Opinion
W.C. No. 4-644-099.
July 23, 2008.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Jones (ALJ) dated March 17, 2008, that determined the claimant had overcome the Division Independent Medical Examination (DIME) physician's opinion by clear and convincing evidence. We affirm.
The only issue for hearing was whether the claimant overcame the opinion of the DIME physician by clear and convincing evidence. The ALJ's pertinent findings of facts are as follows. The claimant sustained a compensable injury on October 22, 2004, and the authorized treating physician (ATP) opined that the claimant had a 29 percent whole person rating. The DIME physician opined that the claimant had a 20 percent whole person rating. The areas of disagreement between the ATP and the DIME doctor were whether the compensable injury resulted in both motor and sensory losses in the lower extremities and the range of motion apportioned to the claimant's prior diskectomy.
The ALJ concluded that the claimant had established by clear and convincing evidence that he sustained both motor and sensory damage to two levels of his spine. The ALJ further concluded that the claimant had established by clear and convincing evidence that there was no measurable loss of range of motion at the time of the compensable injury and therefore apportionment of this part of the impairment rating by the DIME physician was not appropriate. The ALJ found the opinion of the ATP to be credible in part because he evaluated the claimant on 20 occasions and personally performed electrodiagnostic testing and found the claimant to have nerve damage to the root or fibers at two levels of his spine. The ALJ found the claimant's compensable injury affected both the motor and sensory function, and the ATP's opinion had overcome the DIME physician's opinion by clear and convincing evidence. The ALJ awarded the claimant the 29 percent whole person impairment rating provided by the ATP.
I.
The respondents on appeal first contend that the evidence presented by the claimant did not support a high probability that the DIME was incorrect. We are not persuaded that the ALJ committed reversible error.
Section 8-42-107(8)(c), C.R.S. 2007, provides that the DIME physician's finding of maximum medical improvement and medical impairment is binding unless overcome by clear and convincing evidence. "Clear and convincing evidence" is defined as evidence which is stronger than a preponderance, is unmistakable and is free from serious or substantial doubt. DiLeo v. Koltnow, 200 Colo. 119, 613 P. 2d 318 (1980). In other words, in order to overcome the DIME report, there must be evidence which proves that it is highly probable that the DIME physician's opinions are incorrect. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The question whether the party challenging the DIME physician's determination of maximum medical improvement has overcome the report by clear and convincing evidence is generally one of fact for determination by the ALJ. McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo.App. 1999); Metro Moving and Storage Co. v. Gussert, supra. Consequently, we must uphold the ALJ's resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007. The substantial evidence test requires us to view the evidence in a light most favorable to the prevailing party, and to defer to the ALJ's resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record. Metro Moving and Storage Co. v. Gussert, supra. Resolving conflicting inferences, which could be drawn from the DIME physician's rating, is solely in the ALJ's discretion. Metro Moving Storage Co. v. Gussert, supra. This standard of review is deferential and the scope of our review in this regard is "exceedingly narrow." Metro Moving Storage Co. v. Gussert, supra.
Under this standard of review, it is also the ALJ's sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. We may not substitute our judgment for that of the ALJ regarding credibility matters unless there is such hard, certain evidence contradicting the ALJ's determination that it would be error as a matter of law. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
Here, the ATP and DIME physician both found that the claimant had a 12 percent rating for specific disorders, under table 53 of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides). The ATP and the DIME physician both reduced the rating by ten percent because of the claimant's previous diskectomy. However, the ATP and DIME physician differed on whether to make an additional reduction to the rating because of the claimant's previous condition. The ATP made no deduction for loss of range of motion because there was no known lumbar range of motion impairment of his premorbid condition. The DIME physician accepted the ATP's range of motion measurement but apportioned part of the current range of motion deficit to pre-existing condition.
The ATP and DIME physician also disagreed on whether the compensable injury resulted in both motor and sensory losses in the lower extremities. The ATP opined that the claimant had bilateral L5-S1 radiculopathy with both right and left lower extremity loss of sensory and motor function, resulting in an eight percent whole person rating for each lower extremity. The DIME physician opined that the claimant had lower extremity sensory loss only for the S1 level, resulting in a one percent whole person rating for each lower extremity. The ATP personally performed the electrodiagnostic testing.
The ALJ found, with record support, that the ATP opined that the claimant's range of motion was normal at the time of the injury because the claimant was then involved in heavy lifting while performing his job with the employer. Exhibit 3 at 10. The claimant was lifting 200 pounds on the day of the injury. Tr. 36. The ATP assumed the claimant had no lifting restrictions whatsoever from his previous surgery when he was released and the claimant's function was essentially normal. Exhibit 3 at 10. The claimant had, for approximately six months preceding the work injury, been functioning at a high level, including lifting 200 pounds. Tr. 36-37
The prior back injury had occurred approximately one year before this compensable injury. Exhibit B at 2. The claimant had returned to work performing employment activities without limitation. Tr. 36. The claimant had not seen a physician for low back problems in the five months before the compensable injury. Tr. 36. The claimant had reported, at the last time he had seen his surgeon for the prior injury, that his back felt normal. Tr. 36. The DIME physician conceded in his deposition testimony that the claimant's loss of range of motion was "medically probable speculation". Goldman Depo Tr. at 36. In our opinion, there was substantial evidence to support the ALJ's conclusion that the claimant had overcome by clear and convincing evidence the loss of range of motion deduction provided by the DIME.
The respondents further argue that the ATP admitted explicitly that the DIME physician's rating was a mere difference of opinion and that a mere difference of opinion is insufficient to overcome a DIME.
The ATP did state that there appeared to be a difference of opinion regarding the impairment rating. Exhibit B at 2; Tr. at 26. However, the ALJ was not bound by the characterization of the issue by the ATP as a mere difference of opinion. The ALJ did not find that any difference in impairment ratings represented mere reasonable differences insufficient to support a finding that the DIME physician's rating was overcome. See Villalobos-Chaparro v. Benny's Concrete, W. C. No. 4-356-868 (January 04, 2001). Rather the ALJ determined that the impairment rating rendered by the DIME physician was most probably incorrect. Although there was conflicting evidence, in our opinion, there was substantial evidence to support this determination. It therefore must be upheld on review. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002).
The respondents also argue that "[t]he DIME physician showed why Dr. Gerber's impairment rating was incorrect." Respondent's Brief in Support of Petition to Review at 12 (unpaginated). The respondents then point out the testimony and other evidence from the DIME doctor supporting inferences contrary to those reached by the ALJ. It is certainly true that the record contains such evidence, and that it would support a different result. However, in our view the respondents' argument is one urging us to reweigh the competing evidence. We have no authority to do so, and the existence of evidence in the record from which the ALJ could have drawn contrary inferences does not provide a basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
In connection with their argument that the DIME physician's opinions were more persuasive than those of the treating physician, the respondents further note that the DIME physician testified that the ATP's opinion was incorrect because he failed to use the apportionment worksheet from the Division of Workers' Compensation.
The ALJ found that the ATP did not apportion the range of motion to the claimant's previous diskectomy. In contrast, the DIME apportioned three percent whole person impairment based on worksheets provided as a part of the Division of Workers' Compensation rating criteria. Exhibit B at 16. The respondents argue that the court in Martinez v. Industrial Claim Appeals Office 176 P.3d 826 (Colo.App. 2007) noted the worksheets were promulgated by the Division of Worker's Compensation and were designed to guide the apportionment of spinal conditions. The respondents infer from this that the use of the worksheets under all circumstances is compulsory and, conversely, that the failure to use them is reversible error.
However, here the ALJ found, with record support, that there was competing evidence regarding the proper use of the worksheets. The ATP did not use the worksheets because he opined that the claimant's range of motion was normal at the time of the injury. The ATP further testified that the DIME physician's apportionment of three percent for loss of range of motion caused by the claimant's earlier injury and his surgery was incorrect. Tr. at 16. The ATP stated that the use of the Division's worksheets by the DIME physician was also not correct because the DIME physician used the high moderate range as the level of severity of the range of motion for his preexisting injury at the time of his work injury. Tr. 17-18. The ATP relied on information from the claimant that he had no reduced range of motion before the industrial injury and, in fact, that he was working without restrictions at a job that involved lifting up to 200 pounds and bending during the entire day. Tr. at 18.
The question of whether the DIME physician or the ATP was correct in the use of the Division's worksheet is a question of fact for determination by the ALJ. See Wilson v. Industrial Claim Appeals Office of the State of Colorado 81 P.3d 1117 (Colo.App. 2003) (whether the DIME physician correctly applied the AMA Guides, and whether the rating itself has been overcome, are questions of fact for determination by the ALJ).
It is the ALJ's sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. The ALJ considered the DIME physician's concession that his opinion concerning the claimant's loss of range of motion was "medically probable speculation" in determining that the ATP's rating was a more accurate reflection of the claimant's impairment. Goldman Depo. Tr. 36. We may not substitute our judgment for that of the ALJ unless the testimony the ALJ found persuasive is rebutted by such hard, certain evidence that it would be error as a matter of law to credit the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
The respondents also argue that the evidence supports the DIME physician's conclusions regarding apportionment and relatedness. The respondents argue that the ATP agreed that the DIME physician had the right to use the Division of Worker's Compensation worksheet on the apportionment of spinal injuries. Tr. 21. However, the ATP also opined that he disagreed with the DIME physician's decision to use those worksheets. Tr. 25. We again note that 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). Here the ALJ was persuaded by the opinions of the ATP. We are not persuaded that the ALJ committed reversible error in crediting the opinions expressed by the ATP.
The respondents also note that the DIME physician explained the basis for the difference of opinion between himself and the treating physician. We agree that the evidence contains such an explanation from the DIME physician. Exhibit B at 9-10. However, the evidence also contains a detailed explanation from the ATP on the reasons he disagreed with the rating from the DIME physician. Exhibit C
Here, as noted above, the ALJ expressly weighed the conflicting medical evidence and entered lengthy and comprehensive factual findings regarding the DIME physician's opinion and the opinion of the ATP on the claimant's impairment rating. The ALJ was persuaded that the opinion of the DIME physician regarding the claimant's impairment rating had been successfully overcome by clear and convincing evidence. We perceive no basis on which to disturb the ALJ's order.
II.
The respondents also contend that the ALJ erred in relying on a misapplication of law on apportionment in determining whether the claimant overcame the DIME physician's opinion by clear and convincing evidence. The respondents argue that the ALJ erred when she held that the DIME physician should not have apportioned range of motion to the claimant's pre-existing back injury. The respondents cite Martinez v. Industrial Claim Appeals Office 176 P.3d 826 (Colo.App. 2007) for the proposition that the law does not mandate that the previous impairment be shown by a prior impairment rating or permanent work restrictions for apportionment to be made.
The ALJ determined that the claimant had established by clear and convincing evidence that there was no measurable loss of range of motion at the time of the compensable injury, and therefore apportionment of the rating was not appropriate. Findings of Fact, Conclusions of Law, and Order at 7, § 16. We do not read the ALJ's order as concluding that because there was no documented measurable loss of range of motion prior to the time of the compensable injury the law precluded apportionment. Similarly, in our view the ALJ did not rule that a measurable loss of range of motion at the time of the industrial injury was a condition precedent to apportionment. Instead, we read the order as recognizing, as the court did in Martinez, that the apparent lack of symptoms at the time of the current injury is a circumstance to be evaluated by the physician, although it does not as a matter of law preclude a medical determination of a preexisting permanent impairment. Martinez v. Industrial Claim Appeals Office supra.
Here the ATP reduced the claimant's impairment rating by ten percent because of the claimant's previous diskectomy but declined to make an additional reduction for loss of range of motion because there was no established range of motion impairment at the time of the subsequent industrial injury. Worker' Compensation Rule of Procedure 12-3, which addresses apportionment of permanent impairment, provides that:
Pursuant to § 8-42-104(2), C.R.S., a Level II accredited physician shall apportion the pre-existing permanent medical impairment from a work-related injury or occupational disease using the AMA Guides, 3rd Edition, Revised, where medical records or other objective evidence substantiate a pre-existing impairment. Any such apportionment shall be made by subtracting from the injured worker's impairment the pre-existing impairment as it existed at the time of the subsequent injury or occupational disease. The physician shall explain in their written report the basis of any apportionment. If there is insufficient information to measure the change accurately, the Level II accredited physician shall not apportion.
Worker' Compensation Rule of Procedure 12-3, 7 Code Colo. Reg. 1101-3 at 64.
In our view, the opinions expressed by the ATP in this case are consistent with the applicable procedure set forth in the rules. The ALJ's order reflects that she considered the competing evidence in the record presented by the respondents. Under the applicable standards of review, we may not disturb the ALJ's conclusion that the claimant's medical evidence was sufficient to overcome the DIME physician's apportionment by clear and convincing evidence.
III.
The respondents finally contend that the facts relied on by the ALJ were irrelevant to the issues at hearing. Specifically the respondents argue that the ALJ, in concluding that the ATP opinion was more accurate, improperly considered the fact that the ATP had evaluated the claimant numerous times over a period of approximately two years and had provided extensive treatment for the claimant.
The respondents contend that the frequency of treatment was not meant to be a factor in determining whether the impairment ratings of a DIME physician have been overcome by clearing and convincing evidence. The respondents argue that consideration of the frequency of treatment would thwart the policy behind having an unbiased DIME physician render an opinion on medical impairment because typically the DIME physician examines the claimant only once while an ATP sees a claimant on numerous occasions.
The respondents have not cited any authority, nor are we aware of any, that precludes an ALJ's consideration of a doctor's extensive treatment of a claimant and knowledge of the claimant's condition as a consideration in deciding whether to credit that physician's opinion. Under Colorado Rule of Evidence 401 relevant evidence is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." See Section 8-43-210, C.R.S. 2007 (rules of evidence for district courts applicable to workers' compensation hearings). We are not persuaded that it is reversible error for an ALJ to consider the number of contacts a physician has had with the claimant in determining what medical opinion to credit. We perceive no basis on which to disturb the ALJ's order and therefore affirm it.
IT IS THEREFORE ORDERED that the ALJ's order issued March 17, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________ Curt Kriksciun
_______________ Thomas Schrant
JASON GARNER, EVERGREEN, CO, (Claimant)
AMERICAN HOME ASSURANCE, Attn: TAMMY WILLIAMS, C/O: SEDGWICK CMS-PHOENIX, LEXINGTON, KY, (Insurer)
DOUGLAS R PHILLIPS, PC, Attn: SUSAN D. PHILLIPS, ESQ., DENVER, CO, (For Claimant)
DWORKIN, CHAMBERS, WILLIAMS,, Attn: DAVID J DWORKIN, ESQ., C/O: YORK, BENSON EVANS, DENVER, CO, (For Respondents)
SEDGWICK CMS, Attn: YSELA GASPAR, PHOENIX, AZ, (Other Party)