W.C. No. 4-248-731Industrial Claim Appeals Office.
April 13, 1999.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) insofar as it awarded permanent partial disability benefits based upon 12 percent whole person impairment. We affirm.
The claimant suffered a compensable left shoulder injury on February 7, 1994. In January 1996, Dr. Weinstein placed the claimant at maximum medical improvement (MMI). Dr Weinstein further opined that the claimant suffered 19 percent permanent impairment of the upper extremity, which he converted to 11 percent whole person impairment, under the American Medical Association Guides to the Evaluation of Permanent Impairment,
Third Edition Revised (AMA Guides). The ALJ found that the claimant’s condition subsequently worsened, and he received further treatment from Dr. Higginbotham and Dr. Griffis. On September 23, 1997, Dr. Higginbotham placed the claimant at MMI and determined that claimant sustained permanent impairment of 21 percent as a whole person, due to a specific disorder of the thoracic spine, left shoulder impingement, and range of motion deficits measured by grip strength tests. The claimant’s permanent impairment was rated by Dr. Griffis as 24 percent of the whole person, which included a rating for a specific disorder of the thoracic spine. The claimant was also evaluated by Dr. Brunworth, who issued a 25 percent upper extremity rating.
Ultimately, the claimant underwent a Division-sponsored independent medical examination (IME) by Dr. Schutt. Dr. Schutt rated the claimant’s impairment as 16 percent of the upper extremity due to range of motion deficiencies and joint crepitation. Dr. Schutt converted the upper extremity rating to 10 percent whole person impairment. Dr. Schutt did not include a rating for impairment of the thoracic spine and did not conduct grip strength measurements.
The ALJ found that Dr. Schutt erred in failing to include a range of motion impairment rating for lost internal and external rotation of the left shoulder. Therefore, the ALJ determined that the claimant overcame Dr. Schutt’s medical impairment rating by “clear and convincing” evidence, as required by § 8-42-107(8), C.R.S. 1998.
The ALJ was also unpersuaded that the claimant suffered permanent impairment to the thoracic spine, as opined by Dr. Higginbotham and Dr. Griffis. However, the ALJ credited Dr. Higginbotham’s twelve percent rating for the shoulder. In making this assessment, the ALJ observed that if Dr. Schutt’s rating were corrected to include a 4 percent rating for internal and external rotation impairment, as noted by Dr. Higginbotham, Dr. Schutt’s rating would also equal 12 percent whole person impairment. The ALJ therefore determined that Dr. Higginbotham’s rating was the best measure of the claimant’s permanent impairment to his shoulder, and ordered the respondents to pay medical impairment benefits for 12 percent whole person impairment.
On review, the claimant contends that the ALJ erroneously relied on Dr. Schutt’s medical impairment rating after finding that it was overcome by clear and convincing evidence. The claimant also contends the ALJ erred in determining that it was the examining physician’s prerogative to utilize grip strength or joint crepitation tests to rate shoulder impairment. Further, the claimant contends the ALJ erred in failing to consider the rating of the authorized treating physician who provided the primary care. We perceive no error.
Although the ALJ determined that Dr. Schutt’s net “rating” was overcome by clear and convincing evidence, the ALJ was not obliged to discredit Dr. Schutt’s entire opinion. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). Because the proper rating was a question of fact, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998; Johnson v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA0413, October 2, 1997). Application of the substantial evidence standard requires that we defer to the ALJ’s resolution of conflicts in the evidence and reasonable inferences he drew from the record.
We conclude that the ALJ’s determination is supported by substantial evidence. The ALJ’s observation that, as corrected, Dr. Schutt’s rating for the claimant’s shoulder was consistent with that of Dr. Higginbotham supports the ALJ’s consideration of that portion of Dr. Schutt’s opinion he found persuasive.
The claimant does not identify the doctor he considers to be the “primary care” physician, and has not filed brief which elaborates on this contention. Consequently, the effectiveness of our review is limited. See Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986). Nevertheless, we conclude that the ALJ’s findings reflect his consideration of the impairment ratings of the authorized treating physicians. The ALJ determined that Dr. Weinstein’s rating was unpersuasive because it was conducted before the claimant suffered the worsening of condition, and that there were “problems” with all of the ratings. (Conclusions of Law 3). This finding is supported by Dr. Higginbotham’s admission that his grip strength tests did not conform to the AMA Guides. (Tr. p. 34). Furthermore, the ALJ determined that Dr. Higginbotham and Dr. Griffis erroneously included a rating for impairment to the thoracic spine.
Dr. Higginbotham also testified that under the AMA Guides, the examining physician has discretion to either conduct grip strength tests, or rely on joint crepitation tests to measure functional impairment of the shoulder. (Tr. pp. 34-36). Therefore, we may not interfere with the ALJ’s determination that Dr. Schutt did not misapply the AMA Guides in failing to conduct grip strength testing.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 2, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________________ Kathy E. Dean
__________________________________ Dona Halsey
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, 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed April 13, 1999
the following parties:
James A. Weis, 19533 Murphy Rd., Peyton, CO 80831
Litton Systems, Inc., Tama L. Levine, Esq., 1515 Arapahoe St., Tower 3, #600, Denver, CO 80202
Continental Casualty Company, Attn: Pam DeSantis, CNA Insurance Companies, P.O. Box 17369 T.A., Denver, CO 80217
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Tama L. Levine, Esq., 1515 Arapahoe St., Tower 3, #600, Denver, CO 80202 (For Respondents)
BY AP