Opinion
W.C. No. 4-674-003.
July 21, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated February 1, 2011 to the extent the ALJ determined that the claimant failed to overcome the impairment rating of the Division-sponsored independent medical examination (DIME) physician. We affirm.
This matter proceeded to hearing to determine whether the claimant had overcome the opinions of the DIME physician, Dr. Jenks, regarding maximum medical improvement and the claimant's impairment rating. Also at issue were medical treatment and the statutory cap on disability payments.
According to the ALJ's findings of fact, the claimant sustained a compensable injury on August 19, 2005, when material on a pallet fell and struck the claimant on his head and left shoulder. The claimant underwent physical therapy and several surgeries. He was placed at maximum medical improvement as of May 5, 2009, and the respondent insurer filed a final admission of liability. The claimant requested a DIME, which Dr. Jenks performed. Dr. Jenks agreed that the claimant was at maximum medical improvement as of May 5, 2009 and awarded the claimant a 25% whole person impairment rating. Dr. Jenks' rating consisted of 19 percent for the claimant's cervical spine injury and a 14 percent upper extremity rating that converts to an eight percent whole person rating. Dr. Hall conducted an independent medical examination. He opined that the claimant had not attained maximum medical improvement. Dr. Hall also indicated that Dr. Jenks erred by not including a ten percent shoulder impairment based on a subacromial decompression/clavicular resection and determined that the claimant sustained a 30 percent whole person impairment. (In addition, Dr. Hall testified that Dr. Jenks' four percent rating for the claimant's cervical spine under Table 53 of the revised third edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides) may not be applicable depending on what film images of the area revealed. Hall Depo. at 30-31.) The ALJ determined that Dr. Hall's opinions did not constitute clear and convincing evidence that Dr. Jenks' determinations as to maximum medical improvement and permanent impairment were incorrect.
Section 8-42-107(8)(c), C.R.S. provides that the DIME physician's finding of medical impairment "shall be overcome only by clear and convincing evidence." The party challenging the DIME physician's impairment rating bears the burden of proof. "Clear and convincing" evidence has been defined as evidence which demonstrates that it is "highly probable" the DIME physician's opinion is incorrect. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo. App. 1998); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). The question of whether a party has overcome the DIME by clear and convincing evidence is one of fact for the ALJ's determination. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). The standard of review is whether the ALJ's findings of fact are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S; Metro Moving Storage Co. v. Gussert, supra.
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." Id Moreover, we may not substitute our judgment by reweighing the evidence to reach inferences different from those the ALJ drew from the evidence. See Sullivan v. Industrial Claim Appeals Office, 796 P.2d 31, 32-33 (Colo. App. 1990) (reviewing court is bound by resolution of conflicting evidence, regardless of the existence of evidence which may have supported a contrary result); Rockwell Int'l v. Turnbull, 802 P.2d 1182, 1183 (Colo. App. 1990) (ALJ, as fact-finder, is charged with resolving conflicts in expert testimony). Moreover, the ALJ may accept all, part, or none of the testimony of a medical expert. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968); see also Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo. App. 1992) (ALJ may credit one medical opinion to the exclusion of a contrary medical opinion).
The claimant recognizes our holdings that proof of a deviation from the AMA Guides constitutes evidence which the ALJ may consider in determining whether the challenge to the rating should be sustained. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003); Almanza v. Majestic Industries, W.C. No. 4-490-054 (Nov. 13, 2003); Smith v. Public Service Company of Colorado, W.C. No. 4-313-575 (May 20, 2002). However, the claimant argues that Dr. Jenks failed to conform to certain impairment rating tips published by the Division of Workers' Compensation. See, e.g., Division of Workers' Compensation, Impairment Rating Tips (updated February 2010 and January 2011). Specifically, the claimant argues that the rating tips required Dr. Jenks to either provide an additional rating for a subacromial decompression or explain why no such additional rating was provided. Although the ALJ did not accept the rating tips into evidence, he took administrative notice of them. Tr. at 7.
We are not persuaded that the ALJ erred by not overturning Dr. Jenks' rating based on Dr. Hall's opinions. A DIME physician is required to apply the provisions of the AMA Guides. Section 8-42-101(3.7), C.R.S. The impairment ratings tips are not part of those guides, as recognized by Dr. Hall in his testimony. Hall Depo. at 24. Although the impairment rating tips may be relevant to the impairment rating under consideration by the ALJ, a physician's application of those tips goes to the weight the ALJ gives to an impairment rating. See Ortiz v. Service Experts, Inc., W.C. No. 4-657-974 (January 22, 2009) (ALJ credited impairment rating of physician applying impairment rating tips). Here, the ALJ declined to credit Dr. Hall's interpretation of the impairment rating tips.
Contrary to the claimant's assertions, it is not apparent that Dr. Jenks outright failed to correctly apply the impairment ratings tips. Dr. Hall was of the opinion that Dr. Jenks erred by not including a subacromial decompression/clavicular resection for a ten percent shoulder impairment. He further opined that Dr. Jenks either should have included an additional shoulder impairment rating or explained why he declined to do so. Hall Depo. at 11, 16. However, the impairment rating tips at issue are subject to interpretation. For instance, the tips comment that a person who has undergone an invasive procedure which has permanently changed a body part has suffered a derangement, which can constitute an impairment. The impairment rating tips go on to state as follows:
Therefore it is incumbent on the rating physician to perform the necessary testing as appropriate in the [AMA] Guides for the condition which was treated by the invasive procedure. This should not be interpreted to say that all persons with invasive procedures necessarily qualify for an impairment rating. The impairment rating on many individuals who have had invasive procedures may be zero percent. Thus, in cases with surgical procedures, an individual qualifies under the initial definition of impairment due to the derangement of a body part or system. If the rating physician provides a zero percent rating, this must be justified using the appropriate portions of the AMA Guides. . . .
Impairment Rating Tips at 1.
Based on this general discussion of ratings, Dr. Hall opined that an explanation for not including an additional shoulder rating is required. Hall Depo. at 28. Dr. Hall also opined that the claimant should receive a ten percent impairment for his upper extremity based on having a distal clavicular resection as provided for in the impairment rating tips. Hall Depo. at 15-16. In that regard, the impairment rating tips state that "[i]f providing a rating for a distal clavicular resection, the upper extremity value is 10%." Impairment Rating Tips at 5. Dr. Hall stated that he would not have a problem with a lesser impairment rating for the resection provided the rating physician explained why ten percent was not given. Hall Depo. at 16. Thus, Dr. Hall interpreted this tip to allow for less than a ten percent impairment rating. Indeed, the language "if providing a rating" indicates that a rating for a distal clavicular resection is not mandated.
As noted above, the DIME physician's application of the impairment rating tips goes to the weight of his opinions, which is up to the ALJ to decide. Although no explanation was given for Dr. Jenks' failure to make the additional rating for the upper extremity, the rating tips do not state that an explanation is required, but that the zero rating must be justified using the appropriate portions of the AMA Guides. The record indicates that Dr. Jenks did use the AMA Guides to rate the claimant's impairment, and the ALJ viewed the issue as a difference of opinion. Since we may not reweigh the factual record and draw inferences different from those of the ALJ, we find no basis for disturbing the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order dated February 1, 2011 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Dona Rhodes
JOSEPH DAVIS, DRIVE, FRISCO, TX, (Claimant).
LIBERTY MUTUAL, Attn: BRENT HERRIN, IRVING, TX, (Insurer).
CLAWSON CLAWSON, LLP, Attn: MICHAEL CLAWSON, ESQ., COLORADO SPRINGS, CO, (For Claimant).
LAW OFFICES OF RICHARD P. MYERS, Attn: MAUREEN A. HARRINGTON, ESQ., DENVER, CO, (For Respondents).