Opinion
W.C. No. 4-302-749
October 22, 1999
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Gandy (ALJ) dated March 31, 1999, which was entered pursuant to our Order of Remand dated March 2, 1999. We affirm.
On January 31, 1996, the claimant suffered a compensable injury to her right wrist. The claimant was treated by several physicians, including Dr. Adnan. The claimant was also referred to Dr. Cohen for psychological treatment. On September 8, 1997, Dr. Adnan placed the claimant at maximum medical improvement (MMI) with 13 percent permanent impairment of the upper extremity. Dr. Adnan did not include a rating for psychological impairment. Dissatisfied with Dr. Adnan's opinions, the claimant requested a Division-sponsored independent medical examination (IME) by Dr. Klingbeil on the issues of MMI and permanent impairment. Dr. Klingbeil opined the claimant reached MMI on September 8, 1997, with 19 percent permanent impairment to the upper extremity and no psychological impairment. The claimant was also evaluated by Dr. Pock who assigned 16 percent whole person impairment for a work-related psychological injury.
Relying on Dr. Cohen's opinions, the ALJ found the claimant overcame Dr. Klingbeil's finding of MMI. Therefore, in an order dated August 4, 1998, the ALJ ordered the respondents to pay ongoing medical benefits. The respondents timely appealed the ALJ's order.
In our previous order issued on March 2, 1999, we concluded that the ALJ's findings were insufficient to permit appellate review. Therefore, we set aside the August 4 order and remanded the matter for additional findings and the entry of a new order.
Pursuant to that remand, the ALJ issued the order dated March 31, 1999. The ALJ found that the claimant failed to overcome Dr. Klingbeil's opinions by "clear and convincing evidence." In support, the ALJ credited the opinions of Dr. Cohen and Dr. Adnan that the claimant reached MMI from the psychological injury without permanent impairment. Consequently, the ALJ ordered the respondents to pay permanent partial disability benefits commencing September 8, 1997, in accordance with Dr. Klingbeil's rating. The ALJ also ordered the respondents to pay interest of 8 percent per annum on all benefits not paid when due "pursuant to statute."
I.
The claimant contends that because our Order of Remand directed the ALJ to enter "additional" findings, the ALJ exceeded the scope of our remand in making findings which are inconsistent with his prior order. We disagree.
In remanding the matter, we expressly concluded that the ALJ's pertinent findings of fact did not accurately reflect the state of the evidence. In particular we noted that the ALJ's findings of fact concerning Dr. Cohen were inconsistent with Dr. Cohen's November and December 1996 medical reports. Therefore, we directed the ALJ to issue findings of fact which were consistent with the evidence. It follows that our Order of Remand contemplated new findings of fact, and did not require the ALJ to adhere to his prior findings. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) (ICAP in best position to determine scope of its own remand).
We also reject the claimant's contention that the ALJ failed to resolve conflicts in the evidence. Section 8-42-107(8)(c), C.R.S. 1999, provides that the IME physician's rating is presumed to be correct and is binding on the parties and the ALJ unless overcome by "clear and convincing evidence." The party who disputes the IME physician's rating bears the burden of proof. The question of whether the IME physician's rating has been overcome by "clear and convincing evidence" is a matter of fact for determination by the ALJ. Metro Moving Storage Co. v. Gussert, 914 P.2d. 411 (Colo.App. 1995). In resolving this issue, the ALJ must consider the factual question of whether the IME physician properly applied the AMA Guides and other rating protocols. See Metro Moving Storage Co. v. Gussert, supra.
We have previously held that proof of an IME physician's deviation from established rating protocols does not require the ALJ to find that the physician's rating has been overcome by clear and convincing evidence. Rivale v. Beta Metals, Inc., W.C. No. 4-265-360 (April 16, 1998) ; Sutton v. Alpen Construction, W.C. No. 4-225-415 (April 1, 1997) , aff'd, Sutton v. Industrial Claim Appeals Office (Colo.App. No. 97CA0711, November 13, 1997) (not selected for publication). Rather, proof of deviation must be considered in the context of all the evidence when the ALJ makes the ultimate determination of whether the IME's rating has been overcome by clear and convincing evidence. E.g. Juarez v. Arapahoe Associates, Ltd., W.C. No. 4-122-705 (May 10, 1996); Aguirre v. American Linen, W.C. No. 4-132-021 (March 14, 1994).
Because the issue is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. See § 8-43-301(8), C.R.S. 1999. Application of the substantial evidence test requires that we defer to the ALJ's credibility determinations and plausible inferences drawn from the record. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995); Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (ALJ free to credit one medical opinion to the exclusion of a contrary medical opinion). Furthermore, the ALJ is only required to resolve pertinent conflicts in the evidence, and make findings on the evidence he found persuasive and determinative of the issues. General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994); Ralston v. Purina-Keystone v. Lowry, 821 P.2d 910 (Colo.App. 1991).
It is undisputed that Dr. Klingbeil did not prepare a mental impairment worksheet at the time of the IME examination as required by the Rules of Procedure XIX(E)(3), 7 Code Colo. Reg. 1101-3 at 125 (1996). However, the claimant concedes that Dr. Klingbeil eventually filed a mental impairment worksheet to support her opinion the claimant suffered zero mental impairment from the industrial injury. Furthermore, as noted in our Order of Remand, Dr. Klingbeil's narrative report dated December 3, 1997, contains the same information as the mental impairment worksheet. Under these circumstances, the ALJ could reasonably infer that Dr. Klingbeil's initial failure to complete a mental impairment worksheet does not rise to "clear and convincing" evidence that Dr. Klingbeil incorrectly rated the claimant's mental impairment.
Moreover, Dr. Klingbeil's zero rating for mental impairment is consistent with the evidence that neither Dr. Cohen nor Dr. Adnan found any rateable psychological impairment from the industrial injury. Therefore, the record contains substantial evidence to support the ALJ's determination that the claimant failed to sustain her burden to overcome Dr. Klingbeil's rating.
However, the claimant contends the ALJ erred insofar as he determined that Dr. Cohen found no compensable psychological injury. The claimant also contends that Findings of Fact 11-14 are not indicative of Dr. Cohen's "overall" opinions or the claimant's "treatment as a whole." Consequently, the claimant argues that the ALJ's findings are not supported by the record. Again, we disagree.
Contrary to the claimant's contention, the ALJ recognized that Dr. Cohen considered the claimant's psychological problems to be a combination of work-related and personal stressors, and that Dr. Cohen treated the work-related component of the problems. (Findings of Fact 11-14). However, Dr. Cohen determined that the work-related component did not result in any permanent psychological injury, and the ALJ was persuaded by Dr. Cohen's opinion. (Dr. Cohen reports dated September 17, 1996; November 21, 1996; December 5, 1996; December 12, 1996; January 2, 1997).
We may not substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of Dr. Cohen's opinions. Furthermore, insofar as Dr. Cohen's reports are subject to conflicting inferences, it was the ALJ's sole prerogative to resolve the conflicts. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). In so doing, the ALJ was free to credit all, part, or none of Dr. Cohen's opinions. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). Consequently, it is immaterial that the record contains evidence which, if credited, might support a contrary result.
II.
Next, the claimant contends that the ALJ erroneously denied disfigurement benefits by ordering that:
"[A]ny and all other and further claims for additional workers' compensation benefits, except as set forth in the herein 'Order of Remand' in the form of additional health care and indemnity are denied and dismissed."
The respondents concede that the issue of disfigurement benefits was not before the ALJ. The respondents also contend that the ALJ's order does not deny disfigurement benefits and does not preclude the claimant from filing an application for hearing on the issue of disfigurement benefits.
We agree with the respondents that the ALJ's order neither awards nor denies disfigurement benefits. Furthermore, it is undisputed that disfigurement benefits was not endorsed for adjudication. Therefore, the claimant's argument is premature.
III.
Finally, we reject the claimant's contention that the ALJ's award of interest is inconsistent with case law, and must be "clarified." Section 8-43-410(2), C.R.S. 1999, provides that "an employer shall pay interest at the rate of eight percent per annum upon all sums not paid upon the date fixed by the award." Interest is a statutory right and applies automatically on the date payment is due. Beatrice Foods Co., Inc. v. Padilla, 747 P.2d 685 (Colo.App. 1987). The date payment is due is the date on which the claimant becomes entitled to the benefits, not the date of the ALJ's order. Subsequent Injury Fund v. Industrial Claim Appeals Office, 899 P.2d 220 (Colo.App. 1994); Fuentez v. Hewlett Packard, W.C. No. 4-201-920 (December 18, 1998).
Permanent partial disability benefits become due at MMI, and therefore, in Esquibel v. Denver Public Schools, W.C. No. 4-329-119 (February 11, 1999), we held that permanent partial disability benefits not paid when due accrue interest at the rate of 8 percent per annum. See Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995).
The ALJ ordered the respondents to pay interest at the rate of 8 percent per annum "on all amounts of compensation due, not paid when due, pursuant to statute." Nothing in the ALJ's order is inconsistent with § 8-43-410(2) or our conclusions in Esquibel. Therefore, the claimant has failed to establish grounds to remand the matter for clarification of the interest award. In the event the respondents fail to pay interest "pursuant to statute," the claimant is free to apply for a further hearing or request penalties.
IT IS THEREFORE ORDERED that the ALJ's order dated March 31, 1999, 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, 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. 1999.
Copies of this decision were mailed October 22, 1999 to the following parties:
Mindy McKelvey aka Mindy Harvey, 1029 N. Washington, Loveland, CO 80537
Wal-Mart Stores, Inc., D.C. No. 6019, 7500 E. Crossroads Blvd., Loveland, CO 80538
Jon Causseaux, Claims Management, Inc., 3901 Adams Rd., #C, Bartlesville, OK 74006-8458
Mary E. Jeffers, Esq., 1120 Lincoln St., #1000, Denver, CO 80203 (For Claimant)
Richard A. Bovarnick, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy