Summary
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.
Summary of this case from In re Rivale, W.C. NoOpinion
W.C. No. 4-225-415
April 1, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Friend (ALJ), which awarded medical impairment benefits based on a disability of five percent of the whole person. We affirm.
The claimant sustained a compensable back injury on August 15, 1994, and was placed at maximum medical improvement (MMI) in May 1995. The treating physician referred the claimant to Dr. Berenbeim for an impairment rating.
On July 17, 1995, Dr. Berenbeim opined that the claimant had a seventeen percent whole person impairment. Dr. Berenbeim utilized Table 53(II)(B)of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides), and determined that the claimant has a five percent impairment attributable to an unoperated intervertebral disk with none-to-minimal degenerative changes. Dr. Berenbeim opined that the claimant is not entitled to a higher rating based on a herniated disk because the positive MRI findings do not "correlate with the area of his subjective complaints." Dr. Berenbeim also found that the claimant has a thirteen percent whole person impairment "due to range of motion deficits." In determining the claimant's range of motion impairment, Dr. Berenbeim utilized test results prepared by a physical therapist at Spectrum Rehabilitation.
A Division-sponsored independent medical examination (IME) was performed by Dr. Ryan, and he concluded that the claimant has a five percent whole person impairment based on Table 53(II)(B). However, Dr. Ryan declined to assign any impairment based on the claimant's lost range of motion or neurological symptoms. Dr. Ryan opined that the claimant's symptoms are attributable to a "right sacroiliac injury" and that the claimant does not have "discogenic low back pain." Although Dr. Ryan took range of motion measurements, he considered them to be invalid because the claimant's "global symptoms" were inconsistent with any known "pathological entity." (Tr. p. 27). Moreover, Dr. Ryan indicated that his measurements were confirmed by those taken at Spectrum Rehabilitation. Dr. Ryan also stated that the claimant's sitting and supine straight leg tests were so inconsistent that no conclusion could be drawn from them. (Tr. pp. 24-28).
The claimant presented the testimony of Dr. Bralliar, who performed an IME at the claimant's behest. Dr. Bralliar opined that the ratings of Dr. Berenbeim and Dr. Ryan are improper under the AMA Guides and the Level II accreditation standards issued by the Division of Workers' Compensation. Specifically, Dr. Bralliar opined that Dr. Ryan should not have relied on the range of motion tests performed by Spectrum, but should have repeated his own tests. Dr. Bralliar also criticized Dr. Ryan's failure to record the results of the straight leg tests, and Dr. Berenbeim's failure to conduct repeat range of motion tests.
Ultimately, Dr. Bralliar opined that the claimant has a forty percent whole person impairment under the AMA Guides. Dr. Bralliar utilized Table 53(II)(C) because he believes that the claimant has an injury-related herniated disk. Dr. Bralliar also awarded impairment based on the claimant's lost range of motion and neurological deficits.
The ALJ concluded that the claimant failed to overcome Dr. Ryan's IME rating by clear and convincing evidence, and awarded benefits based on Dr. Ryan's five percent rating. In so doing, the ALJ stated that Dr. Ryan "complied with the requirements of the AMA Guides to a sufficient extent to accurately rate the claimant." In support of this conclusion, the ALJ credited Dr. Berenbeim's opinion that the claimant's symptoms do not correlate with his examination. Further, the ALJ cited the fact that Dr. Ryan's range of motion measurements were essentially the same as those provided by Spectrum Rehabilitation, and found that there would have been "no benefit to repeating the measurements." Moreover, the ALJ stated that he was not persuaded by Dr. Bralliar's testimony because he "added some impairment for the herniated disks while the medical records contain references to the inability of the treating physicians to correlate claimant's physical symptoms with the findings on diagnostic testing."
I.
On review, the claimant contests the ALJ's finding that Dr. Ryan's impairment rating was not overcome by clear and convincing evidence. Essentially, the claimant argues that Dr. Ryan's failure to follow certain rating protocols contained in the AMA Guides invalidates his opinion. The claimant asserts that the ALJ was not free to accept Dr. Ryan's rating on the basis that Ryan "substantially complied" with the AMA Guides. The claimant also argues that the ALJ was obliged to rely on Dr. Bralliar's rating since it is indisputably correct under the AMA Guides. We are not persuaded.
Dr. Ryan's impairment rating was binding on the parties unless overcome by clear and convincing evidence. Section 8-42-107(8)(c), C.R.S. (1996 Cum. Supp.). It is now well established that the question of whether the IME physician's rating has been overcome by clear and convincing evidence is a matter of fact for determination by the ALJ. In resolving this issue the ALJ must consider the factual question of whether the IME physician properly applied the AMA Guides in arriving at the rating. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
We have previously held 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, proof of deviation must be considered in the context of all the other evidence when the ALJ makes the ultimate determination of whether the IME's rating has been overcome by clear and convincing evidence. Eg. Juarez v. Arapahoe Associates, Ltd., W.C. No. 4-122-705 (May 10, 1996); Aguirre v. American Linen, W.C. No. 4-132-021 (March 14, 1994).
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. (1996 Cum. Supp.). In applying this standard, we must defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. This test applies to the medical evidence as well as the lay evidence. Metro Moving Storage Co. v. Gussert, supra.
Applying these principles here, we find no basis for concluding that the ALJ erred as a matter of law in finding that Dr. Ryan's rating was not overcome, or in declining to accept Dr. Bralliar's opinion. Although Dr. Ryan may have deviated from the testing and recording protocols of the AMA Guides, he fully explained his reasons for doing so. Moreover, Dr. Ryan testified that the claimant did not have discogenic pain, that his reported symptoms were out of all proportion to what could be expected from his condition, and that repeat testing would be fruitless. Thus, the ALJ could plausibly conclude that repeat testing would not have produced any other rating, or altered Dr. Ryan's opinion concerning the claimant's impairment rating. Conversely, the ALJ was persuaded by the evidence that the claimant did not have discogenic pain, and therefore, Dr. Bralliar's rating based on disc pain was not in accordance with the AMA Guides.
Here, the ALJ was presented with a conflict between expert medical witnesses concerning the proper application of the AMA Guides to the circumstances of this case. Further, the evidence can be interpreted as proving that neither the IME physician, nor the claimant's expert, fully complied with the AMA Guides in arriving at a rating. Under these circumstances, we cannot say the ALJ erred as a matter of law in finding that Dr. Ryan's opinion was not overcome by clear and convincing evidence.
II.
The claimant argues that the process for reviewing Dr. Ryan's IME rating denied him due process of law. However, we lack jurisdiction to address this constitutional argument. See Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971).
IT IS THEREFORE ORDERED that the ALJ's order dated June 11, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Dona HalseyNOTICE 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. (1996 Cum. Supp.).
Copies of this decision were mailed April 1, 1997 to the following parties:
Dennis Sutton, Route One, Box 170, Waynesboro, TN 38485
Alpen Construction, 1700 Chambers Rd., Aurora, CO 80011-4618
Employers Mutual Companies, Attn: Lynn Cochran, P. O. Box 441098, Aurora, CO 80044-1098
Shelley P. Dodge, Esq., 1763 Franklin St., Denver, CO 80218 (For Claimant)
Lynda S. Newbold, Esq., 1777 S. Harrison, #1110, Denver, CO 80210 (For Respondents)
By: _____________________________________________________