W.C. No. 4-684-359.Industrial Claim Appeals Office.
September 9, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated February 14, 2008, to the extent that the ALJ found that the respondents overcame the opinion of the Division-sponsored independent medical examination (DIME) physician that the claimant sustained a medical impairment rating for her cervical spine. We affirm.
This matter proceeded to hearing with both the claimant and the respondents seeking to overcome portions of the DIME physician’s opinions. The claimant sought to overcome the determination that she had reached of maximum medical improvement and the respondents challenged the corresponding permanent impairment rating. In addition, the claimant sought to prove that she was entitled to additional diagnostic testing recommended by the DIME physician.
The ALJ’s findings of fact are summarized as follows. The respondent insurer admitted liability for the claimant’s left shoulder condition. Dr. Thompson, the claimant’s authorized treating physician, referred the claimant for evaluation and later placed the claimant at maximum medical improvement and rated her permanent medical impairment at nine percent of her left upper extremity. The insurer filed a final admission of liability, accordingly. The claimant objected to the admission and requested a DIME. Dr. Gellrick conducted the DIME and diagnosed bilateral shoulder strains, bursitis, impingement symptoms, and cervical spine strain with degenerative changes. Dr. Gellrick determined that the claimant had reached maximum medical improvement and provided permanent medical impairment ratings for the claimant’s upper extremities totaling three percent of the whole person. Dr. Gellrick also provided a rating of the
Page 2
claimant’s cervical spine of six percent of the whole person, which resulted in the claimant being rated at nine percent of the whole person.
The ALJ found that the respondents had shown it was “highly probable” that Dr. Gellrick incorrectly determined the claimant’s cervical spine symptoms to be causally related to her work injury. Findings of Fact, Conclusions of Law, and Order (Order) at 5, ¶ 18. In support of his finding, the ALJ credited Dr. Gellrick’s testimony concerning causation of the claimant’s neck symptoms, which the ALJ described as “equivocal,” and the lack of support of causation in various medical records. The ALJ therefore denied medical impairment benefits based on the claimant’s cervical condition.
The claimant contends that the ALJ erred in finding that the respondents overcame Dr. Gellrick’s impairment rating of the claimant’s cervical spine. In support of her contention, the claimant asserts that the ALJ’s consideration of her medical records essentially usurped the DIME physician’s role in providing a medical opinion as to the extent of her medical impairment. In our view, the ALJ’s consideration of the claimant’s medical records was consistent with his role in determining whether the DIME physician’s impairment rating would stand.
It is true that permanent partial disability determinations are now medical in nature. See Best-Way Concrete Co. v Baumgartner, 908 P.2d 1194, 1196 (Colo.App. 1995) (“human factors” deleted from determination of permanent partial disability and replaced by system of medical impairment ratings and schedule of injuries). Under § 8-42-107(8)(c), C.R.S. 2007, the DIME physician’s finding of medical impairment is binding unless overcome by clear and convincing evidence. “Clear and convincing” evidence has been defined as evidence which demonstrates that it is “highly probable” that the DIME physician’s rating is incorrect 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). Therefore, the standard of review remains whether the ALJ’s findings of fact are supported by substantial evidence in the record. Id. This standard of review is deferential and the scope of our review is “exceedingly narrow.” Id. at 415.
Under this standard of review, it is the ALJ’s sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. We may not substitute our judgment for that of the ALJ regarding credibility matters unless there is such hard, certain evidence contradicting the ALJ’s determination that it would be error as a matter of law. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). The existence of evidence in the record which, if credited, might permit a contrary result also affords no basis for relief on appeal Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). Furthermore, inconsistencies, contradictory evidence, and
Page 3
incomplete testimony are not uncommon in workers’ compensation claims and it was the ALJ’s sole prerogative as the fact finder to resolve any inconsistencies in the testimony. See West v. Aranda, No. 92CA1576 (Colo.App., July 1, 1993) (not selected for publication).
The ALJ found “no persuasive support from claimant’s treating physicians for Dr. Gellrick’s opinion concerning claimant’s cervical spine symptoms.” Order at 3, ¶ 8. The ALJ referred to several medical reports in support of this finding for which we find support in the record. For example, the claimant was found to have a non-tender neck, with full motion, according to a report dated December 13, 2005. Exhibit 5 at 25. Similar findings were reported on January 24 and February 14, 2006. Exhibit 5 at 20, 22. The ALJ found that Dr. Parker noted on February 2, 2006, that the claimant had full cervical range of motion in all planes. Order at 3, ¶ 9. The record includes a report from Dr. Parker, dated February 3, 2006, stating that the claimant’s “[c]ervical range of motion is full in all planes.” Exhibit 6 at 3. Dr. Hemler examined the claimant’s neck on November 6, 2006 and found “no signs of cervical adenopathy or thyromegaly.” Exhibit C. Physical therapist Roush observed the claimant making a full 80-90 degree cervical rotation. Exhibit 7 at 5; Exhibit D. Moreover, the ALJ found Dr. Gellrick’s testimony “equivocal” concerning the causation of the claimant’s neck symptoms. Order at 6, ¶ 18; Gellrick Depo. at 11. In addition, the ALJ found that some of the claimant’s factual recitations to Dr. Gellrick, such as the weight of boxes lifted at work, “lacked credibility.” Order at 3, ¶ 7; Exhibit 4 at 5; Tr. at 16. The ALJ’s determination that Dr. Gellrick’s impairment rating for the claimant’s cervical spine was overcome is supported by the record.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 14, 2008, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
Page 4
AMPELIA DE SANTIAGO, FORT COLLINS, CO, (Claimant).
WATER PIK TECHNOLOGIES, INC., Attn: SHERRIE NORMAN, FORT COLLINS, CO, (Employer).
SENTRY INSURANCE, Attn: JULIE RUCINSKI, PHOENIX, AZ, (Insurer).
JESS M. PEREZ, ESQ., C/O: RING ASSOCIATES, PC, FORT COLLINS, CO, (For Claimant).
DOUGLAS L. STRATTON, ESQ., C/O: RITSEMA LYON, PC, FORT COLLINS, CO, (For Respondents).
Page 1