Opinion
W.C. No. 4-533-704.
November 22, 2005.
FINAL ORDER
The claimant seeks review of an order dated June 9, 2005 of Administrative Law Judge Stuber (ALJ) that determined permanent partial disability (PPD) and apportionment. The claimant contends that the ALJ's order should have included a scheduled impairment and that the opinion of the Division-sponsored independent medical examination (DIME) physician was in error on the issue of invalid range of motion tests. We affirm.
The claimant suffered a compensable injury to her back and left shoulder on December 28, 2001. The authorized treating physician (ATP) determined that the claimant was at maximum medical improvement (MMI), that she had 13 percent whole person impairment attributable to her back and no impairment of the left shoulder due to the compensable injury. The claimant had a prior back injury in 1996. After reviewing medical records of the claimant from the 1996 injury the ATP determined that any permanent impairment of the lumbar spine was completely apportionable to the 1996 injury. The ATP found that the claimant suffered no permanent impairment from the December 28, 2001 injury. The respondent filed a final admission of liability (FAL) based on the ATP's opinion.
The claimant objected to the FAL and requested a DIME. The DIME physician determined that the claimant suffered 23 percent whole person impairment due to the low back injury and apportioned the ATP's 13 percent lumbar spine rating for the 1996 injury and determined that claimant suffered a 10 percent whole person impairment due to the December 28, 2001 accident. The DIME physician found the claimant had 7 percent impairment of the upper extremity due to loss of range of motion of the left shoulder.
The respondent arranged for an independent medical examination (IME). The IME performed lumbar range of motion measurements but concluded the measurements were invalid due to the claimant's failure to meet the validity criteria. The IME concluded that the claimant suffered 7 percent whole person impairment due to a specific disorder of the lumbar spine.
The DIME physician's deposition was taken and he acknowledged that claimant had failed to meet the validity criteria for range of motion measurements. Based upon this error, he reduced the impairment rating. The DIME physician determined that the claimant sustained 15 percent whole person impairment and apportioned 13 percent of this lumbar spine impairment to the 1996 injury, resulting in 2 percent whole person impairment due to the December 28, 2001 accident.
The claimant, at the direction of her attorney, had additional range of motion measurements done and these were reported as valid. At a second deposition the DIME physician, after reviewing the new range of motion measurements, initially agreed that they would increase the impairment rating but then changed his opinion and rejected the repeat range of motion measurements.
Based on these findings the ALJ determined that the DIME physician offered several opinions of impairment but ultimately determined that the claimant suffered only 2 percent impairment due to the December 28, 2001 accident, and that no clear and convincing evidence demonstrated that the determinations of the DIME were incorrect.
The claimant first contends that the scheduled 7 percent upper extremity impairment should have been included in the ALJ's award, and added to the whole person impairment. The ALJ noted in his order that the parties did not agree on an upper extremity impairment and did not try the issue of whether it should be scheduled or whole person. The ALJ stated that the only issue determined by his order was the impairment due to the lumbar spine injury and that all matters not determined by the order were reserved for future determination.
No transcript of the scheduled May 10, 2005 hearing is in the record. The ALJ noted in his order that in lieu of an evidentiary hearing, the parties filed a set of stipulated exhibits as well as the transcripts of the DIME physician's depositions and position statements. The claimant in her position statement said, "The sole dispute between the parties is the proper component part of the impairment rating due the claimant as a result of her loss of lumbar flexion range of motion." The claimant did not testify regarding the situs of her injury and the depositions of the DIME physician reveal no effort to try this issue. Under these circumstances, we cannot say that the ALJ erred in inferring that the only issue for determination was the degree of impairment of the claimant's back. Wilson v. Industrial Claim Appeals Office 81 P.3d 1117 (Colo.App. 2003); Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).
The claimant next contends that the ALJ erred in determining, after apportionment, that the claimant was only entitled to a 2 percent whole person impairment for her back injury. The claimant argues that a copy of a portion of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides) attached to her brief makes it clear that the DIME physician was mistaken in his belief on the issue of invalid range of motion tests. However, this exhibit was not part of the record before the ALJ, and cannot be considered for the first time on appeal. See Frisby v. Anheuser Busch Companies, W.C. No. 4-401-701 (July 27, 2001) (portions of the AMA Guides attached to the briefs will not be considered).
On review the claimant also contends the DIME physician deviated from the rating protocols required by the AMA Guides, in mistakenly believing that they required him to exclude the loss of range of motion where there had been two invalid results. The claimant argues that the DIME physician should have considered a third, valid range of motion test. We reject the claimant's argument.
The medical impairment rating of the DIME physician is binding on the parties and the ALJ unless overcome by clear and convincing evidence. § 8-42-107(8)(c), C.R.S. 2005. Clear and convincing evidence is evidence demonstrating that it is "highly probable" that the DIME physician's rating is incorrect. American Compensation Insurance Co. v. McBride, 107 P.3d 973, 980 (Colo.App. 2004). Such evidence must be unmistakable and free from serious or substantial doubt. Leming v. Industrial Claim Appeals Office, 62 P.3d 1150 (Colo.App. 2002).
The Workers' Compensation Act requires that the DIME physician's impairment rating be conducted in accordance with the AMA Guides. § 8-42-101(3.7). C.R.S. 2005. The ALJ may consider a technical deviation from the AMA Guides in determining the weight to be given the DIME physician's findings but such deviation does not compel automatic rejection of the DIME opinion. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003); Metro Moving Storage Co. v. Gussert, supra.
The question of whether the DIME 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). Because these issues are factual in nature, we must uphold the ALJ's resolution if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2005. 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).
Applying these principles here, we perceive no error in the ALJ's order. The DIME physician noted several invalid lumbar flexion measurements taken of the claimant and therefore excluded lumbar flexion in his impairment rating. The IME found the claimant was unable to meet validity criteria and so did not include any impairment attributable to lumbar flexion in the rating. The medical evidence therefore supports the ALJ's determination that merely because the claimant ultimately had a valid range of motion test does not invalidate the opinions of the IME.
The fact that Dr. Schutt included loss of lumbar flexion in his rating and the DIME physician used Dr. Shutt's entire rating to apportion 13 percent to the 1996 did not convince the ALJ that the DIME physician's rating was clearly wrong. Section 8-42-104(2) C.R.S. 2005 provides that where medical records substantiate a preexisting impairment, apportionment shall be made by subtracting from the injured worker's impairment the preexisting impairment. That is what the DIME physician did in the present case, which procedure was approved by the ALJ. We perceive no error in the ALJ's determination.
IT IS THEREFORE ORDERED that the ALJ's order dated June 9, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL _____________________ Curt Kriksciun _____________________ Tom Schrant Henrietta Garcia, Colorado Springs, CO, Safeway, Inc., c/o Safeway, Inc. Employee Service, Colorado Springs, CO, Safeway, Inc., Englewood, CO, Debbie Dunst, Safeway, Inc., Denver, CO, DIME Unit, Division of Workers' Compensation — Interagency Mail, W. Thomas Beltz, Esq., Colorado Springs, CO, (For Claimant).Shane A. Wetmore, Esq., Greenwood Village, CO, (For Respondent).