W.C. No. 4-514-339.Industrial Claim Appeals Office.
June 17, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Klein (ALJ) dated January 24, 2005, in which the ALJ denied additional permanent partial disability benefits based upon the conversion of a scheduled impairment rating to a whole person rating. The claimant contends that the ALJ erred in placing on her the burden to overcome the Division independent medical examiner’s rating. We affirm.
The claimant sustained an admitted injury to her knee and hip, which required surgeries that included a right knee arthroplasty and a right hip arthroplasty. The claimant was placed at maximum medical improvement (MMI) by an authorized treating physician, Scott Primack, D.O., who also stated that she had sustained permanent impairment of 33 percent of the lower extremity. A Division independent medical examination (DIME) was performed by Donald Harder, M.D., who stated in his report that the lower extremity rating was appropriate. In an evidentiary deposition of Dr. Harder taken following the hearing, he testified that the statement in his report that the lower extremity rating was appropriate was a “misprint.” The ALJ expressly rejected the testimony of Dr. Harder as not credible and credited the testimony of Dr. Bisgard, who was an independent medical examiner, and of Dr. Primack. Both testified that the impairment rating should be one of the lower extremity rather than of the whole person. The ALJ denied the claimant’s request for permanent partial disability benefits based upon the extremity impairment rating converted to a whole person impairment rating.
On review the claimant contends that, because Dr. Harder testified that the statement in his report approving of the extremity rating was a “misprint,” the respondents should have been required to overcome by clear and convincing evidence the whole person impairment rating. We disagree.
It is true that the opinion of a DIME physician stated in a deposition taken subsequent to his report should be considered, along with the report, as part of the DIME’s “findings” concerning MMI or impairment Lambert Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656
(Colo.App. 1995). However, where the DIME physician retracts or contradicts in his testimony some portion of the written report, the ALJ is not compelled to adopt that testimony as the DIME’s finding. Rather, where the DIME physician’s opinion is ambiguous or subject to conflicting interpretations, resolution of such ambiguities is a question of fact for the ALJ. MGM Supply Co. v. Industrial Claim Appeals Office, 62 P.3d 1001
(Colo.App. 2002). Here it was the ALJ’s responsibility to resolve the conflict between the DIME physician’s written report and his testimony, and we have no basis to interfere with his credibility determination in that regard. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186
(Colo.App. 2002).
In any event, we agree with the respondents that the ALJ correctly applied the proper burdens of proof. If the ALJ had interpreted the DIME physician’s report as assigning whole person impairment and had found that the claimant had functional impairment to the whole person, then it would have been appropriate to require the respondents to overcome the DIME doctor’s rating by clear and convincing evidence. Warthen v. Industrial Claim Appeals Office, 100 P.3d 581 (Colo.App. 2004). However, the ALJ made neither of those findings. Rather, the ALJ correctly recognized that the burden was on the claimant to show by a preponderance of the evidence that she had sustained an injury not listed on the schedule of disabilities. See § 8-42-107(1)(a), C.R.S. 2004. The ALJ also correctly recognized that that showing required the claimant to establish that the situs of the functional impairment was off the schedule and could not be compensated fully using a scheduled award. Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996).
Contrary to the claimant’s argument, we cannot locate in the ALJ’s order anything requiring the claimant to overcome the DIME report by clear and convincing evidence. Neither of the conclusions of law cited by the claimant refer to that quantum of evidence, nor does the ALJ elsewhere specify that he has applied that burden to the claimant. On the contrary, his extensive discussion of the requirement that the claimant establish by a preponderance of the evidence that she sustained functional impairment not compensated by the schedule of disabilities persuades us that he applied the correct burden of proof. See Conclusions of Law, ¶ 5-8, at p. 6-7.
The claimant also argues that the ALJ erred in “ignoring” Dr. Bisgard’s reference to the claimant’s complaints of low back pain during the course of her treatment. The claimant notes that the ALJ stated in Finding of Fact No. 7 that there were “no other references to low back pain in the medical records.” She argues that this finding is evidence that the ALJ overlooked Dr. Bisgard’s discussion of the claimant’s low back complaints. We disagree.
It is clear from the ALJ’s order that he was fully aware of both the report and the testimony of Dr. Bisgard regarding the claimant’s low back complaints. In Finding of Fact No. 6 the ALJ discussed Dr. Bisgard’s report as it pertained to the claimant’s low back complaints. Further, in Finding of Fact No. 13 he entered factual findings concerning Dr. Bisgard’s testimony on the same issue. We are persuaded from a reading of the ALJ’s order that, contrary to the claimant’s argument, he did not “ignore” the references in Dr. Bisgard’s reports to the claimant’s low back pain. The ALJ is presumed to have considered all the relevant evidence; however, he is not required to make specific findings concerning every piece of evidence. Dravo Corp. v. Industrial Commission, 40 Colo. App. 57, 569 P.2d 345 (1977). Rather, he is only required to enter findings on evidence found dispositive, and inferences inconsistent with the order are presumed to have been rejected. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000).
IT IS THEREFORE ORDERED that the ALJ’s order dated January 24, 2005 is affirmed.
Clara Villoch, Highlands Ranch, CO, Opus Northwest, LLC, Denver, CO, Jerri Sandstrom, Opus Northwest, LLC, Minneapolis, MN, Larry Peluso, St. Paul Fire Marine Insurance Co., Denver, CO, Roger Fraley, Jr., Esq., Denver, CO, (For Claimant).
Michael J. Barbo, Esq., E. Orchard, Greenwood Village, CO, (For Respondents).