Opinion
W.C. No. 4-757-065.
August 13, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated April 6, 2010 that determined that the claimant failed to overcome the DIME and that therefore denied the claim for additional permanent partial disability benefits. We affirm.
A hearing was held on the issues of the claimant's entitlement to medical benefits and whether he had overcome the report of the Division-sponsored independent medical examination (DIME) stating that he had no cervical impairment. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant sustained a compensable injury on April 14, 2008 when he was involved in a motor vehicle accident. He was treated at Memorial Hospital's emergency facility and underwent a CT scan of his cervical spine, his head, chest and pelvis, and an MRI of his cervical and thoracic spine, and his abdomen. The diagnostic tests did not reveal any injury. Dr. Schwender treated the claimant with conservative measures beginning on May 1, 2008, and diagnosed cervical, thoracic and lumbar strains. He found the claimant's cervical range of motion to be from 60 to 70 percent of normal and found no tenderness at the paracervical muscles and only minimal tenderness at the cervical spinous process. On August 4, 2008 the claimant visited the emergency facility complaining of low back pain. The claimant was referred to Dr. Sandell for purposes of managing his medications, and Dr. Sandell examined the claimant's cervical and thoracic spine and reported that "all ranges appeared to be functional." The claimant underwent a functional capacities examination on December 29, 2008, and on the pain diagram completed by the claimant as part of the testing, he did not indicate any history of or existing neck pain. Dr. Schwender placed the claimant at maximum medical improvement on December 30, 2008 and evaluated his permanent impairment as equaling 27 percent of the whole person. At the request of the respondents the claimant underwent an independent medical examination, which was performed by Dr. Lesnak. Dr. Lesnak opined that Dr. Schwender had erroneously rated impairment of the claimant's cervical spine because the claimant had no anatomic abnormality and "merely suffered myofascial pain." Dr. Bisgard performed a DIME on May 10, 2009, and reported that the claimant had "normal, functional range of motion" of the cervical spine. Dr. Bisgard stated that the only impairment sustained by the claimant was to his low back and was equal to 12 percent of the whole person. She specifically stated that it was not appropriate given the absence of pathology to assign an impairment rating to the claimant's neck. The ALJ also credited the testimony of Dr. Lesnak that the claimant's neck condition did not warrant an impairment rating under the AMA Guides' requirement of a medically documented injury with six months of documented pain and rigidity with or without spasm. Dr. Lesnak agreed with the DIME physician that no impairment rating of the claimant's cervical spine was appropriate under the AMA Guides. Additionally, we note that the ALJ entered factual findings concerning the disputed issue whether the claimant's gastro-intestinal problems were related to his compensable injury. However, no party has appealed the ALJ's order in that respect and it is unnecessary for us to set forth those findings.
As he is required to do, the ALJ weighed the competing evidence and testimony and assessed its probative value. Based upon his resulting factual findings, the ALJ concluded that the claimant had failed to carry his burden of showing that the DIME report regarding cervical impairment was overcome by clear and convincing evidence.
The claimant appealed the ALJ's order and argues that the ALJ erred in concluding that he had failed to overcome the DIME report by clear and convincing evidence. Specifically, he argues that the DIME physician failed to comply with the AMA Guides to the Evaluation of Permanent Impairment because she did not evaluate the claimant's cervical "rigidity." The claimant also argues that the DIME report lacks a "sufficient factual basis" and therefore was overcome by the claimant's evidence. We are unpersuaded that the ALJ committed reversible error.
The DIME physician's medical impairment rating is binding unless overcome by "clear and convincing evidence." Section 8-42-107(8)(c), C.R.S.; Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 414 (Colo. App. 1995). Clear and convincing evidence is defined as evidence which is stronger than a preponderance, is unmistakable and is free from serious or substantial doubt. DiLeo v. Koltnow, 200 Colo. 119, 613 P. 2d 318 (1980). In other words, in order to overcome the DIME report, there must be evidence which proves that it is highly probable that the DIME physician's opinions are incorrect. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995).
The question whether the party challenging the DIME physician's rating has overcome the report by clear and convincing evidence is one of fact for determination by the ALJ. McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo. App. 1999); Metro Moving and Storage Co. v. Gussert, supra. Consequently, we must uphold the ALJ's resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, supra. The substantial evidence test requires us to view the evidence in a light most favorable to the prevailing party, and to defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the record. Metro Moving and Storage Co. v. Gussert, supra. Finally, resolving conflicting inferences which could be drawn from the DIME physician's rating is solely in the ALJ's discretion. Metro Moving Storage Co. v. Gussert, supra. This standard of review is deferential and the scope of our review is "exceedingly narrow." Id.
It is true, as the claimant asserts, that whether the DIME physician complied with the AMA Guides is a factor that may be considered by the ALJ in determining whether the report is overcome. Kirschenman v. Eastman Kodak, W.C. No. 4-361-035 (July 31, 2000); Rivale v. Beta Metals, Inc., W.C. No. 4-265-360 (April 16, 1998). However, given the substantial evidence standard of review, which we are statutorily required to apply, the relevant question on appeal is not whether the DIME physician deviated from the protocols of the AMA Guides in performing her evaluation of the claimant's impairment. Even assuming that she did so, we would then need to infer that her deviation renders it "highly probable" that her report is incorrect. That, in turn, would require us to reweigh the entire factual record and draw inferences different from those reached by the ALJ. We may not do so, and we note that the ALJ's determinations regarding whether a DIME report has been overcome remain largely factual ones. If the ALJ's factual findings are supported by substantial evidence and reasonable inferences from the record and if the findings, in turn, support the ALJ's legal conclusions drawn from the applicable law, then we may not disturb the order.
In any event, whether the DIME physician properly applied the AMA Guides in evaluating the claimant's permanent impairment is, itself, a question of fact and not one of law. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003). Here, it is evident from the ALJ's order that he was unpersuaded that the DIME physician deviated from the protocols of the AMA Guides to the extent necessary to render it "unmistakable" and "free from serious or substantial doubt" that the doctor's opinions were incorrect. In this regard, the ALJ credited Dr. Lesnak's testimony that Dr. Schwender had failed to detect any rigidity in the claimant's cervical spine. The ALJ also credited Dr. Lesnak's opinion that no rating of the neck was warranted partly because there had not been a history of six months of pain and rigidity. Further, the ALJ credited the DIME physician's statement that on "physical examination" of the claimant's neck there was no "pathology." The DIME physician herself noted that upon examination of the claimant's neck "[h]e appeared to have normal, functional range of motion of his cervical spine" and she diagnosed his condition as a cervical strain, "essentially resolved." Respondents' Exhibit Z (DIME report of Dr. Bisgard) at 5, 6.
Here, the ALJ weighed the conflicting medical testimony and expressly credited the opinions of Dr. Lesnak and Dr. Bisgard, and, conversely, he rejected the contrary opinions of Dr. Schwender and the claimant's independent medical examiner, Dr. Hall. Given the ALJ's assessment of the relative probative weight of the competing evidence, by which we are bound, the medical record contains ample evidence supporting the ALJ's factual findings. Accordingly we reject the claimant's argument that the record compels the conclusion that the DIME doctor's report was overcome by clear and convincing evidence.
IT IS THEREFORE ORDERED that the ALJ's order dated April 6, 2010, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_________________________________ Curt Kriksciun
_________________________________ Thomas Schrant
KEVIN R HARDGRAVE, COLORADO SPRINGS, CO, (Claimant).
TRIUMPH AUTO GLASS, COLORADO SPRINGS, CO, (Employer).
ZURICH AMERICAN INSURANCE, Attn: SHARON LOVELACE, SHAWNEE MISSION, KS, (Insurer).
MCDIVITT LAW FIRM, P.C., Attn: MATTHEW GIZZI, ESQ., COLORADO SPRINGS, CO, (For Claimant).
THE KITCH LAW FIRM, P.C., Attn: MARSHA A. KITCH, ESQ., EVERGREEN, CO, (For Respondents).