Opinion
W.C. No. 4-494-116
October 7, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied the claim for additional permanent partial disability benefits. The claimant argues she overcame the medical impairment rating of the Division-sponsored independent medical examination (DIME) physician as a matter of law because the DIME physician misapplied the AMA Guides. Alternatively, the claimant argues the burden of proof shifted to the respondents to establish the DIME physician's rating was correct. We affirm.
The claimant sustained a compensable back injury on January 19, 2000, and reached maximum medical improvement (MMI) on March 7, 2001. The claimant underwent a DIME on July 2, 2001, and the DIME physician issued an impairment rating on July 16, 2001. The rating was 29 percent as a whole person, and included ratings for the cervical, thoracic, and lumbar spine. The rating of the lumbar spine was 5 percent for a specific disorder and 2 percent for reduced range of motion (lumbar flexion).
Prior to undergoing the DIME, the claimant was examined by Dr. Rook on May 2, 2001. Dr. Rook assessed a 38 percent whole person impairment. This rating included a 5 percent impairment for a specific disorder of the lumbar spine and 13 percent impairment for reduced range of motion of the lumbar spine.
The claimant requested a hearing to overcome the DIME physician's impairment rating as it pertained to lumbar range of motion. At the hearing, Dr. Rook noted the DIME physician did not properly complete the ratings worksheet for lumbar range of motion because he failed to record measurements for T12 range of motion and sacral range of motion. According to Dr. Rook, this called into question the "validity" of the DIME physician's lumbar impairment rating and indicated the DIME physician failed to use the dual inclinometer method of measurement prescribed by the AMA Guides. (Tr. p. 47).
However, the ALJ found the claimant failed to overcome the DIME physician's impairment rating by clear and convincing evidence. In support, the ALJ found the DIME physician properly measured the claimant's lumbar range of motion by determining the T12 range of motion and the sacral range of motion for flexion, extension, and lateral flexion. Further, the ALJ found the DIME physician was able to verify the validity of these measurements by comparing them to the claimant's straight leg raising measurements. The ALJ concluded the DIME physician's failure to record some of the measurements on the worksheet did not prove the rating itself was incorrect. The ALJ also found that Dr. Rook's testimony was speculative with respect to the DIME physician's failure to use dual inclinometers.
The ALJ also noted that the DIME physician's measurements for cervical and thoracic range of motion were "very similar" to those of Dr. Rook and another physician. The ALJ inferred from these similarities that the DIME physician used the correct methodology when measuring lumbar range of motion.
I.
On review, the claimant argues the ALJ erred as a matter of law in finding the DIME physician's impairment rating was not overcome by clear and convincing evidence. The claimant argues the evidence establishes the DIME physician deviated from the AMA Guides when rating lumbar impairment, and no evidence supports the DIME physician's rating. We find no error.
The claimant correctly states that a DIME physician must rate the claimant's medical impairment in accordance with the provisions and protocols of the AMA Guides. Section 8-42-101(3.7), C.R.S. 2002; § 8-42-107(8)(c), C.R.S. 2002. The DIME physician's finding concerning the claimant's impairment rating is binding on the parties unless overcome by clear and convincing evidence. Section 8-42-107(8)(c).
Our courts have consistently held that the questions of 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. Wackenhut Corp. v. Industrial Claim Appeals Office, 17 P.3d 202 (Colo.App. 2000); McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo.App. 1999); Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Because these questions are factual, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. 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 resolution of conflicts in the evidence, credibility determinations., and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, supra.
Implicit in the appellate rulings is the recognition that not every deviation from the rating protocols of the AMA Guides warrants the conclusion that the rating itself has been overcome by clear and convincing evidence. Rather, proof of a deviation from the AMA Guides is some evidence which must be considered in the context of all other evidence in determining whether the rating has been overcome. Rivale v. Beta Metals, Inc., W.C. No. 4-265-360 (April 16, 1998), aff'd., Rivale v. Industrial Claim Appeals Office, (Colo.App. No. 98CA0858, January 28, 1999) (not selected for publication); Sutton v. Alpen Construction, W.C. No. 4-225-415 (April 1, 1997); aff'd., Sutton v. Industrial Claim Appeals Office, (Colo.App. No. 97CA0711, November 13, 1997) (not selected for publication).
Relying on the testimony of Dr. Rook, the claimant argues the record compelled the ALJ to find the DIME physician did not complete or report the range of motion measurements for lumbar impairment, and that the DIME physician violated the AMA Guides by failing to use the dual inclinometer method for rating lumbar impairment. However, viewing the evidence in a light most favorable to the claimant, we find there is substantial evidence to support the ALJ's conclusion that the claimant failed to overcome the rating.
It is true, as the ALJ found, that the DIME physician failed to record on the ratings worksheet certain measurements which are necessary in calculating lumbar range of motion impairment. However, that fact did not require the ALJ to conclude the required measurements were not done, or that they were done improperly. First, as the ALJ found, the DIME physician's measurements of cervical and thoracic impairment were nearly identical to those of Dr. Rook. This suggests that the DIME physician properly measured the claimant's lumbar impairment and did not engage in the sudden deviation argued for by the claimant. Moreover, the DIME physician's ratings worksheet indicates the DIME physician compared the lumbar range of motion measurements to the claimant's straight leg raising measurements and found the lumbar measurements were "valid" under the AMA Guides. This constitutes some evidence from which the ALJ reasonably inferred the DIME physician recognized and applied the correct rating methods and criteria, but simply failed to record all the data on the worksheet.
Moreover, the ALJ was unpersuaded by Dr. Rook's testimony that the DIME physician must have used the single inclinometer rather than the dual inclinometer method. Indeed, as the ALJ found, Dr. Rook testified he was "speculating" concerning the DIME physician's methodology, and admitted failure to record the data could have been the result of "laziness," not the DIME physician's use of the single inclinometer method. Further, on examination by the ALJ, Dr. Rook admitted that the DIME physician's measurements for lumbar flexion could be interpreted as either the result of a single inclinometer measurement, or a dual inclinometer measurement where the DIME failed to record T12 range of motion.
Finally, we note the claimant did not depose the DIME physician or call him to the stand at the hearing. Consequently, there is no direct evidence concerning the actual method which the DIME physician employed when measuring lumbar impairment.
We also disagree that the evidence does not support the ALJ's finding the claimant "merely had a different lumbar range of motion" on the days she was examined by the DIME physician and Dr. Rook. Although the claimant asserts there is no "reasonable nor persuasive" explanation for the 11 percent improvement in her lumbar range of motion rating between Dr. Rook's examination and the DIME, Dr. Swarsen testified the change may be explained, in part, by progressive improvement with time, and also by natural variances in the claimant's condition from one date to the next. (Swarsen depo. P. 65). It was for the ALJ to assess the weight of this evidence. Moreover, the claimant's assertion notwithstanding, this interpretation of the evidence is not inconsistent with MMI because MMI is not affected by the "possibility of improvement or deterioration resulting from the passage of time." Section 8-40-201(11.5), C.R.S. 2002.
It follows there was substantial evidence to support the ALJ's finding that the claimant failed to overcome the DIME physician's rating by clear and convincing evidence. The mere fact other findings were possible affords no basis for relief on appeal. Cf. Gonzales v. Browning Ferris Industries, W.C. No. 4-350-356 (March 22, 2000).
II.
The claimant next contends that, under the circumstances of this case, the burden of proof shifted to the respondents to demonstrate the propriety of the DIME physician's rating. The claimant reasons that because the DIME physician violated the mandates of the AMA Guides and applicable rules of procedure by failing properly to complete the worksheets, the burden should fall on the respondents to prove the DIME physician correctly rated the claimant. We reject this argument.
Nothing in § 8-42-107(8)(c) provides that the evidentiary weight of the DIME physician's finding of medical impairment automatically changes based on a determination that the DIME physician committed an error in completing a ratings worksheet or violated some other requirement of the AMA Guides. The courts have interpreted the statute as placing the burden of proof on the party seeking to overcome the DIME physician's rating. Lambert Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656 (Colo.App. 1998). In view of the statutory language, and considering the absence of any case law supporting the claimant's argument, we decline to read § 8-42-107(8)(c) as mandating the kind of burden shifting for which the claimant argues. See Humane Society of the Pikes Peak Region v. Industrial Claim Appeals Office, 26 P.3d 546 (Colo.App. 2001) (statutes should be given their plain and ordinary meanings and court should not read nonexistent provision into statute).
We also believe the claimant's proposed interpretation is contrary to the purposes underlying the statute. The DIME physician's rating is given special weight because it is presumed the DIME physician is not biased. A showing that the DIME committed some error in the ratings process does not necessarily contradict the unbiased nature of the opinion. Further, the DIME process was enacted to reduce litigation concerning permanent disability. The claimant's proposed interpretation would invite litigation by undermining the weight of the DIME's rating by making it easier to attack. See AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995).
Insofar as the claimant makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ's order dated May 2, 2002, is affirmed.
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed October 7, 2002 to the following parties:
Mary Ann Wilson, 7680 Maverick Rd., Colorado Springs, CO 80908
Doug Peden, Executive Director of Personnel, Falcon School District #49, 1085 Woodmen Rd., Falcon, CO 80831
Jan Brown, Western Guarantee Fund, 1720 S. Bellaire St., #408, Denver, CO 80222-4320
Steven U. Mullens, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
Jeffrey C. Fleischner, Esq., 1525 Josephine St., Denver, CO 80206 (For Respondents)
By: ______A. Hurtado_______