Opinion
W.C. No. 4-640-886.
September 3, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated April 1, 2008 that determined the claimant failed to overcome the finding of the Division-sponsored independent medical examination (DIME) physician and, therefore, denied additional permanent partial disability benefits. We affirm.
The ALJ's findings of fact are summarized as follows. Dr. Kesten treated the claimant for injuries sustained while driving a bus for the respondent employer. He placed her at maximum medical improvement on August 6, 2007 and diagnosed, among other things, cervical, thoracic, and right upper extremity pain, and right upper extremity paresthesias. Dr. Morfe conducted a DIME on November 2, 2006. He diagnosed diffuse myofascial pain syndrome affecting the neck, proximal upper extremities, and shoulder. Dr. Morfe found the claimant's range of motion for her cervical spine to be invalid. He completed his report on January 29, 2007 after the claimant returned for repeated testing of her range of motion, which Dr. Morfe again invalidated. Dr. Morfe assessed a four percent whole person impairment rating for the claimant. However, Dr. Morfe did not include any impairment rating concerning the claimant's upper extremity.
The claimant sought to overcome Dr. Morfe's opinion as to her assigned permanent partial impairment rating. The ALJ reviewed the opinions of Dr. Kesten and Dr. Morfe as to their diagnoses of the claimant's condition and her range of motion tests in the context of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides). The ALJ determined that Dr. Morfe's decision not to provide an impairment rating for either the claimant's upper extremity or her alleged loss of range of motion of her spine was consistent with the opinion of Dr. Beatty, who had also examined the claimant. The ALJ further determined that a physician has discretion under the AMA Guides to invalidate a patient's range of motion if he believes the patient during examination to be exhibiting symptoms that are not organically based or do not correlate with testing and documentation. The ALJ concluded that the claimant had not overcome the DIME physician's opinion and denied additional permanent partial disability benefits. Instead, the ALJ determined that Dr. Kesten's opinion that the claimant sustained permanent impairment of her upper extremity did "not make it highly probable that the rating of Dr. Morfe is incorrect." Findings of Fact, Conclusions of Law, and Order (Order) at 4, ¶ 3.
The claimant asserts that the DIME physician, Dr. Morfe, failed to consider or rebut the extremity impairment rating of her right shoulder provided by her treating physician, Dr. Kesten. As we understand the claimant's assertions, she argues that the ALJ erred in not upholding Dr. Kesten's extremity rating of her shoulder area. In support of her contentions, the claimant cites Delaney v. Industrial Claim Appeals Office, 30 P.3d 691 (Colo.App. 2000), which we find inapposite to the circumstances of this case. In Delaney, the Colorado Court of Appeals held that under the circumstances of the case the ALJ should have considered a DIME physician's opinion that the claimant sustained a whole person impairment when determining whether the claimant sustained a scheduled or non-scheduled permanent impairment. Delaney, 30 P.3d at 693-94.
Here, the claimant asserts that the DIME physician's failure to address and rebut Dr. Kesten's impairment rating of her right shoulder entitles her to the benefit of that rating. We disagree. The DIME physician's permanent medical impairment rating is binding unless overcome by clear and convincing evidence. In making his determination the DIME physician must "assess, as a matter of diagnosis, whether the various components of the claimant's medical condition are causally related to the industrial injury." Martinez v. Industrial Claim Appeals Office, 176 P.3d 826, 827 (Colo.App. 2007); accord, Leprino Foods Co. v. Industrial Claim Appeals Office, 134 P.3d 475, 482-83 (Colo.App. 2005); American Compensation Ins. V. McBride, 107P.3d 973, 980 (Colo.App. 2004). Thus, it is the opinion of Dr. Morfe that is entitled to binding effect absent clear and convincing evidence to the contrary.
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 determinations 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). 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, his 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. Id. This standard of review is deferential and the scope of our review in this regard is "exceedingly narrow." Id. at 414. 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).
Dr. Morfe issued a written report dated November 2, 2006, in which he noted that Dr. Kesten's whole person impairment rating included a rating for the range of motion of the claimant's right shoulder. Exhibit A at 4. Dr. Morfe's impression included "[d]iffuse myofascial pain syndrome, mainly affecting the neck, proximal upper extremities, and shoulders." Nonetheless, his impairment rating was limited to four percent for the claimant's cervical spine. Exhibit A at 5-6. Dr. Morfe later testified at his deposition. He did not recall examining or testing the claimant's shoulder range of motion. Morfe Depo. at 15. He merely "noted under my provocative maneuvers . . . that no excessive pain was noted with any Tinel's maneuvers throughout her shoulders or upper extremities bilaterally." Morfe Depo. at 16. Dr. Morfe stated that he was not asked to rate the claimant's right shoulder. He explained that his finding of nothing other than myofascial pain concerning the right shoulder was because he did not see any documented pathology and, also, that he "didn't think that the mechanism of injury may have necessarily caused any shoulder discomfort." Morfe Depo. at 24. The DIME physician's findings include his subsequent opinions, as well as his initial report. Andrade v. Industrial Claim Appeals Office, 121 P.3d 328, 330 (Colo.App. 2005). The ALJ expressly considered Dr. Morfe's failure to rate the claimant's upper extremity. He found the absence of a rating for the upper extremity to be "consistent with the opinion of Brian J. Beatty, D.O., who stated in his report that, `Currently there is no impairment based on objective information with regard to the claimed injury.'" Order at 2, ¶ 3 and at 3, ¶ 3. This determination is supported by Dr. Beatty's 17-page report. Exhibit C at 30.
The claimant argues that that the respondents in their application for a DIME did not list the claimant's right shoulder condition as a specific body part to be evaluated. However, the DIME process contemplates that the DIME physician will evaluate all components of the claimant's condition and determine the cause of the various medical components. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998). The failure of a party to list all the specific body parts in the application for a DIME is not determinative. See Gray v. Dunning Construction, W. C. No. 4-516-629 (February 14, 2005).
The claimant further asserts that the ALJ erred by upholding the DIME physician's elimination of a range of motion rating for her cervical spine on the basis that her range of motion deficits were invalid. The claimant refers to Dr. Morfe's comments about Dr. Kesten's cervical range of motion measurements. Dr. Morfe stated that "[r]epeat range of motion testing that Dr. Keston (sic) was doing is probably more consistent than a one-time visit or one-or two-time visit with me." Morfe Depo. at 22. However, he denied that Dr. Kesten's measurements of the claimant's cervical spine were more consistent than his own measurements. Morfe Depo. at 21. Dr. Morfe also confirmed that he did not provide a rating for the claimant's cervical range of motion for nonphysiologic reasons. Morfe Depo. at 23. In support of his decision not to provide a range of motion rating, Dr. Morfe explained that he understood the AMA Guides allowed him to "take into account your clinical judgment, as well as range of motion, to come up with your opinion." Morfe Depo. at 24. The ALJ made corresponding findings and conclusions. Order at 3, ¶¶ 2, 9. We find no basis for disturbing the ALJ's decision to uphold the DIME physician's opinion as to the claimant's permanent partial impairment rating. See Wilson v. Industrial Claim Appeals Office, 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 THEREFORE ORDERED that the ALJ's order dated April 1, 2008, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
REBECCA OLDENBERG, GRANBY, CO, (Claimant).
FIRST GROUP AMERICA, Attn: JENNY FORREST, KANSAS CITY, MO, (Employer).
AMERICAN HOME ASSURANCE, C/O: GALLAGHER BASSETT SVCS, ENGLEWOOD, CO, (Insurer).
ROBERT W TURNER, LLC, Attn: ROBERT W TURNER, ESQ., DENVER, CO, (For Claimant).
TREECE, ALFREY, MUSAT BOSWORTH, PC, Attn: KATHLEEN M FAIRBANKS, ESQ., DENVER, CO, (For Respondents).