Opinion
W.C. No. 4-339-748
February 24, 1999.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) which awarded permanent partial disability benefits based upon 9 percent whole person impairment. We affirm.
On April 4, 1997, the claimant suffered an admitted back injury. Dr. Boyer placed the claimant at maximum medical improvement (MMI) on September 19, 1997, with zero medical impairment. On January 19, 1998, Dr. Leimbach performed a Division-sponsored independent medical examination (IME) under the provisions of § 8-42-107(8)(c), C.R.S. 1998, which states that the IME physician's rating is binding unless overcome by "clear and convincing evidence." Based upon Table 53(II)(B) of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides), Dr. Leimbach opined that the claimant sustained 5 percent impairment due to a specific disorder of the lumbar spine and 4 percent impairment due to range of motion deficits in the lumbar spine for a total rating of 9 percent whole person impairment. Dr. Leimbach also agreed with Dr. Boyer's finding of MMI.
Table 53 II(B) of the AMA Guides assigns a 5 percent whole person rating where the claimant suffers an "intervertebral disc or other soft tissue lesion" in the lumbar spine which is unoperated, with a medically documented injury and " a minimum of six months of medically documented pain and rigidity with or without muscle spasm." (Emphasis added). The respondents argued that permanent impairment is determined at MMI, and that Table 53(II)(B) does not allow a physician to include pain symptoms after MMI. They also contend that because the claimant reached MMI less than six months after the injury, the claimant could not have "a minimum of six months" of medically documented pain and rigidity. Therefore, the respondents contend that Dr. Leimbach erroneously included a rating under Table 53(II)(B).
The ALJ rejected the respondents' argument. In so doing the ALJ was persuaded by our conclusions in Velasquez v. Roaring Fork Redi-Mix, W.C. No. 4-324-686 (September 4, 1998), and Martinez v. MCI Communications, W.C. No. 4-207-987 (July 24, 1996). (Tr. p. 10); CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev'd on other grounds, at 783 P.2d 269 (1989) (the ALJ's oral findings may be considered to interpret the ALJ's written findings). The ALJ found that although the claimant was placed at MMI less than six months after the injury, the IME was performed more than six months after the injury, and the claimant was complaining of back pain at the time of the IME. Consequently, the ALJ determined that the record contained evidence of more than six months of documented pain and rigidity in the lumbar spine, as required by Table 53(II)(B). Therefore, the ALJ determined the respondents failed to present "clear and convincing" evidence that Dr. Leimbach erred by including a rating under Table 53.
I.
On review the respondents renew the arguments they made before the ALJ. The respondents also contend that Martinez and Velasquez ignore the plain language of Table 53(II)(B) and were wrongly decided. We reject these arguments.
In Martinez v. MCI Communications, supra, (copy in record) we stated that:
"Section 8-40-201(11.5), C.R.S. (1995 Cum. Supp.) defines MMI as the date when " any medically determinable physical or mental impairment as a result of injury has become stable and when no further treatment is reasonably expected to improve the condition." (Emphasis added). However, the statute also provides that physical impairment must be determined in accordance with the AMA Guides. Section 8-42-101(3.7) C.R.S. 1997. Thus, it is possible that an injury may produce some determinable and stable medical impairment, yet the injury is not fully rateable under the AMA Guides because insufficient time has passed."
Further, we concluded that the respondents' construction would result in a situation where the claimant's degree of medical impairment would be dependent on the date the claimant reached MMI. Some claimants with identical injuries would reach MMI within six months while others would not. As a result, workers with identical injuries would be entitled to different medical impairment ratings, and therefore, different permanent disability benefits based solely on the speed at which they reached MMI. Accordingly, in Velasquez and Martinez we rejected the argument that the MMI date is determinative of whether the claimant has six months of documented pain for purposes of applying Table 53 of the AMA Guides. We are not persuaded to depart from our conclusions in Velasquez and Martinez. Consequently, we adhere to our conclusion that the MMI date is not determinative of whether the claimant's impairment is rateable under Table 53 of the AMA Guides. See also Kenny v. E.I. Dupont Denemours, W.C. No. 4-325-067 (November 24, 1998).
Moreover, the facts of this case are not significantly different from the facts in Martinez and Velasquez. Consequently, we perceive no basis to reach a contrary result here.
The ALJ was persuaded by Dr. Leimbach's opinions that the claimant demonstrated pain and rigidity of the lumbar spine during the IME. We may not substitute our judgment for that of the ALJ concerning the probative value and sufficiency of Dr. Leimbach's opinions. See City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993). Furthermore, Dr. Leimbach's IME report supports the ALJ's finding that the claimant had more than six months of medically documented pain and rigidity from the industrial injury, and this finding supports the ALJ's determination that the respondents failed to prove by clear and convincing evidence that Dr. Leimbach incorrectly rated the claimant's impairment. Thus, it is immaterial that the record contains some medical evidence which, if credited, might support a contrary determination.
Moreover, the respondents' reliance on our holding in Silva v. Express Temporary Service, W.C. No. 4-303-227 (April 28, 1998) is misplaced. In Silva the issue was whether the ALJ erred in crediting the treating physician's opinion that there was no physiological or anatomical basis for the claimant's lumbar pain, and relying on that opinion to overcome the IME physician's rating under Table 53(II)(B) of the AMA Guides. Silva did not address the issue of whether impairment can be rated under Table 53 where the claimant reaches MMI less than six months from the date of the injury. Therefore, Silva is factually and legally distinguishable.
II.
The claimant requests the imposition of attorney fees against the respondents on the ground that the appeal is "frivolous." The claimant reasons that we resolved the respondents' argument in Martinez and Velasquez, and therefore, she contends that the appeal is not well grounded in fact or warranted by existing law. We deny the request for attorney fees.
Section 8-43-301(14), C.R.S. 1998, states that attorney fees may be awarded against an attorney who submits a petition to review or brief in support of a petition "which is not well grounded in fact and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law."
So far as we know, no published appellate decision has addressed the respondents' argument. It is true that we have held that the date of MMI is not dispositive of whether an impairment can be rated under Table 53 of the AMA Guides. However, we cannot say that this conclusion will ultimately be adopted by the courts. Moreover, the fact that we disagree with the respondents' argument does not render it frivolous. See Weissman v. Crawford Rehabilitation Services, Inc., 914 P.2d 380 (Colo.App. 1995); Brandon v. Sterling Colorado Beef Co., 827 P.2d 559 (Colo.App. 1991) (resort to judicial review is not considered frivolous or in bad faith as long as there is a reasonable basis for party to challenge the ALJ's order). Thus, we decline to impose attorney fees against the respondents.
IT IS THEREFORE ORDERED that the ALJ's order dated August 27, 1998, is affirmed.
IT IS FURTHER ORDERED that the claimant's request for an award of attorney fees is denied.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________________ David Cain
_______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed February 24, 1999 to the following parties:
Nora Sheldon 530 S. Topeka, Ness City, KS 67560
Doug Marino, McLane Western Inc., 2100 Highway 119, Longmont, CO 80504-9541
Connie Rivera, Scott Wetzel Service, Inc., 2821 S. Parker Road, Suite 215, Aurora CO 80014
Janie C. Castaneda, Esq., 1120 Lincoln Street, Suite 1000, Denver, CO 80203 (For Claimant)
James B. Fairbanks, Esq., Alyson A. Ray, Esq., 999 18th Street, Suite 1600, Denver, CO 80202 (For Respondents)
BY: _______________