Opinion
W.C. No. 4-638-044.
May 9, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) dated November 21, 2006, that denied the claimant's request to convert a right lower extremity rating to a whole person impairment rating. We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant suffered admitted industrial injuries to her right knee and right lower extremity on or about December 6, 2004. The respondent filed a final admission of liability placing the claimant at maximum medical improvement and admitting for permanent partial impairment of 14 percent of the right lower extremity based on a medical report of Dr. Aschberger. The claimant did not request a Division-sponsored independent medical examination (DIME). A review of the medical reports show treatment was directed at problems with the right knee and right lower extremity and not the claimant's back or neck. The claimant's testimony supported restrictions of the right lower extremity, but not of body parts beyond the right lower extremity. Other than referred pain, there is no persuasive support in the record for an actual compromise of function in the torso as opposed to the right lower extremity. The ALJ concluded that the claimant failed to prove, by a preponderance of the evidence, that the situs of her functional impairment transcends the right lower extremity. Therefore, the claimant had failed to establish that a whole person rating was more appropriate than the scheduled rating admitted by the respondent.
On appeal the claimant first contends the ALJ committed reversible error by refusing to convert a scheduled rating to a whole person rating because a DIME had not been performed. The claimant argues that the ALJ in his oral order at the time of the hearing stated he was bound by the determination of the authorized treating physician, and therefore a conversion to a whole person rating could not be done, because a DIME had not been performed.
Claimant points out certain of the ALJ's oral comments in the transcript that could be characterized as expressing the opinion that the only way for the claimant to challenge the situs of the impairment was through a DIME. However, it is the ALJ's written order which is the subject of our review. Wait v. Jan's Malt Shoppe, 736 P.2d 1265 (Colo.App. 1987). Therefore, if there is a conflict between oral and written findings, it is the written order that controls. See Reed v. Industrial Claim Appeals Office, 13 P.3d 810, (Colo.App. 2000); Koontz v. Rosener, 787 P.2d 192, 195 (Colo.App. 1989) ("A court's remarks or expressions of opinion made during or at the end of a trial are not necessarily formal findings of fact prepared as a basis for a judgment.").
The ALJ in his written order merely noted that the claimant had elected not to request a DIME to review the impairment rating of Dr. Aschberger. In the conclusions of law section of the written order the ALJ, citing Strauch v. PSL Health Care Systems, 917 P.2d 366 (Colo.App. 1996), determined that the claimant had not carried the burden of proof to establish, by a preponderance of the evidence, that the situs of her work-related injuries was on the torso and that she has suffered functional impairment on the torso as a result of her work-related injuries. The ALJ further noted that the situs of the claimant's functional impairment dictates whether the claimant sustained the loss of an extremity within the meaning of § 8-42-107(2)(a), C.R.S. 2006 or a whole person medical impairment compensable under § 8-42-107(8)(c). The ALJ crediting the opinions of Dr. Aschberger found that the situs of the claimant's functional impairment was at the right knee. We are convinced the ALJ applied the correct legal standard in resolving the factual question of whether the claimant had suffered a functional impairment that is listed on the schedule of disabilities.
The claimant next contends that the ALJ committed reversible error by finding that he was bound by the four corners of the authorized treating physician's report. The claimant recites a certain oral comment of the ALJ contained in the transcript which could be characterized as expressing the opinion that he was limited to the four corners of Dr. Aschberger's opinion. Again it is the ALJ's written order which is the subject of our review. Wait v. Jan's Malt Shoppe, supra. The ALJ in his written order did credit the report and testimony of Dr. Aschberger, but the written order does not indicate the ALJ felt bound to accept Dr. Aschberger's opinion. The ALJ took into consideration the testimony of the claimant involving pain and discomfort in her neck and back, but found that her testimony did not establish that she was suffering from a functional impairment on the torso. The ALJ in his written order again used the correct standard in determining the situs of the claimant's functional impairment and we perceive no basis on which to interfere with the ALJ's finding.
The claimant next contends that the ALJ committed reversible error by determining causation for a back injury, which was not listed as an issue for hearing, rather then proceeding only on the issue of the situs of the knee impairment.
In general, procedural due process entitles the claimant to notice of the issues to be adjudicated and the evidence to be considered, as well as an opportunity to confront adverse witnesses and rebut evidence. See Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). Here, the written order of the ALJ does contain some comments regarding the causal relatedness of the claimant's back problems. However, these were made in the context of deciding the issue presented to the ALJ of deciding the appropriateness of a conversion of an admitted extremity rating to a whole person rating. This determination required consideration of all the evidence presented to establish the situs of the functional impairment and whether it transcended the right lower extremity. The allegation of back pain was intertwined with the issue of the situs of the claimant's impairment. Indeed, the claimant herself argued for consideration of her back pain as evidence on the issue of the situs of her impairment. Tr. at 36. Under these circumstances, we find no violations of the claimant's due process protections. See Robbolino v. Fischer-White Contractors, 738 P.2d 70, 72 (Colo.App. 1987) (objection to timeliness of challenge to wage determination waived when party presented corresponding evidence and failed to object at hearing).
The claimant finally contends that that the ALJ's order must be reversed because the finings of fact are not supported by the evidence. This issue is factual in nature, and we must uphold the ALJ's resolution if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2006. This standard of review requires us to view the evidence in the light most favorable to the prevailing party, and to defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). The court of appeals has noted that in this context the scope of our review is "exceedingly narrow." Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo.App. 1995).
The claimant argues that the ALJ found Dr. Aschberger testified that the claimant never mentioned any problems with her back or neck. However, the claimant asserts that, in fact, Dr. Aschberger did not deny the claimant's testimony that she had told him of her back pain, but only testified that he did not make a note of the conversation. Tr. p. 29. When Dr. Aschberger was asked whether he discussed with the claimant any problems she was having secondary to her injury he said yes and described her complaints regarding her knee and specifically noted that he had no indication in his records of any problems of the back. Tr. p. 29-30. In our opinion the ALJ's finding that the claimant never mentioned any problems with her back or neck to Dr. Aschberger is a plausible inference drawn from the record.
The claimant recites portions of her testimony and certain medical testimony that could support a finding that a whole person rating was more appropriate. However, the existence in the record of conflicting testimony or of evidence that would support a contrary result does not provide a basis for setting aside the ALJ's order. See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo.App. 1999) (the existence of conflicting evidence does not lessen the import of substantial evidence in support of a finding). We perceive no basis upon which to set aside the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order dated November 21, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
Sedgwick CMS Shelli Plummer, Richardson, TX, Chris Forsyth Esq., Denver, CO, (For Claimant).
Blackman Levine LLC., Lawrence D. Blackman Esq., Denver, CO, (For Respondents).