Opinion
W.C. No. 4-797-234.
December 7, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Henk (ALJ) dated June 16, 2011, that awarded a 19% permanent impairment rating of his lower right extremity and which was based, in part, on the range of motion for his non-injured left lower extremity. We affirm.
The following facts are taken from the record and the ALJ's order. The claimant worked as a cattle driver for the employer. As the claimant attempted to load cattle into a trailer, one of the cows kicked the claimant in his upper right thigh. The claimant sustained a contusion to his thigh and femoral neuropathy.
Dr. Caton was the claimant's authorized treating provider. In her report, Dr. Caton provided a permanent impairment rating using the AMA Guides 3rd Edition Revised. Dr. Caton subtracted the left hip motion of 7%, gave the claimant a 16% loss of range of motion for the right hip, and a 4% scheduled impairment rating for motion of the claimant's femoral nerve impairment, which combined to a 19% scheduled impairment rating. Dr. Caton used the contralateral uninjured left leg range of motion in assessing the claimant's permanent impairment rating. Respondents' Hearing Exhibit I at 30-31.
Dr. Green performed a division independent medical examination. In his report, Dr. Green stated that he based the claimant's permanent medical impairment rating on the AMA Guides, 3rd Edition Revised. Dr. Green stated that he measured the claimant's contralateral left hip range of motion and used these as the standard for the claimant's normal range of motion. Dr. Green gave the claimant a 19% scheduled permanent impairment rating of his lower extremity. Respondents' Hearing Exhibit G at 24.
The respondents filed a final admission of liability, admitting to Dr. Green's 19% scheduled impairment rating. The claimant subsequently filed an application for hearing, listing as issues to be heard, permanent partial disability and apportionment.
Dr. Roth performed an independent medical examination on behalf of the respondents. During his deposition, Dr. Roth testified that he is aware that in all of the AMA Guides courses, and Level II courses that go along with training for use of the AMA Guides, a common principle is the use of contralateral measurements in assessing impairment ratings. Roth Depo. at 37-38. He also testified that the impairment rating tips also discuss when or when not to use the contralateral measurements when assessing an impairment rating. Roth Dep. at 37-40. In explaining that the contralateral joint is a better representative of the claimant's preinjury state than the AMA Guides population norms, Dr. Roth quoted the Desk Aid. Roth Depo. at 39-40.
On June 16, 2011, the ALJ entered her findings of fact, conclusions of law, and order. In finding that the claimant sustained permanent partial disability of 19% of the right lower extremity, the ALJ found to be credible and persuasive, the opinions of the DIME, Dr. Green, and Dr. Caton. The ALJ further found that the claimant failed to meet his burden of proving entitlement for additional PPD benefits. The ALJ found that Dr. Green and Dr. Caton measured the contralateral left hip range of motion and used this as the standard for what would be normal range of motion for the claimant's right hip. She further found that both Dr. Green and Dr. Caton followed the Level II curriculum when performing the contralateral range of motion. Conclusions of Law at 8 ¶ 7. The ALJ found that use of the contralateral process in assessing the claimant's impairment rating did not violate the AMA Guides, 3rd Edition Revised, or the Workers' Compensation Act or Rules. Findings of Fact at 3 ¶ 10, at 4 ¶ 12. The ALJ also noted that there has been no apportionment of the claimant's scheduled permanent impairment rating. Order at 9 ¶ 1.
On review, the claimant argues that the ALJ erred in reducing the claimant's right lower extremity impairment rating by considering the range of motion in his left non-injured lower extremity. The claimant specifically argues that Desk Aids are not legal authority and cannot be relied upon for reducing benefits to injured workers since they have not been subject to the appropriate notice and comment as required for rulemaking. Citing to § 8-42-104(5)(b), C.R.S., the claimant contends that reducing benefits pursuant to contralateral measurements creates a reduction of benefits that is not contemplated by the Act or the Regulations. The claimant also asserts that his due process rights have been denied since the Desk Aid has not been subject to the appropriate notice and comment as required for rulemaking. Thus, the claimant contends that he instead is entitled to an award of PPD benefits in the amount of 23%. We perceive no error.
The American Medical Association Guides to the Evaluation of Permanent Impairment (3d ed. 1991) (AMA Guides) has been adopted as the guideline for determining "impairment ratings as a percent of the whole person or affected body part." Section 8-42-101(3.5)(a)(II), C.R.S. Whether the AMA Guides have been applied properly is a question of fact for determination by the ALJ. See Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). Consequently, we must uphold the ALJ's determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. Application of the substantial evidence test requires that we defer to the ALJ's assessment of the probative value of the evidence and his resolution of conflicts in the record. Metro Moving Storage v. Gussert, supra.
Although the impairment rating tips are not part of the AMA Guides, they may be relevant to the impairment rating under consideration by the ALJ. A physician's application of those tips when assessing an impairment rating, goes to the weight the ALJ gives to an impairment rating. Ortiz v. Service Experts, Inc., W.C. No. 4-657-974 (January 22, 2009) (ALJ credited impairment rating of physician applying impairment rating tips).
Moreover, the weight and credibility to be assigned expert medical opinion is a matter within the fact-finding authority of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). The ALJ may accept all, part, or none of the testimony of a medical expert. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968); see also Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo. App. 1992) (ALJ may credit one medical opinion to the exclusion of a contrary medical opinion).
Here, we are not persuaded that the ALJ erred in ruling that the claimant sustained a 19% permanent impairment to his right lower extremity. As detailed above, Dr. Caton and Dr. Green applied both the AMA Guides, 3rd Edition Revised and the impairment rating tips when assessing the claimant's impairment rating. Further, Dr. Roth testified that he is aware that in all of the AMA Guides courses, and Level II courses that go along with training for use of the AMA Guides, a common principle is the use of contralateral side measurements in assessing impairment ratings. Roth Depo. at 37-38. The ALJ found as credible and persuasive the opinions of Dr. Caton, Dr. Green, and Dr. Roth. Conclusions of Law at 8 ¶¶ 7, 9. At a minimum, the ALJ was entitled to give the impairment rating tips, as applied by Dr. Caton and Dr. Green, the weight she considered appropriate under the circumstances. It was the ALJ's prerogative to weigh the evidence and to credit the medical expert opinions. See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo. App. 1999); see also Davis v. Mohawk Industries, Inc., W.C. No. 4-674-003 (July 21, 2011).
We also agree with the ALJ that the use of a contralateral measurement in assessing the claimant's permanent impairment rating did not violate the AMA Guides, 3rd Edition Revised, or the Workers' Compensation Act or Rules. While the AMA Guides, 3rd Edition Revised does not comment on contralateral measurements for assessing impairment, we conclude that it also is proper to look to the director's impairment rating tips for purposes of assessing a claimant's permanent impairment rating. See Sanco Industries v. Stefanski, 147 P.3d 5 (Colo. 2006) (extending deference to Workers' Compensation Division's interpretation of the Act as set forth in Interpretive Bulletin).
Pursuant to the director's impairment rating tips, the contralateral joint is a better representation of the patient's pre-injury state than the AMA Guides population norms in some cases. Desk Aid #DK11, Impairment Rating Tips (Rating Extremities Using the Contralateral Joint). We further note that pursuant to § 8-42-101(3.5)(b), C.R.S., the Director of the Division of Workers' Compensation (Director) shall maintain the impairment rating system. The regulatory interpretations of the Director generally are entitled to a degree of deference. See Lenox v. United Airlines, W.C. No. 4-616-469 (June 2, 2006) (affording "great weight" to director's interpretive bulletin on AMA Guides). We also note that the use of contralateral measurements to assess permanent impairment does not violate the Rules. In fact, W.C. Rule of Procedure 17, Exhibit 6 (C)(1)(c), Code Colo. Reg. 1101-3, provides that physical examination of a joint should begin with examination of the uninjured limb.
Additionally, to the extent that the claimant argues that § 8-42-104(5)(b), C.R.S., precludes reliance on the use of the contralateral approach when assessing the claimant's impairment rating, we conclude that this provision of the Act is inapplicable under the facts and circumstances presented here. Section 8-42-104(5)(b), C.R.S., by its own terms, applies when an employee has a non-work-related previous permanent impairment. Therefore, the apportionment statute applies when purporting to determine the relative contributions of occupational and non-occupational factors to a particular component of the claimant's overall impairment. Here, in contrast, the recommended use of a contralateral measurement is a method to calculate impairment caused by the injury in the first instance. This procedure is not an apportionment pursuant to § 8-42-104(5)(b), C.R.S. because it does not deduct any prior permanent medical impairment.
Whether the apportionment statute is applicable is ultimately a question of fact. Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo. App. 1999). As found and ordered by the ALJ, and as is supported by the record, there was no apportionment of the claimant's scheduled permanent impairment rating. Findings of Fact at 3 ¶ 10; at 4 ¶ 12; Order at 9 ¶ 1; Tr. at 9.
Moreover, we are not persuaded by the claimant's argument that his due process rights were violated since the Desk Aid has not been subject to the appropriate notice and comment as required for rulemaking. Section 24-4-103(1), C.R.S. specifically provides the procedure for agencies to follow when making rules. That provision specifically states as follows:
When any agency is required or permitted by law to make rules, in order to establish procedures and to accord interested persons an opportunity to participate therein, the provisions of this section shall be applicable. Except when notice or hearing is otherwise required by law, this section does not apply to interpretative rules or general statements of policy, which are not meant to be binding as rules, or rules of agency organization. (emphasis added)
Despite the claimant's argument to the contrary, the Director issues advisories or guidelines to provide guidance regarding the practical applications of the Act. See generally Peabody v. Select Medical Corporation, W.C. No. 4-677-703 (June 08, 2009). The impairment rating tips contained in the Desk Aid are merely guidance regarding the assessment of permanent impairment ratings. It is not binding as a rule of the Division. Consequently, we conclude that reliance on the Desk Aid did not violate the claimant's due process rights.
IT IS THEREFORE ORDERED that the ALJ's order dated June 16, 2011, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Brandee DeFalco-Galvin
____________________________________ Kris Sanko
BRAD KURTZ, 21016 WCR 80, EATON, CO, (Claimant).
JBS CARRIERS, 2600 2ND AVENUE, GREELEY, CO, (Employer).
ZURICH AMERICAN INSURANCE COMPANY, Attn: MS. KASEY TROUTMAN, C/O: GALLAGHER BASSETT SERVICES, ENGLEWOOD, CO, (Insurer)
KAPLAN MORRELL, LLC, Attn: BRITTON MORRELL, ESQ., GREELEY, CO, (For Claimant).
THOMAS POLLART MILLER, LLC, Attn: EMILY F. AHNELL, ESQ., 5600 S. QUEBEC STREET, GREENWOOD VILLAGE, CO, (For Respondents).