Opinion
W.C. No. 4-265-360
April 16, 1998
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Stuber (ALJ) which awarded permanent partial disability benefits based on medical impairment of eleven percent of the whole person. We affirm.
The claimant sustained a compensable back injury in April 1995. In October 1995, the treating physician, Dr. Gellrick, placed the claimant at maximum medical improvement and issued an impairment rating. Dr. Gellrick opined that the claimant has an eight percent whole person impairment attributable to a specific disorder of the spine plus impairment for lost range of motion in lumbar extension. However, Dr. Gellrick found that the claimant's measurements for lumbar flexion were invalid when determined during a functional capacities evaluation, and were again invalid when Dr. Gellrick measured them in her office. Consequently, no impairment was assessed for lumbar flexion.
The claimant obtained a personal independent medical examination (IME) from Dr. Harder. Dr. Harder assessed a sixteen percent whole person impairment based on a specific disorder of the spine and lost range of motion. Dr. Harder found that the claimant's lumbar flexion measurements were valid.
The claimant also requested a Division-sponsored IME on the issue of impairment. The Division IME was performed by Dr. Centeno who opined that the claimant has an eleven percent whole person medical impairment. Dr. Centeno found that the claimant's lumbar flexion measurements were not valid, and therefore, assessed no impairment based on this factor.
The claimant requested a hearing and sought to overcome the Division IME. At the hearing, the respondents stipulated that Dr. Centeno's Division-IME rating was "technically incorrect" under the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides), "simply because there is no evidence that he did do a repeat lumbar flexion range of motion measurement." Counsel for respondents then agreed the issue was whether it could be established "by a preponderance of the evidence" that Dr. Centeno's rating was incorrect. (Tr. pp. 5-9).
The ALJ found, by a "preponderance of the evidence," that Dr. Centeno's eleven percent rating was correct. In so doing, the ALJ recognized that the claimant's lumbar range of motion measurements varied over time. However, the ALJ noted that Dr. Centeno's measurements were the most recent, and stated that if the tests had been repeated "the probability is that the measurements would have been very similar to the first measurements." The ALJ also noted that Dr. Centeno's measurements of the claimant's lumbar flexion were "similar" to those obtained by Dr. Harder.
I.
The claimant contends that where, as here, the parties stipulate that the Division IME's rating is not in accordance with provisions of the AMA Guides, the rating must be treated as "no good" and a "nullity." In support of this proposition the claimant reasons that § 8-42-107(8)(c), C.R.S. 1997, requires impairment ratings to be computed in accordance with the AMA Guides. The claimant then urges that we adopt Dr. Harder's rating. We disagree with this argument.
We do not dispute that § 8-42-107(8)(c) requires physicians to conduct impairment ratings in accordance with the directives of the AMA Guides. See also § 8-42-101(3.7), C.R.S. 1997. However, § 8-42-107(8)(c) goes on to state that the "finding" of a Division IME physician "regarding the medical impairment rating shall be overcome only by clear and convincing evidence." (Emphasis added).
Thus, as stated in Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995), the party challenging the IME rating must produce evidence which shows that it is highly probable the IME physician's rating is incorrect. As the statute itself demonstrates, the question of whether a rating has been "overcome" is an evidentiary matter to be determined by the ALJ.
The claimant's argument notwithstanding, we do not interpret § 8-42-107(8)(c), nor Metro Moving Storage Co. v. Gussert, as holding that any deviation from the rating protocols of the AMA Guides requires an ALJ to find that the IME physician's rating has been overcome by clear and convincing evidence. To the contrary, Gussert indicates that the questions of whether a physician has complied with the AMA Guides, and ultimately whether the rating has been overcome by clear and convincing evidence, are matters to be determined on the totality of the evidence. Put another way, deviation from the AMA Guides constitutes some evidence which the ALJ may consider in deciding whether the rating of the IME physician has been proven incorrect by clear and convincing evidence. However, deviation from the AMA Guides may prove inconsequential if the balance of the evidence demonstrates that the deviation does not cause substantial doubt concerning the overall validity of the rating.
Further, we recently considered an argument similar to that of the claimant in Sutton v. Alpen Construction, W.C. No. 4-225-415 (April 1, 1997). In that case, we held that an IME physician's failure to repeat invalid range of motion tests did not require the ALJ to find that the IME physician's rating was overcome by clear and convincing evidence. In Sutton, the IME physician did not repeat the range of motion measurements because he found they were consistent with earlier range of motion measurements performed by a physical therapist. The Court of Appeals affirmed our decision in Sutton v. Industrial Claim Appeals Office, (Colo.App. 97CA0711, November 13, 1997) (not selected for publication). The court stated as follows:
"We agree with the Panel that proof of an IME physician's deviation from the rating protocols of the AMA Guides does not require the ALJ to find that the physician's rating has been overcome by clear and convincing evidence. Rather, when making the ultimate determination of whether the IME's rating has been overcome by clear and convincing evidence, the ALJ must consider the proof of the deviation in the context of all the other evidence."
It follows that the claimant is incorrect in arguing that Dr. Centeno's failure to repeat the lumbar flexion range of motion test necessarily invalidates his rating or required the ALJ to adopt the rating issued by Dr. Harder. To the contrary, the ALJ was free to consider the nature and the scope of Dr. Centeno's deviation from the AMA Guides, evaluate that deviation in light of all other evidence concerning the proper rating, and determine whether the Division IME rating was overcome by clear and convincing evidence.
We recognize that this view of the statute may lead to results which, when compared to other cases, are inconsistent. However, neither the AMA Guides, nor the physicians applying them, are perfectly consistent. For this reason, the General Assembly has left to the ALJ the ultimate decision concerning the accuracy of the rating.
We also note that the ALJ, with the respondents' consent, applied a preponderance of the evidence standard of proof rather than a clear and convincing standard. However, this error was harmless since it rebounded to the claimant's advantage, and because the respondents did not object.
II.
Finally, the claimant contends that the ALJ's order is not supported by substantial evidence in the record. The claimant asserts that the ALJ "speculated" when he found that the claimant's lumbar flexion measurements would probably have been the same if Dr. Centeno had repeated them. The claimant points out that the range of motion measurements obtained by Dr. Centeno were very close to the valid lumbar flexion measurements obtained by Dr. Harder. We are not persuaded.
In reviewing the ALJ's order we must uphold his findings of fact if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. In applying this standard, we must view the evidence in a light most favorable to the prevailing party, and defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations and the plausible inferences he drew from the evidence. Metro Moving Storage Co. v. Gussert, supra.
Here, as the ALJ found, Dr. Centeno was not the only medical professional to find that the claimant's lumbar flexion range of motion measurements were invalid. In fact, the claimant's lumbar flexion range of motion measurements were found to be invalid at the functional capacities evaluation, and were again invalid when measured by Dr. Gellrick. Further, as the ALJ noted, Dr. Centeno's measurements were the most recent measurements available. Consequently, we disagree with the claimant that the ALJ was "speculating" when he opined that repeat lumbar flexion range of motion measurements probably would be invalid. To the contrary, the ALJ was drawing a plausible inference from the evidence before him.
It is true that a contrary inference was possible if the ALJ placed greater weight on the testimony and report of Dr. Harder. However, we decline the claimant's invitation to substitute our judgment for that of the ALJ concerning the weight and inferences to be drawn from the expert medical evidence. The mere possibility of a different result affords no basis for relief on appeal. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
IT IS THEREFORE ORDERED that the ALJ's order dated October 10, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Kathy E. DeanNOTICE This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed April 16, 1998 to the following parties:
Ida L. Rivale, c/o Roger Fraley, Jr., Esq., 517 E. 16th Ave., Denver, CO 80203
Beta Metals, Inc., 4975 Miller St., Wheat Ridge, CO 80033-2240
Carolyn A. Boyd, Esq., Colorado Compensation Insurance Authority — Interagency Mail
Roger Fraley, Jr., Esq., 517 E. 16th Ave., Denver, CO 80203 (For Claimant)
Faye Boyd, IME Coordinator, Division of Workers' Compensation — Interagency Mail
By: __________________________________________________