Opinion
W.C. No. 4-493-324
August 12, 2002.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which awarded permanent partial disability benefits based on medical impairment of 5 percent of the whole person. The claimant contends the ALJ erred in finding the claimant failed to overcome the rating of the Division-sponsored independent medical examination (DIME) physician by clear and convincing evidence. We affirm.
The claimant sustained a compensable back injury on January 16, 2001. In February 2001, the claimant underwent an MRI. The radiologist read the MRI as indicating a "bulging of the annulus fibrosus" at L4-5 with "lateral recess and displacement of the right L-5 nerve." The MRI also revealed a small tear in the annulus fibrosus at L3-4, and a small herniated disc at T12-L1.
After a course of conservative therapy and injections, the treating physician placed the claimant had maximum medical improvement (MMI) on May 31, 2001. The treating physician found the claimant sustained permanent medical impairment of 11 percent of the whole person based on reduced range of motion in the lumbosacral spine. In his deposition the treating physician amended the rating to include 7 percent impairment for a specific disorder of the lumbar spine under Table 53 II C of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides).
The claimant underwent a DIME on the issue of medical impairment. The DIME physician assessed a 5 percent whole person rating based on a specific disorder of a lumbar spine under Table 53 II B of the AMA Guides. The DIME physician noted the claimant demonstrated valid lumbar range of motion measurements which would equate to 14 percent impairment of the whole person. However, the DIME physician declined to include the range of motion impairment because he found it was inconsistent with the claimant's clinical presentation.
That ALJ found the claimant failed to overcome the DIME physician's rating by clear and convincing evidence. In so doing, the ALJ credited the testimony of the DIME physician that the claimant's clinical presentation warranted disregard of the range of motion measurements. The ALJ also credited the testimony of the DIME physician that the MRI findings justify a 5 percent rating for specific disorders under Table 53 II B, not a 7 percent rating under Table 53 II C.
I.
On review the claimant first contends the ALJ erred in determining that he failed to overcome the DIME physician's finding that the valid range of motion measurements should not be included in the impairment rating. Citing our decision in Otero v. St. Mary Corwin Hospital, W.C. No. 4-346-007 (November 9, 1999) ( Otero I), the claimant argues the AMA Guides require use of valid range of motion of measurements in computing impairment. We find no error.
The DIME physician's rating of medical impairment is a binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(c), C.R.S. 2001. The DIME physician's rating must be determined in accordance with the AMA Guides. Section 8-42-107(8)(c). The questions of whether the DIME physician properly applied the AMA Guides in arriving at the rating, and ultimately whether the rating was overcome, are questions of fact for determination by the ALJ. McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo.App. 1999).
Because the issues are factual nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. This standard of review requires us to 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, 914 P.2d 411 (Colo.App. 1995).
The claimant's argument notwithstanding, the ALJ was not compelled to find the DIME physician deviated from the AMA Guides by declining to include impairment for the valid range of motion measurements. In Wackenhut Corp. v. Industrial Claim Appeals Office, 17 P.3d 202 (Colo.App. 2000), the court stated that under the AMA Guides a clinical evaluation includes information obtained by history and by clinical findings from examination, tests and functional measurements. The Wackenhut court further noted that the AMA Guides state that an " [e]valuation or rating of impairment is an assessment of data collected during a clinical evaluation and the comparison of those data to the criteria contained in the Guides." (Emphasis in original) 17 P.3d at 204.
Here, the DIME testified that his rating was issued in accordance with the AMA Guides. Further, he explained that the valid range of motion measurements obtained by the physical therapist were inconsistent with the much more limited range of motion which the claimant exhibited on clinical examination. Moreover, the DIME physician noted the claimant exhibited non-physiologic complaints suggestive of symptom magnification.
Under these circumstances, the ALJ logically inferred that the DIME physician acted in accordance with the AMA Guides in disregarding the range of motion measurements when assessing the impairment rating. It is true the treating physician gave testimony which might have supported a contrary result, but the treating physician also conceded that clinical observations may justify disregard of otherwise valid range of motion measurements. The mere existence of conflicting evidence affords no basis for concluding the ALJ erred in finding the claimant failed to overcome the DIME physician's rating. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
Neither does our decision in Otero I mandate a different result. Otero I was based on the evidence presented in that case, and in Otero I the DIME physician testified that the AMA Guides do not permit a rating physician to disregard valid range of motion measurements. No such testimony was given in this case. On the contrary, the DIME physician testified he acted in accordance with the AMA Guides based on his examination of the claimant. Because the proper application of the AMA Guides in any given situation is a factual matter, Otero I is not authority for a different result here. We also note the Otero case was ultimately decided adversely to the claimant because the claimant failed to overcome the DIME physician's finding that the reduced range of cervical motion was not causally related to the industrial injury. See Otero v. St. Mary Corwin Hospital, W.C. No. 4-346-007 (May 4, 2000), aff'd., Otero v. Industrial Claim Appeals Office, (Colo.App. No. 00CA0963, November 3, 2000) (not selected for publication).
II.
The claimant next contends the ALJ erred by failing to find the DIME physician's application of Table 53 II B was overcome by clear and convincing evidence. The claimant cites the testimony of the treating physician that the claimant's MRI is consistent with moderate to severe degenerative changes, including a herniated disc, and the claimant is entitled to a seven percent rating under Table 53 II C. The claimant also argues the DIME physician did not review the MRI image itself. We are not persuaded.
The treating physician testified that he based the seven percent rating primarily on the fact that the MRI showed a herniated disc at L4-5 which was impinging on the nerve root. (Treating Physician's depo. p. 48). The DIME physician testified the determination of whether a herniation was present or merely a "bulge" is a subjective determination partially dependent on other factors, including the fact that the prior EMG tests were negative for radiculopathy. Based on the totality of the circumstances, the DIME physician concluded the claimant's presentation was not consistent with any "specific lumbar pathology" and that the 5 percent rating is appropriate. (DIME physician's depo. pp. 9-10).
Under these circumstances, the record did not compel the ALJ to find the claimant overcame the DIME physician's rating by clear and convincing evidence. Rather, as the ALJ found, there was conflicting expert opinion concerning a discretionary interpretation required by Table 53. The weight to be assigned the expert opinions was a matter for the ALJ, and we may not interfere with his decision. Section 8-43-301(8). The fact the DIME physician did not review the MRI films went to his credibility. In fact, we note the treating physician also testified that he did not review the MRI images, but only the report. (Treating physician's depo. p. 49).
IT IS THEREFORE ORDERED that the ALJ's order dated March 14, 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. 2001. 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 August 12, 2002 to the following parties:
Leticia Garcia, c/o Ernest White, 3040 E. Fountain Blvd., #306, Colorado Springs, CO 80910
John Szostak, Merry Maids, 5741 Constitution Blvd., Colorado Springs, CO 80915
American Home Assurance, c/o AIG Claim Services, Inc., P. O. Box 32130, Phoenix, AZ 85064-2130
Renee C. Ozer, Esq., 25 N. Cascade Ave., #215, Colorado Springs, CO 80903 (For Claimant)
Christina Middendorf Smith, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
By: A. Hurtado