Opinion
W.C. No. 4-803-708.
February 8, 2011.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) dated September 16, 2010, that determined that the opinions of the Division-sponsored independent medical examination (DIME) physician were incorrect. We affirm.
The claimant suffered an industrial injury on December 1, 2008. The primary authorized treating physician, Dr. Ogrodnick, determined the claimant suffered a five percent whole person impairment of his lumbar spine for a specific disease. However, Dr. Ogrodnick would not combine the specific disorder rating with a rating for loss of lumbar range of motion (ROM) because the claimant's objective findings were inconsistent with the measured range of motion. The claimant underwent a DIME on January 27, 2010. The DIME physician also determined five percent impairment due to specific disorder of the lumbar spine. The DIME physician invalidated all lumbar ROM measurements.
The claimant sought to overcome the DIME physician's opinions on permanent impairment. The ALJ concluded that the claimant had proven by clear and convincing evidence that the impairment determination made by the DIME physician was incorrect. The ALJ awarded the claimant eleven percent whole person impairment. The respondents bring this appeal.
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.; Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). "Clear and convincing evidence" is evidence which proves that it is "highly probable" the DIME physician's opinion is incorrect. Metro Moving Storage Co. v. Gussert, supra.
Consequently, the courts have held that the DIME physician's determination that an impairment is or is not caused by the industrial injury is also subject to the clear and convincing evidence standard. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002); Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590, 592 (Colo. App. 1998). 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 question whether the claimant has overcome the DIME by clear and convincing evidence is one of fact for the ALJ's determination. Metro Moving Storage Co. v. Gussert, supra. This is true despite the elevated standard of proof required to overcome a DIME: "[I]rrespective of whether the standard of proof at the administrative adjudicatory level of proceedings is clear and convincing, beyond a reasonable doubt, or merely a preponderance of the evidence, it is solely for the trier of fact to determine the persuasive effect of the evidence and whether the burden of proof has been satisfied." Id, 914 P.2d at 414. Therefore, the standard of review remains whether the ALJ's findings of fact are supported by substantial evidence in the record. Id; § 8-43-301(8), C.R.S. Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, supra. This standard of review is deferential and the scope of our review is "exceedingly narrow." Metro Moving Storage Co. v. Gussert, supra.
On appeal, the respondents contend that the ALJ erred in finding that the DIME physician's impairment rating had been overcome by clear and convincing evidence. The respondents offer three arguments.
I.
The respondents first argue that all evidence demonstrates that opinions of the DIME physician are supported rather than overcome. We disagree.
In finding that it was highly probable that the rating supplied by the DIME physician was incorrect the ALJ made extensive findings of fact. We set forth some of the findings as follows. The DIME physician clearly erred by refusing to provide lumbar extension impairment ratings after the straight leg raising (SLR) test invalidated flexion. The SLR test is merely used to invalidate forward flexion. The DIME physician still has the ability to determine that all ROM is inconsistent with clinical observations, but the DIME physician did not describe the claimant's inconsistency. Dr. Hall was persuasive that the measured ROM impairment for the claimant was slight and the observer would have a hard time seeing inconsistency with the naked eye. The record evidence demonstrated that it is highly probable that the DIME physician erred in recording sacral flexion of ROM. Dr. Ogrodnick and Dr. Hall recorded sacral flexion of 40-44 degrees, while the DIME physician initially recorded 10-15 degrees of sacral flexion. Dr. Hall was persuasive that such limited sacral flexion would greatly alter claimant's gait in a very noticeable fashion. Because the DIME physician recorded such low sacral flexion, it almost dictated that the claimant's SLR test would invalidate lumbar flexion. The abnormally low sacral flexion measures also make it highly probable that the DIME physician erred in finding the measures to be inconsistent with observations of the claimant. The DIME physician's sacral flexion measurements, if accurate, would mean that the claimant would be unable to walk or even sit. It would be easy to understand the DIME physician's rejecting any ROM impairment if he observed such inconsistencies, but it is much more likely that the DIME physician simply got the sacral ROM wrong. The DIME physician is not persuasive that the claimant's relatively slight range of motion loss is inconsistent with the MRI findings. The claimant was diagnosed with a lumbar strain, although Dr. Hall suggests that the claimant more likely had a SI joint strain. Dr. Hall is persuasive that the claimant suffered six percent impairment due to range of motion loss of lumbar flexion and extension. Consequently, the claimant suffered 11 percent whole person impairment.
The respondents, citing Solok v. WalMart Stores, Inc. W.C. NO. 4-743-263 (October 22, 2009), suggest that the claimant had an affirmative obligation to call as a witness or depose the DIME physician as a witness in order to overcome his opinions. We do not read Solok as supporting this proposition.
The respondents also argue that an abuse of discretion and lack of support for the ALJ's fact finding is found in the ALJ's peculiar comparison to observations of a claimant using a cane during examination and then skipping out of the examination without the cane. We note that in discussing inconsistent ROM in connection with clinical observations the ALJ mentioned that the classic example was a severely impaired patient with a cane who then is observed carrying the cane while he skips to the parking lot after examination. The ALJ then noted that here the DIME physician did not describe the claimant's clinical inconsistency. We do not read the ALJ's order, as suggested by the respondents, as setting a new standard of invalidating range of motion testing. Rather we understand the ALJ as using the cane description as an extreme example of ROM and clinical observations being inconsistent. Here the ALJ, in part of his analysis of testing the reliability of the opinions expressed by the DIME physician, noted that the DIME physician had not specifically set forth any observations of clinical inconsistency.
It is clear to us that the ALJ was persuaded that the DIME physician had erred in invalidating all lumbar ROM measurements in rating the claimant's physical impairment. In coming to that conclusion the ALJ also found that the DIME physician noted in "conclusory fashion" without explanation that the measured ROM was inconsistent with observed ROM. While it may be true, as argued by the respondents, that there is no requirement on the part of the DIME physician to provide greater detail for his refusal to rate the claimant's range of motion, in our view it can be considered by the ALJ in deciding whether the DIME physician's opinion has been overcome. The ALJ also found the opinion of Dr. Hall persuasive that the measured ROM impairment for the claimant is slight and the observer would have a hard time seeing inconsistency with the naked eye. The weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). Therefore, we are not persuaded that all evidence demonstrated that opinions of the DIME physician are supported rather than overcome. Rather, we are persuaded that there is substantial evidence in the record to support the ALJ's determination. We are bound by such determination. Section 8-43-301(8).
II.
The respondents next argue that the ALJ's findings are not supported as a matter of law as they are simply unsupported assumptions. The respondents argue that Dr. Hall simply assumed that there was an error in the report issued by the DIME physician. The respondents argue that the ALJ essentially adopted this position of assuming error when there was no support for the ALJ's fact finding. We again disagree.
As noted above, the ALJ was persuaded, at least in part, by the testimony of Dr. Hall. Dr. Hall concluded that the DIME was wrong in not giving an extension range of motion impairment. Exhibit E at 30 Hall Depo. at 13. Dr. Hall explained that it is part of the Division's training that you can have invalid lumbar flexion and still have valid lumber extension as part of the appropriate analysis under the AMA Guides. Hall Depo. at 12. We do not view Dr. Hall's testimony as simply assuming error on the part of the DIME physician. Rather, the evidence shows a sharp conflict in the opinions of medical experts on the issue of ROM in this case.
The weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). Therefore, we are not persuaded that the evidence compels the conclusion that Dr. Hall simply assumed error and that the ALJ simply adopted that assumption of error.
III.
In a similar argument the respondents next contend that the claimant's SLR test, forming the ALJ's unsupported assumption of error by the DIME physician, is a validity test designed to address the claimant's true abilities and does not directly address or relate to the DIME physician's decision to not rate the claimant's alleged lost range of motion. The respondents argue that the ALJ assumed the DIME physician committed error based on the SLR test.
We note that the ALJ found that on January 27, 2010 the DIME physician obtained lumbar ROM measurements, but the SLR test was invalid because the tightest SLR exceeded sacral ROM by more than 10 degrees. The DIME physician invalidated all lumbar ROM measurements instead of merely invalidating flexion due to the invalid SLR test. On March 19, 2010 the DIME physician performed repeat ROM testing and again found that the SLR was invalid. The DIME physician noted the following: "In reviewing the range of motion measurements they remain invalid. His SLR tests remain significantly greater than the sum of the sacral ROM when adding flexion and extension. Therefore, his lumbar flexion ROM remains invalid." The DIME physician noted that he would make no changes to his previous five percent rating.
The ALJ found that Dr. Hall had stated that the sacral ROM measured by the DIME physician was unusually small. Dr. Hall also noted that the DIME erred by excluding all lumbar ROM impairment due to the invalid SLR test. In contrast Dr. Hall determined six percent impairment due to loss of lumbar range of motion and combined the six percent ROM rating with the five percent specific disorder rating to arrive at a total 11 percent whole person rating. The ALJ found that Dr. Ogrodnick and Dr. Hall agreed that the claimant suffered a two percent impairment due to the DIME physician's measurement of reduced lumbar extension, even if the four percent lumbar flexion impairment was invalidated by the SLR test. Dr. Hall testified that the DIME physician's abnormally low sacral flexion measurement would mean that the claimant would have tiny, shuffling steps in his gait, and in contrast, the claimant had a normal gait at hearing. Moreover, other physicians and even the DIME physician did not mention in his reports that the claimant's gait was altered or unusual in any way. The SLR test is merely used to invalidate forward flexion. From these findings the ALJ concluded that the DIME physician clearly erred by refusing to provide lumbar extension impairment ratings after the SLR test invalidated flexion.
The respondents' arguments notwithstanding, there is substantial evidence in the testimony of Dr. Ogrodnick and Dr. Hall to support the ALJ's findings above and that the claimant had sustained his burden to prove by clear and convincing evidence that the impairment determination by the DIME was incorrect. Ogrodnick Depo. at 26-27, 35; Hall Depo. at 26-29, 62; Exhibit E at 29-30. Consequently, the existence of other evidence, that if credited might support a contrary determination, does not afford us grounds to grant appellate relief. See Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d 28 (1963).
IT IS THEREFORE ORDERED that the ALJ's order dated September 16, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________________ John D.Baird
_______________________________ Thomas Schrant
JESUS FLORES, COLORADO SPRINGS, CO, (Claimant).
SPACECON SPECIALTY CONTRACTORS, Attn: LORRAINE MAXWELL, C/O: LANCASTER, PA, (Employer).
RISK ENTERPRISE MANAGEMENT, Attn: PAM MORRISON, ENGLEWOOD, CO, (Insurer).
THE GARDNER LAW FIRM, PC, Attn: KIMBALL GARDNER, ESQ., COLORADO SPRINGS, CO, (For Claimant).
HALL EVANS, LLC, Attn: FRANK CAVANAUGH, ESQ., DENVER, CO, (For Respondents).