Opinion
W.C. No. 4-753-985.
June 19, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated February 2, 2009, that denied the claim for additional permanent partial disability (PPD) benefits. We affirm.
The claimant suffered an admitted industrial injury to his back. The claimant's authorized treating physician (ATP) determined that the claimant reached maximum medical improvement (MMI). The ATP opined that the claimant had an impairment of seven percent whole person impairment rating pursuant to Table 53 of the American Medical Association Guidelines to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides) and 16 percent impairment for loss of range of motion. The ATP combined the ratings for a total whole person impairment rating of 22 percent.
The claimant underwent a Division-sponsored independent medical examination (DIME). The DIME physician agreed that the claimant was at MMI. The DIME physician assigned a seven percent whole person impairment rating pursuant to Table 55 AMA Guides and 21 whole person impairment rating for loss of range of motion. These ratings combined for a total whole person impairment rating of 27 percent.
The DIME physician authored a letter to the DIME Unit of the Division of Workers' Compensation in addition to the DIME Examiner's Summary Sheet assigning an whole person impairment rating of 27 percent. Exhibit C. In relevant part, the DIME physician stated as follows:
According to the measurements today, my rating was 27%, but this seems to be way out of proportion to what one would expect with simple degenerative change at one level in a young fellow such as this and therefore I suggested that even though the numbers were internally consistent, I believe this was not consistent with his underlying pathological process, which is simple degenerative change at one level in his lumbar spine with no particular injury and there would be suspect with his range of motions being so out of proportion to what one would expect in someone that is otherwise functional.. . . . I think at this point given this gentleman's range of motion rating of 21 percent is absurd.
In his deposition the DIME physician testified that it was his professional medical opinion that if the claimant's injury was deemed work related, the only appropriate rating would be a seven percent whole person impairment rating under Table 53 of the AMA Guides. Riffle Depo. at 12.
The ALJ determined that the DIME physician determined that the claimant suffered seven percent whole person impairment. The ALJ further found that the claimant had failed to prove by clear and convincing evidence that the medical impairment determined by the DIME physician was incorrect. Consequently, the ALJ determined that the claimant was entitled to PPD benefits based upon seven percent whole person impairment.
On appeal, the claimant first contends that the DIME physician's opinions are unclear and contradictory. The claimant argues that a reasonable person would conclude that the DIME physician had determined that the claimant had incurred a 27 percent impairment based on documents he had authored. We are not persuaded that the ALJ committed reversible error.
Here it is true that the DIME physician prepared the Examiner's Summary Sheet assigning a whole person impairment rating of 27 percent and then later testified that the claimant had a seven percent whole person impairment rating. However, if the DIME physician offers ambiguous or conflicting opinions concerning MMI or impairment, it is for the ALJ to resolve the ambiguity and determine the DIME physician's true opinion as a mater of fact. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000); Stephens v. North Air Package Express Services, W. C. No. 4-492-570 (February 16, 2005), affd, Stephens v. Industrial Claim Appeals Office (Colo.App. 05CA0491, January 26, 2006) (not selected for publication). In so doing, the ALJ should consider all of the DIME physician's written and oral testimony. Lambert Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656, 659 (Colo.App. 1998). A DIME physician's finding of MMI and permanent impairment consists not only of the initial report, but also any subsequent opinion given by the physician. See Andrade v. Industrial Claim Appeals Office, 121 P.3d 328 (Colo.App. 2005) (ALJ properly considered DIME physician's deposition testimony where he withdrew his original opinion of impairment after viewing a surveillance video); see also, Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082 (Colo.App. 2002) (noting that DIME physician retracted original permanent impairment rating after viewing videotapes showing the claimant performing activities inconsistent with the symptoms and disabilities she had reported). We may not interfere with the ALJ's resolution of these issues if supported by substantial evidence. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra.
Here the ALJ specifically found, with record support, that the DIME physician's opinion was that the claimant had a seven percent whole person impairment rating due to the claimant's admitted work injury. Reiss Depo. at 12. The testimony of the DIME physician is consistent with his earlier report attached to the Examiner's Summary Sheet in which he pointedly noted that to give the claimant a range of motion rating of 21 percent would be absurd. Exhibit C at 10.
Because the issue is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). In our view, there is substantial evidence to support the ALJ's determination of what the DIME physician's true opinion was regarding impairment.
The claimant further argues that the DIME physician improperly applied the AMA Guides in invalidating the claimant's range of motion measurements. The claimant cites section 3.3(a) of the AMA Guides, which provide that reproducibility of abnormal motion is currently the only known criterion for validating optimum effort. The claimant argues that both the ATP and the DIME physician performed range of motion testing and obtained similar motion measurements that were deemed valid. The claimant concludes that the DIME physician was clearly erroneous in finding that the claimant's range of motion was out or proportion to the underlying lumbar pathology and therefore the range of motion tests conducted by the DIME physician were valid and the claimant should receive a 27 percent whole person impairment rating. We are unpersuaded by the claimant's argument.
The 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). Proof that a DIME physician deviated from the rating protocols of the AMA Guides does not compel the ALJ to find that the rating has been overcome by clear and convincing evidence. Rather, proof of such a deviation constitutes some 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).
It is clear that the DIME physician from the beginning did not think it was appropriate to give a rating of 24 percent with no herniated disk and only back pain. Exhibit B at 5-6. Further the DIME physician questioned giving the claimant any award for permanent impairment. He cautioned that the claimant might be compensated for "a backache, which everybody gets." Depo at 24-25. Moreover, the ALJ credited Dr. Fall, who opined that there was no objective evidence, on physical examination, of a low back injury. Exhibit D at 14. Dr. Fall opined that the claimant's range of motion measurements were not valid and clinical judgment needs to be used under the AMA Guides and it is appropriate to invalidate range of motion testing for nonphysiologic reasons. Exhibit D at 15.
The claimant argues that he is entitled to benefits based upon a 27 percent whole person permanent partial impairment rating. However, the only physician to opine that the claimant was entitled to a 27 percent whole person impairment rating was the ATP. In our opinion, given the testimony and the reports of the DIME physician and Dr. Fall the ALJ was not compelled to accept the ATP's rating and find that the DIME physician's opinion had been overcome by clear and convincing evidence. Under these circumstances, we perceive no basis upon which to set aside the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order dated February 2, 209 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
CECIL RIFFLE, SPRINGS, CO, 80918 (Claimant)
CURRENT USA, Attn: IVY MORRIS, C/O: CURRENT USA, INC., 1005 E COLORADO SPRINGS, CO, (Employer)
PACIFIC INDEMNITY COMPANY, Attn: BRANDEN COUNTRYMAN, C/O: ACE PROPERTY AND CASUALTY INS CO, (Insurer) POTTER GARDNER, PC, Attn: H. CLIFFORD POTTER, ESQ., COLORADO SPRINGS, CO, 80903-3812 (For Claimant)
CLIFTON, MUELLER BOVARNICK, PC, Attn: HOLLY M. BARRETT, ESQ., CO, (For Respondents)