Opinion
W.C. No. 4-465-023
November 18, 2002
FINAL ORDER
The pro se claimant seeks review of an order of Administrative Law Judge Muramoto (ALJ) which determined the claimant failed to overcome the impairment rating of the Division-sponsored independent medical examination (DIME) physician, and denied a claim for ongoing medical benefits after maximum medical improvement (MMI). We affirm.
The ALJ entered an order finding the claimant failed to overcome by clear and convincing evidence the DIME physician's refusal to rate alleged cervical impairment. The ALJ also found the evidence did not support an award of post-MMI medical benefits under Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).
The claimant filed a petition to review arguing the ALJ erred in finding the DIME physician's rating was not overcome, and arguing he is entitled to Grover medical benefits. The claimant did not file a brief setting forth any specific arguments in support of the petition to review. Further, the claimant failed to procure a transcript of the hearing. Thus, the effectiveness of our review is extremely limited.
The impairment rating of the DIME physician, including a finding of no impairment, is binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(c), C.R.S. 2002. The questions of whether the DIME physician properly applied the AMA Guides in arriving at the rating, and whether the rating itself has been overcome, are issues of fact for determination by the ALJ. McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo.App. 1999). Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review requires that we defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
We have reviewed the documentary evidence, including the DIME report. The DIME physician declined to rate cervical impairment because the claimant's diagnostic tests were normal, as was the examination. Thus, there is substantial evidence to support the determination that the claimant sustained no ratable cervical impairment, and we may not interfere with the ALJ's conclusion that other evidence was insufficient to overcome the DIME physician's finding. Cf. Wackenhut Corp. v. Industrial Claim Appeals Office, 17 P.3d 202 (Colo.App. 2000) (rating impairment requires assessment of data collected during clinical evaluation and comparison of those data to criteria in AMA Guides).
In order to award Grover medical benefits, the ALJ must find the record contains substantial evidence that future treatment will be reasonably necessary to relieve the effects of the injury or prevent deterioration of the claimant's condition. Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995). Because the issue is factual, we must uphold the ALJ's order if supported by substantial evidence. Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999).
Here, the ALJ was persuaded by the opinion of Dr. Silva that the claimant does not need any additional treatment. Although there was some evidence to the contrary, the ALJ did not find it persuasive. Thus, we must uphold the order.
IT IS THEREFORE ORDERED that the ALJ's order dated March 27, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________
David Cain
___________________________________
Kathy E. Dean
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. 2002. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed ______November 18, 2002_____ to the following parties:
Randy Santillanes, 6725 Pino Ave., N.E., Albuquerque, NM 87109
Mid County Plumbing Heating, Inc., P. O. Box 23186, Silverthorne, CO 80498-3186
Michael J. Steiner, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
Connie K. Hulst, Esq., 600 17th St., #1600N, Denver, CO 80202
By: A. Hurtado