Opinion
W.C. No. 4-758-499.
August 13, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cain (ALJ) dated February 9, 2010 that denied permanent partial disability benefits. We affirm.
This matter proceeded to hearing to determine whether the parties overcame the impairment rating of a physician's Division-sponsored independent medical examination (DIME). The respondents sought to overcome the DIME physician's 15 percent whole person impairment rating and the claimant sought to overcome the absence of an impairment rating for her shoulder and low back. The ALJ determined that the respondents overcame the 15 percent impairment rating and that the claimant failed to overcome the lack of a rating for her shoulder and low back.
Several of the ALJ's findings of fact are summarized as follows. The claimant sustained compensable injuries in a motor vehicle accident that occurred on May 1, 2008. Dr. Ramaswamy treated the claimant. On September 11, 2008 Dr. Ramaswamy opined that the claimant's work-related conditions had resolved and further opined that the return of the claimant's headaches were not related to her accident. The claimant complained of and was treated for neck pain and headaches prior to her accident. The respondents filed a final admission of liability based upon Dr. Ramaswamy's zero percent impairment rating.
The claimant objected to the admission and Dr. Shenoi performed the DIME. Dr. Shenoi noted that after the accident the claimant's most consistent complaints were neck pain, "upper back," and headaches. Dr. Shenoi stated that it was impossible to fairly assess whether the accident resulted in permanent physical impairment or whether apportionment applied. Nonetheless, stating that she based her rating on insufficient information, the DIME physician assigned a 15 percent whole person impairment rating, which included four percent for cervical strain or sprain, nine percent for reduced cervical "ROM," and two percent for thoracic pain.
Dr. Ramaswamy testified credibly that a rating physician may not rate impairment when the physician cannot explain the relationship between the impairment and its alleged cause. Dr. Ramaswamy "credibly opined that the claimant's injury-related symptoms and conditions returned to baseline by MMI [maximum medical improvement] and did not warrant an impairment rating." The ALJ found that Dr. Ramaswamy's testimony was sufficient to overcome Dr. Shenoi's impairment rating by clear and convincing evidence.
Concerning the claimant's attempt to overcome the DIME physician's omission of any impairment rating for the claimant's shoulder and low back, the ALJ found a lack of credible or persuasive medical evidence that the claimant sustained such impairments because of the accident. The ALJ found that the claimant failed to overcome the DIME physician's rating by even a preponderance of the evidence.
The ALJ ordered that the respondents were relieved of liability for permanent partial disability benefits and dismissed the claim for those benefits.
The claimant asserts that the respondents failed to provide any evidence to overcome the DIME physician's impairment rating. In support of this contention the claimant argues that Dr. Ramaswamy relied on inaccurate range of motion estimates and that he effectively apportioned the claimant's impairments in violation of apportionment standards. We are not persuaded that the ALJ erred in determining that the respondents overcame the DIME physician's impairment rating.
The question whether a party has overcome the DIME by clear and convincing evidence is one of fact for the ALJ's determination. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). The standard of review is whether the ALJ's findings of fact are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S; Metro Moving Storage Co. v. Gussert, supra. 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. This standard of review is deferential and the scope of our review is "exceedingly narrow." Id.
The primary portions of Dr. Ramaswamy's testimony credited by the ALJ pertained not to range of motion measurements, but to the lack of a causal connection between the claimant's disabilities and her industrial accident. Although the claimant characterizes Dr. Ramaswamy's opinions as apportioning his impairments, the ALJ found persuasive Dr. Ramaswamy's opinion "that the medical evidence does not support the inference of a causal relationship between the [motor vehicle accident] and the impairment found by Dr. Shenoi." Findings of Fact, Conclusions of Law, and Order at 6, ¶ 20. Moreover, the ALJ credited Dr. Ramaswamy's opinion as to the need under the AMA Guides for a causal relationship between impairment and the industrial injury. Dr. Ramaswamy's reports and testimony support the ALJ's factual findings. Ramaswamy Depo. at 22, 27, 30, 32, 34-37, 51; Exhibit O.
The claimant also takes issue with the ALJ's determination that the claimant failed to overcome the DIME physician's failure to provide a rating for her shoulder and low back. The claimant argues that Dr. Shenoi incorrectly reported that the claimant did not consistently report back, shoulders, and knee complaints when the record provides documentation of frequent complaints of lumbar and right shoulder symptoms. According to the claimant the critical issue is not whether she sustained any ratable impairment of her shoulder and low back as discussed by the ALJ. Instead, the claimant asserts that the issue is whether the claimant complained enough about her symptoms to require the DIME physician to rate her shoulder and low back. We are not persuaded that the ALJ erred in upholding the DIME physician's lack of an impairment rating for the claimant's shoulder and low back.
The claimant essentially argues that her regular complaints about her shoulder and low back warrant the conclusion that she is entitled to corresponding impairment ratings. However, the ALJ found there was "no credible or persuasive evidence from any physician that the claimant sustained impairment of the shoulder or low back as a result of the [motor vehicle accident.]" The ALJ credited the absence of complaints from the records of Drs. Shenoi and Ramaswamy. The ALJ stated that "[t]o the extent the claimant reported shoulder and low back symptoms to other providers . . . the claimant has not shown that any of these physicians opined that the [motor vehicle accident] was the cause of such impairment." Findings of Fact, Conclusions of Law, and Order at 6, ¶ 21. We may not substitute our judgment by reweighing the evidence in an attempt to reach inferences different from those the ALJ drew from the evidence. See Sullivan v. Industrial Claim Appeals Office, 796 P.2d 31, 32-33 (Colo. App. 1990) (reviewing court is bound by resolution of conflicting evidence, regardless of the existence of evidence which may have supported a contrary result); Rockwell Int'l v. Turnbull, 802 P.2d 1182, 1183 (Colo. App. 1990) (ALJ, as fact-finder, is charged with resolving conflicts in expert testimony). Given the ALJ's consideration of the evidence we find no basis for disturbing his determination that the claimant failed to establish any entitlement to additional impairment ratings.
IT IS THEREFORE ORDERED that the ALJ's order dated February 9, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_________________________________ John D. Baird
_________________________________ Curt Kriksciun
CHRISTINA MAVIAN, Attn: CHRISTINA COURTNEY, UNION, KY, (Claimant).
AURORA PUBLIC SCHOOLS, Attn: JULIE MESKIMEN, C/O: ADAMS-ARAPAHOE SCHOOL DISTRICT 28j, AURORA, CO, (Employer).
JOINT SCHOOL DISTRICT, Attn: PAULA LOWDER, C/O: CCMSI, GREENWOOD VILLAGE, CO, (Insurer).
LAW OFFICE OF DAVID R. CALVERT, Attn: DAVID CALVERT, ESQ., ENGLEWOOD, CO, (For Claimant).
NATHAN, BREMER, DUMM MYERS, PC, Attn: ANNE SMITH MYERS, ESQ., DENVER, CO, (For Respondents).