W.C. No. 4-447-252Industrial Claim Appeals Office.
March 7, 2002
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Stuber (ALJ) which awarded permanent partial disability benefits based on 42 percent whole person impairment. We affirm.
The claimant suffered an admitted industrial neck injury on November 21, 1998. MRI studies revealed compression deformities at C3, C4, C5; a bulging disc at C4-5; and spinal stenosis at C3-4 through C5-6. In 1999, the claimant underwent decompression surgery at C3-4, C4-5 and C5-6. As a result of the injury, the claimant also developed depression which was worsened by his inability to return to his pre-injury occupation.
The claimant ultimately underwent a Division-sponsored independent medical examination (DIME) by Dr. Woodcock under the provisions of § 8-42-107(8)(c), C.R.S. 2001. Dr. Woodcock assigned 12 percent impairment for a specific disorder of the spine, 18 percent for range of motion deficits in the cervical spine, 7 percent for gait deficits, 5 percent for bladder urgency and 8 percent for permanent mental impairment. Dr. Woodcock’s combined rating was 42 percent whole person impairment.
In contrast, the treating physician, Dr. Kuper, assigned a 17 percent medical impairment rating based on 12 percent for a specific disorder of the spine and 6 percent for range of motion deficits in the cervical spine. Dr. Kuper did not include a rating for mental impairment.
At the respondent’s request, the claimant was also examined by Dr. Orent. Dr. Orent disagreed with the DIME physician’s ratings for range of motion deficits to the cervical spine, gait deficits, and bladder urgency. Further, Dr. Orent opined the claimant was not at maximum medical improvement for the psychological injury and, therefore, did not include a rating for permanent mental impairment.
Relying on the opinions of Dr. Orent, the respondent applied for a hearing to overcome the DIME physician’s rating for cervical range of motion impairment and argued Dr. Woodcock should have apportioned the mental impairment rating.
The ALJ found the difference of opinions among Dr. Orent, Dr. Kuper and Dr. Woodcock did not rise to the level of clear and convincing evidence to overcome the DIME physician’s rating. In support, the ALJ credited Dr. Woodcock’s opinion that the claimant’s “massive pathology” was almost certainly progressive and could be expected to demonstrate worsening range of motion, and therefore, the ALJ was not persuaded by Dr. Orent’s opinion that the claimant was exaggerating his cervical range of motion impairment. Further, the ALJ recognized the claimant was treated for depression in 1996 and 1997, but found the claimant recovered and had no permanent psychiatric impairment at the time of the neck injury. Therefore, the ALJ determined it was not appropriate to apportion the claimant’s mental impairment rating and ordered the respondent to pay permanent partial disability benefits in accordance with the DIME physician’s rating.
On appeal, the respondent generally contends the ALJ’s findings are not supported by the evidence, the findings do not support the order, and the order is not consistent with the applicable law. In particular, the respondent contends the ALJ erred in finding the DIME rating was valid and argues the ALJ should have awarded benefits based on Dr. Kuper’s impairment rating. The respondent has not filed a more specific brief in support of the appeal, and consequently, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642
(Colo.App. 1986). We perceive no reversible error in the ALJ’s order.
Section 8-42-107(8)(c) provides that the DIME physician’s impairment rating is binding unless overcome by “clear and convincing evidence.” As argued by the claimant, clear and convincing evidence has been defined as evidence which demonstrates that it is “highly probable” the DIME physician’s rating is incorrect. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Also, under former § 8-42-104(2), C.R.S. 1998 [amended in 1999 for injuries occurring on or after July 1, 1999], it is not proper to apportionment impairment to a prior medical condition unless the prior condition is disabling at the time of the subsequent injury. Askew v. Industrial Claim Appeals Office, 914 P.2d 416 (Colo.App. 1995).
We must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. This requires that we 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. Accordingly, the scope of our review is narrow.
Here, the ALJ’s pertinent findings of fact are supported by substantial evidence in the testimony of the claimant and Dr. Woodcock. See Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638
(1941) (ALJ considered to possess specialized knowledge which renders him competent to evaluate medical evidence and draw plausible inferences from it); Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995). We may not substitute our judgment for that of the ALJ concerning the probative value and sufficiency of the medical evidence. See City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993). Therefore, we have no basis for interfering with the ALJ’s determinations that the opinions of Dr. Kuper and Dr. Orent did not rise to the level of “clear and convincing evidence” so that it was highly probable Dr. Woodcock incorrectly rated the claimant’s permanent impairment, and that the respondent failed to prove the claimant’s prior depression was disabling at the time of the 1998 injury. The ALJ’s findings support the conclusion that the respondent failed to overcome the DIME physician’s impairment rating, and that conclusion supports the award of benefits under §8-42-107(8)(c).
IT IS THEREFORE ORDERED that the ALJ’s order dated August 6, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed March 7, 2002 to the following parties:
Paul Winterly, 2693 W. Water Ave., Denver, CO 80219
Earthgrains Company, 7300 Brighton Blvd., Commerce City, CO 80022
Pacific Employers Insurance Company, P.O. Box 2941, Greenwood Village, CO 80150
John A. Sbarbaro, Esq., 226 W. 12th Ave., Denver CO 80204-3625 (For Claimant)
Gregory B. Cairns, Esq., 1200 17th St., #1700, Denver, CO 80202 (For Respondents)
BY: A. Pendroy