opined that the claimant is suffering from a “right upper extremity sympathetic mediated pain syndrome” and depression. Under the AMA Guides, Dr. Griffis concluded that the claimant had a thirty-four percent whole person impairment based on spinal cord impairment and psychological factors. The rating did not attribute any impairment to the claimant’s left upper extremity.
Ultimately, the ALJ found that Dr. Griffis’ IME rating was overcome by clear and convincing evidence. In so doing, the ALJ credited the opinions of Dr. Simmerville, as well as other physicians, that the claimant is suffering from RSD or sympathetically mediated pain syndrome affecting both upper extremities. In support, the ALJ stated that a “handwritten note of Dr. Griffis,” which was submitted to the respondents on September 6, 1996, was inconsistent with Dr. Griffis’ deposition testimony. Moreover, the ALJ stated that the note was “not credible” and “not a part of the DOL IME” of April 2, 1996.
Finally, the ALJ found that the eighty percent whole person impairment rating issued by Dr. Simmerville is credible. Consequently, she awarded permanent partial disability benefits based on medical impairment of eighty percent of the whole person.
I.
On review, the respondents first contend that the ALJ erred in “refusing to consider” Dr. Griffis’ September 6, 1996 report as part of his IME opinion. In this report, Dr. Griffis opined that the claimant’s activities, depicted in a videotape taken in January 1995, were inconsistent with the IME examination of April 1996. Moreover, Dr. Griffis opined that the claimant had “magnified his symptoms.” We are not persuaded.
The statutory language currently codified at §8-42-107(8)(c), C.R.S. (1996 Cum. Supp.), provides that the “finding” of the IME physician concerning “the medical impairment rating shall be overcome only by clear and convincing evidence.” As the claimant argues, we have previously held that the IME physician’s “finding” for purposes of subsection (8)(c) is governed by the regulations currently codified in the Rules of Procedure, Part XIV(L)(2)(b) and (k), 7 Code Colo. Reg. 1101-3 at 54. These rules provide that the IME physician’s report is to be submitted to “all parties,” and that the IME physician is not to communicate with the parties except by approval of the Director, or by written agreement or order of an ALJ, or by an approved deposition. As held in Acker v. Jefferson County,
W.C. No. 4-201-155 (March 20, 1996), an impairment rating which is the result of an improper communication outside the rules does not constitute a “finding” of medical impairment under subsection (8)(c).
Consequently, we uphold the ALJ’s conclusion that Dr. Griffis’ September 6 letter to the respondents’ counsel does not constitute a “part of the IME report” for purposes of §8-42-107(8)(c). There is no evidence that the communication between Dr. Griffis and respondents’ counsel was approved in accordance with the Rules of Procedure, or that other parties were provided timely notice of the report. To the contrary, the record supports the ALJ’s conclusion that this communication was outside the formal IME process, and therefore, not a part of it.
Neither do we agree with the respondents’ assertions that the ALJ erred in finding that the September 6 letter was “not credible” and was “inconsistent” with Dr. Griffis’ deposition. In considering these arguments, we are bound by the ALJ’s findings of fact if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.). In applying this standard, we must defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations and the plausible inferences which she drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Insofar as the testimony of a particular witness contained inconsistencies, the ALJ was free to resolve them by believing all, part, or none of the testimony of the witness. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
As the claimant argues, the record contains substantial evidence in support of the ALJ’s finding that the September 6 letter was inconsistent with Dr. Griffis’ deposition testimony. Although Dr. Griffis had not seen the videotape at the time of his August 27, 1996 deposition, he stated that if the claimant performed the activities allegedly depicted in the videotape, that would not lead him to “believe that we have a malingering, symptom-magnifying patient.” (Griffis depo pp. 29). Moreover, Dr. Griffis stated that he would defer to Dr. Simmerville concerning whether or not the videotape evidence indicated “malingering.” (Griffis depo p. 30). Yet, after Dr. Griffis viewed the videotape, he stated in the September 6 letter that the claimant was magnifying his symptoms, and no longer deferred to Dr. Simmerville’s contrary opinion.
Further, substantial evidence supports the ALJ’s finding that the September 6 note was “not credible.” First, the letter itself appears to be a result of a contact outside the context of the strictly regulated IME procedures. Second, the letter is inconsistent with the opinions of several physicians that the claimant has RSD or sympathetically mediated pain affecting his left upper extremity. Third, there is evidence that the January 1995 videotape was taken at a time when the claimant was under the influence of narcotic medications, and that this may have affected his ability to perform the activities depicted in the videotape. (Tr. pp. 58-59). Finally, the videotape was taken nearly one and a half years prior to Dr. Griffis’ IME examination. (Tr. pp. 131-132).
II.
The respondents next contend that the ALJ erred as a matter of law in finding that the IME rating of Dr. Griffis was overcome by clear and convincing evidence. The respondents argue that the ALJ’s rejection of the IME opinion was based on the finding that Dr. Griffis did not rate the claimant’s left upper extremity. The respondents reason that failure to rate the left upper extremity represents a mere “difference of opinion” between Dr. Griffis and Dr. Simmerville, and that this difference does not form an adequate basis for the finding that the IME rating was overcome. We disagree.
The questions of whether the IME physician properly applied the AMA Guides, and whether the IME physician’s rating was overcome by clear and convincing evidence, are issues of fact for determination by the ALJ. Consequently, we must uphold the ALJ’s order if supported by substantial evidence in the record. Metro Moving Storage Co. v. Gussert, supra.
The record reflects a conflict between qualified medical experts concerning the proper rating of the claimant’s medical impairment. The ALJ assessed this conflict in view of all of the evidence in the record. Under these circumstances, we cannot say that the ALJ erred in finding Dr. Simmerville’s opinion more credible than that of Dr. Griffis. It was for the ALJ to assess the relative weight of the opinions of Dr. Simmerville and Dr. Griffis.
III.
The respondents finally contend that the ALJ erred in finding that the claimant sustained an eighty percent medical impairment. They assert that Dr. Simmerville rated the claimant’s impairment as fifty-one percent of the whole person, and would have rated the impairment at eighty percent of the whole person only if he believed the physical capacities evaluation was invalid. (Tr. p. 79). However, the respondents point out that Dr. Simmerville believed that the evaluation was valid. We reject this argument.
It is true that Dr. Simmerville gave alternative ratings, and that his testimony at the hearing could be viewed as favoring the lower fifty-one percent impairment rating. However, his written report can be interpreted as an opinion that the eighty percent impairment rating was most appropriate because the claimant’s condition closely approximates a spinal cord disorder affecting both upper extremities, as defined in § 4.1b of the AMA Guides. To the extent that Dr. Simmerville’s testimony was inconsistent or subject to varying inferences, it was for the ALJ to resolve that inconsistency. Colorado Springs Motors, Ltd. v. Industrial Commission, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 1, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed June 13, 1997 to the following parties:
Steven R. Roberts, 204 N. Hancock, Colorado Springs, CO 80903
James B. and Melissa Whidden, 2761 Briargate Blvd., Colorado Springs, CO 80920-3865
State Farm Fire Casualty, Attn: Patty Ewing, P.O. Box 280929, Lakewood, CO 80228
Carol A. Finley, Esq., 111 S. Tejon St., #700, Colorado Springs, CO 80903 (For Respondents)
Patrick J. McDivitt, Esq., 90 S. Cascade, Ste. 1490, Colorado Springs, CO 80903 (For Claimant)
Gregory R. Werner, Esq., 102 S. Tejon St., Ste. 420, Colorado Springs, CO 80903 (For Respondents)
By: ________________________________