Opinion
W.C. No. 4-399-115
April 30, 2002
FINAL ORDER
The claimant and the respondent separately petitioned for review of an order of Administrative Law Judge Harr (ALJ) which awarded permanent partial disability benefits based on 16 percent whole person impairment. We affirm.
The claimant was employed as a ramp serviceman. The claimant suffered nonoccupational cervical injuries in 1975 and 1996. As a result, the claimant underwent two multiple level fusion surgeries. At the claimant's request, Dr. Pitzer released the claimant to regular employment November 11, 1997. Thereafter, the claimant obtained new employment as a forklift operator. In March 1998, the claimant returned to Dr. Pitzer with complaints of muscle cramping and pain in his neck and right shoulder related to his employment. Dr. Pitzer restricted the claimant to light work until April 13, 1998, when he released the claimant to return to work as a ramp serviceman
On September 25, 1998, the claimant suffered a compensable aggravation of his pre-existing condition when he lifted a luggage bag that was heavier than it appeared. On September 30, 1998, Dr. Brady diagnosed neck and back strains and restricted the claimant from lifting.
In June 2000, Dr. Pitzer placed the claimant at maximum medical improvement with 32 percent whole person impairment based on the multiple level cervical fusions and impaired range of motion to the cervical spine. However, Dr. Pitzer opined the claimant had 34 percent impairment immediately preceding the industrial injury. Therefore, Dr. Pitzer opined the claimant sustained no impairment from the industrial injury.
On August 10, 2000, the respondent filed a Final Admission of Liability which denied liability for permanent medical impairment benefits. The claimant objected and requested a Division-sponsored independent medical examination (DIME). The DIME physician, Dr. Walker, assigned 20 percent impairment for range of motion deficits to the cervical spine, and 11 percent for impaired range of motion to the lumbar spine for a total of 31 percent whole person impairment. However, Dr. Walker opined the range of motion impairment pre- dated the industrial injury. Applying Table 53II(B) of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised, Dr. Walker also assigned 4 percent impairment for a specific disorder of the cervical spine and 5 percent for a specific disorder of the lumbar spine which equals 9 percent whole person impairment.
The ALJ found the claimant's range of motion impairment to the cervical spine pre- dated the industrial injury and constituted a previous disability. Therefore, the ALJ rejected the claimant's contention that Dr. Walker erroneously apportioned the claimant's cervical range of motion impairment.
The ALJ also found the respondent failed to overcome the DIME physician's rating for specific disorders of the cervical and lumbar spines. However, the ALJ determined the claimant overcame Dr. Walker's failure to include a rating for impaired range of motion to the lumbar spine. Relying on Dr. Pitzer's testimony, the ALJ found the claimant suffered 7 percent impairment for lumbar range of motion deficits. Adding Dr. Walker's 5 percent rating for a specific disorder of the lumbar spine, the ALJ found the claimant suffered a total of 12 percent whole person impairment to the lumbar spine. Combining the 12 percent lumbar spine rating with Dr. Walker's 4 percent rating for impairment to the cervical spine, the ALJ ordered the respondent to pay benefits based on 16 percent whole person impairment.
I.
On review, the respondent contends the ALJ erroneously found the claimant timely objected to the Final Admission of Liability. Therefore, the respondent argues the ALJ erroneously determined the issue of permanent disability was properly before him for adjudication. We perceive no reversible error.
Initially, we note that the respondent's Designation of Record includes the "file of the Division of Workers' Compensation." The record transmitted to us on appeal apparently does not include the Division of Workers' Compensation file. However, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the respondent requested the ALJ to consider the Division of Workers' Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(6), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers' Compensation file, but restricted our review to the record made at the hearing.
Former section 8-43-203(2)(b)(II), C.R.S. 2000 [amended 2001 Colo. Sess. Laws, ch. 23 at 49 for final admissions filed after March 11, 2001] provides that the claimant's failure to object to a final admission within 30 days after the date of the final admission automatically closes all issues admitted in the final admission.
Here, the Final Admission of Liability contains a certificate of mailing dated August 10, 2000. Accordingly, the respondent argues the claimant's objection was due no later than September 9, 2000. However, the claimant submitted an envelope (Claimant's exhibit 14) from the respondent's "Claims Services" department with a post mark of August 14, 2000. The record also contains an envelope addressed to the claimant's attorney with a postmark of August 14, 2000. Although there was no testimony concerning the contents of exhibit 14, [ see Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987) (statements made by counsel may not substitute for evidence which is not in the record)], there was no evidence the respondent sent the claimant any document aside from the Final Admission in August 2000. Under these circumstances, the ALJ reasonably inferred that exhibit 14 was the envelope used to mail the claimant's copy of the Final Admission. Moreover, the ALJ's inference supports his determination the Final Admission was actually mailed on August 14 and, thus, the claimant's September 13 objection was timely filed.
II.
Next, the respondent contends the ALJ erred in failing to find the respondent overcame the DIME physician's rating for a specific disorder of the lumbar spine impairment. The respondent contends the record is legally insufficient to support Dr. Walker's finding of a causal connection between the industrial injury and the claimant's lumbar impairment. The respondent also contends there is no evidence the claimant met the criteria for a lumbar spine impairment rating under Table 53II(B) of the American Medical Association Guide to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides).
It is well established that a DIME physician's medical impairment rating is binding unless overcome by "clear and convincing evidence." Section 8-42-107(8)(c), C.R.S. 2001 ; Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Furthermore, the court has held that the DIME physician's determination of the "cause" of the claimant's impairment is an inherent element of the DIME physician's rating. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998). Thus, the DIME physician's opinion on the cause of the claimant's impairment must be overcome by clear and convincing evidence. See Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000).
"Clear and convincing evidence" is evidence which establishes that it is "highly probable" the DIME physician's rating is incorrect. See Postelwait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995). The question of whether the DIME physician's rating has been overcome by "clear and convincing" evidence is one of fact for determination by the ALJ. Metro Moving Storage Co. v. Gussert, supra. Accordingly, we must hold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. This standard requires us to 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. We also note that once the DIME procedure is used to determine medical impairment an ALJ is not required to give special weight to the opinions of any physician other than the DIME physician and where medical evidence subject to conflicting inferences it is the ALJ's sole prerogative to resolve the conflict. Metro Moving Storage Co. v. Gussert, supra; Postelwait v. Midwest Barricade, supra.
Dr. Walker's report indicates that at the time of the DIME the claimant complained of pain in his shoulders, mid back and lower back, elbows, fingers, feet and thighs. With regard to the claimant's low back pain, Dr. Walker diagnosed lumbar spondylosis related to the industrial injury and assigned a 5 percent rating for an unoperated disc lesion with at least 6 months rigidity.
The ALJ found Dr. Walker's rating was supported by Dr. Brady's September 1998 diagnosis of a back strain. The rating is also supported by the claimant's testimony. (Conclusions of law B, page 9). The claimant denied lumbar pain prior to the industrial injury. (Tr. p. 66). He stated that after the injury he reported low back pain to Dr. Brady and was treated for lumbar pain. (Tr. p. 68).
Although Dr. Pitzer disagreed with Dr. Walker's opinion on the cause of the claimant's low back pain, the ALJ found the conflict between Dr. Pitzer and Dr. Walker represented a "difference of professional opinion with Dr. Walker" that did not rise to "clear and convincing" evidence that Dr. Pitzer's rating was incorrect.
Because the ALJ's findings are supported by substantial evidence and plausible inferences drawn from the record, we are bound by the findings on review. See Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941) (ALJ considered to possess expert knowledge which renders him competent to evaluate medical evidence and draw plausible inferences from it). Further, we may not reweigh the evidence on review or interfere with the ALJ's assessment of the probative weight and sufficiency of the various medical opinions. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Therefore, we may not disturb the ALJ's determination the respondent failed to overcome Dr. Walker's 5 percent whole person rating for a specific disorder of the lumbar spine. Metro Moving Storage Co. v. Gussert, supra.
III.
The respondent also contends the ALJ erroneously awarded benefits based on Dr. Walker's 4 percent rating for a non-operated cervical disc lesion under Table 53II(B) of the AMA Guides. The respondent contends the claimant's diagnosis of a "cervical sprain" does not support a rating under Table 53II(B). The respondent also argues that Dr. Walker's rating fails to consider the claimant's pre-existing impairment from the previous cervical fusions. In support, the respondent points to the claimant's stipulation that all his cervical spine impairment rating is attributable to the prior injuries.
The claimant admitted that Dr. Pitzer's 34 percent rating for the multiple level cervical fusions and range of motion impairment to the cervical spine was "wholly attributable to the cervical fusions." He also conceded that Dr. Pitzer's 32 percent rating for the same conditions after the industrial injury resulted in a zero rating of cervical spine impairment from the industrial injury. However, Dr. Walker's 4 percent rating was based on a nonoperated, cervical strain not the spinal fusion surgeries or impaired range of motion. Thus, the claimant's stipulation does not address the pertinent issue.
Furthermore, the parties did not submit the relevant portions of Table 53II(B) into the record. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995) (AMA Guides not submitted to ALJ will not be considered on appeal). Therefore, we cannot say the ALJ was compelled to find Dr. Pitzer's testimony "clear and convincing" evidence Dr. Walker misapplied Table 53II(B) by including a 4 percent rating for the cervical strain.
IV.
Finally, the claimant contends the ALJ erroneously substituted his judgment for that of Dr. Pitzer in apportioning the DIME physician's rating for cervical range of motion impairment. In support, the claimant relies on evidence Dr. Pitzer released him to regular employment in April 1998 and he performed his regular employment which required heavy lifting for several months prior to the industrial injury.
Former § 8-42-104(2), C.R.S. 1999 [amended 2000 Colo. Sess. Laws, ch. 141, at 410 effective for injuries on or after July 1, 1999], allows an ALJ to apportion permanent partial disability benefits where the claimant has suffered a "previous disability," and sustains additional disability from a subsequent injury. In Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996), the Supreme Court held that when apportioning permanent partial disability benefits, "medical impairment" cannot be equated to "disability." Relying on the AMA Guides the Askew court concluded that "impairment" relates to an alteration of an individual's health status as assessed by medical means, while "disability" pertains to a person's ability to meet "personal, social or occupational demands," and is assessed by non-medical means. The court held that apportionment of medical impairment under § 8-42-104(2) is only appropriate if the preexisting condition constitutes a "disability."
Unlike the DIME's determination of the cause of the claimant's impairment, the question of whether the claimant's medical impairment is subject to apportionment is a question of fact or the ALJ which is governed by the preponderance of evidence standard. We must uphold the ALJ's determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. Absolute Employment Services, Inc. v. Industrial Claim Appeals Office, 997 P.2d 1229 (Colo.App. 1999).
Although the claimant denied any physical limitations during the months immediately preceding the industrial injury, the ALJ expressly rejected this testimony. See Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970) (ALJ not required to credit claimant's testimony); El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993) (ALJ may credit all, part or none of witness' testimony). In contrast, Dr. Pitzer testified that multiple level cervical fusion surgery can cause a significant loss of range of motion and that he observed the claimant's loss of range of motion during his treatment of the 1996 injury. (Tr. p. 30). Although Dr. Pitzer released the claimant to regular employment in April 1998, he stated that it very unusual for a patient with multiple fusions to return to heavy work and it is possible the April 1998 release to regular employment may have been unwise. (Tr. p. 63). Dr. Pitzer's testimony is supported by Dr. Lamont's May 23, 1999 report where he opined it was unlikely the claimant "will ever return to his original work activity." Furthermore, there is substantial evidence of the claimant's physical regression when he was released to regular employment work restrictions between November 1997 and April 1998. Under these circumstances, the ALJ could and did, reasonably infer that the claimant's impaired range of motion from the multiple level fusion surgeries interfered with his ability to meet his occupational demands immediately preceding the industrial injury, and thus, was a "previous-disability" for purposes of apportionment under § 8-42-104(2).
To the extent the parties have other arguments, they have been considered and are not persuasive.
IT IS THEREFORE ORDERED that the ALJ's order dated August 14, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
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 to the following parties:
Darrell Scott, 2631 Kearney St., Denver, CO 80207
United Airlines, DIA, 8400 Pena Blvd., Denver, CO 80249-6357
RSKCO, P.O. Box 5307, Denver, CO 80217-5307
Terry Thornburg, Gallagher Bassett, P. O. Box 4068, Englewood, CO 80155-4068
Thomas J. Roberts, Esq., 940 Wadsworth Blvd., 4th floor, Lakewood, CO 80215 (For Claimant)
Lynn P. Lyon, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondent)
By: A. Hurtado