Opinion
W.C. No. 4-702-777.
April 29, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) dated December 29, 2008, that determined the claimant had failed to overcome the opinions of the DIME physician. We affirm.
This matter has been before us previously. In an order dated July 30, 2008, the ALJ determined that the claimant had failed to overcome the opinion of the physician who conducted a Division-sponsored independent medical examination (DIME). The DIME physician had placed the claimant at maximum medical improvement and assigned the claimant a five percent whole person impairment rating for a sacral coccygeal fracture. On review, we remanded the matter back to the ALJ to reconsider the evidence concerning the claimant's attempt to overcome the DIME physician's decision to decline to rate the lumbar spine. On remand, the ALJ determined that the claimant had failed to overcome the opinion of the DIME physician that the claimant's present back condition was not causally related to the admitted injury.
We note preliminarily that it is well established that the DIME physician's medical impairment rating is binding unless overcome by "clear and convincing evidence." Section 8-42-107(8)(c), C.R.S. 2008; 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 (Colo.App. 1998).
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, 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. 2008. 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.
On appeal, the claimant argues that the ALJ failed to evaluate whether the claimant suffered any functional impairment to the lumbar spine as a consequence of the admitted industrial injury contrary to the ruling in Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996). The claimant requests that the matter be remanded to the ALJ for additional findings of fact concerning the issue of whether the claimant suffered functional impairment affecting her lumbar spine. We are not persuaded that the ALJ erred.
The claimant argues that the DIME physician in her initial report opined that the low back, hip and right leg complaints were related to the sacrococcygeal fracture. Exhibit 17. However, the ALJ found with record support that the DIME physician in her follow-up examination opined that she did not believe there had been a lumbar spine injury. Exhibit 16 at 4. The weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, supra. To the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). In our opinion there is substantial evidence supporting the ALJ's determination of what was the DIME physician's opinion.
The claimant argues that even if she did not suffer a direct injury to her lumbar spine as a result of the admitted industrial injury, she did suffer functional impairment that affected areas beyond the immediate area of the sacrococcygeal fracture. However, the ALJ found, again with record support, that the DIME physician, after reviewing the Level II accreditation guidelines, contacted the Division of Workers' Compensation (DOWC) to confirm that a lumbar spine range of motion is not measured for injury to the pelvis region. The ALJ found that the Medical Treatment Guidelines place an impairment rating for the pelvis in a separate category from the lumbar spine and do not address range of motion for the lumbar region. The ALJ found that the DIME physician's opinion was that the claimant's back problems are not ratable. The claimant does not challenge these findings of fact. Rather, the claimant argues that the advice the DIME physician received and relied on to formulate her impairment rating that excluded loss of range of motion in the lumbar spine was in error. The claimant argues that contrary to the advice the DIME physician received the ruling in Strauch should control the analysis of impairment.
In Strauch v. PSL Swedish Healthcare System the court held that the determination of the situs of any functional impairment due to an injury may be distinct from the situs of the initial harm. As an example an injury to the shoulder may only impair use of the arm and thus become an injury for which benefits under the schedule are provided. In Strauch the court further concluded that while the rating system for physical impairment under the AMA Guides may be considered in resolving the location of the permanent impairment, the AMA Guides are not determinative. See Morris v. Industrial Claim Appeals Office 942 P.2d 1343 (Colo.App. 1997).
We do not read the claimant's brief as contending that the DIME physician erred in her use of the AMA Guides. However, to the extent that the claimant is alleging such error, questions whether the DIME physician properly applied the AMA Guides in arriving at the rating, and ultimately whether the party challenging the rating has overcome it by sufficient evidence are issues of fact for the ALJ. McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo.App. 1999). Here, the ALJ clearly found that the DIME physician's opinions were credible and noted with approval the DIME physician's contact of the DOWC on the issue of rating relationship between the back and the pelvis.
Specifically on the Strauch issue of the situs of any functional impairment due to an injury, we are not persuaded that a remand to the ALJ for a determination of whether the claimant suffered a functional impairment affecting her lumbar spine, is necessary. Here the ALJ, relying on the opinions of the DIME physician, found that the claimant's back problems were not causally related to the admitted compensable injury. In our opinion, this determination by the ALJ sufficiently resolves the issue of whether the claimant's loss of range of motion in the lumbar spine and reported low back pain can be related as a functional impairment due to the injury. In our view, the ALJ clearly decided that not only was the initial situs of the harm not to the lumbar spine, but also any functional impairment to the lumbar spine was not related to the compensable injury. Therefore, we perceive no error in the ALJ's order relating to a Strauch analysis of impairment.
IT IS THEREFORE ORDERED that the ALJ's order issued December 29, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
ANGELINA BROUGHTON, DENVER, CO, (Claimant).
KAISER FOUNDATION HEALTH PLAN, Attn: ARNE HARAM, DENVER, CO, (Employer). SHAWN LANGLEY PC, Attn: SHAWN LANGLEY, ESQ., GREELEY, CO, (For Claimant).
SENTER, GOLDFARB RICE RICE LLC, Attn: SEAN ELLIOTT, ESQ./WILLIAM STERCK, ESQ., DENVER, CO, (For Respondents).
SEDGWICK CMS, Attn: MICHELLE TRESSLER, GREENWOOD VILLAGE, CO, (Other Party).