Opinion
W.C. No. 4-467-433
August 30, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) which denied permanent partial disability benefits. The claimant contends the ALJ erroneously determined the respondents overcame the Division-sponsored independent medical examination (DIME) physician's medical impairment rating. We disagree and, therefore, affirm.
In May 2000 the claimant suffered an admitted injury when he tripped over a rack and fell on his back. As a result of the fall, the claimant experienced immediate pain in his low back, right shoulder, neck and scapular region. The injuries were treated conservatively until September 19, 2000, when Dr. Fall placed the claimant at maximum medical improvement (MMI) with zero permanent impairment.
On March 29, 2001, the claimant underwent a DIME by Dr. Gerber who assigned a 5 percent whole person impairment rating for a specific disorder of the lumbar spine under Table 53II(b) of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides). The DIME also assigned a 10 percent rating for range of motion deficits in the lumber spine. However, the DIME physician did not provide a worksheet showing the claimant's straight leg raise test results before assigning the rating for impaired range of motion.
The claimant was subsequently evaluated by Dr. Beatty. Dr. Beatty opined the DIME physician erroneously assigned a rating for valid range of motion measurements without submitting a worksheet showing straight leg raise test results. Dr. Beatty also opined the claimant demonstrated symptom magnification to a degree that it was impossible to assign any impairment rating, including a rating under Table 53II(b).
Crediting the opinions of Dr. Fall and Dr. Beatty, the ALJ found the respondents overcame the DIME physician's rating. Also relying on evidence the claimant's subjective complaints outweighed his objective injuries and the claimant demonstrated significant symptom magnification, the ALJ determined the claimant had zero measurable permanent impairment. Consequently, the ALJ denied permanent partial disability benefits.
On review, the claimant contends the ALJ misapplied the law by failing to give presumptive effect to the DIME physician's rating, and merely deciding that the existence of two opposing medical opinions was sufficient to reject the DIME physician's rating. Further, the claimant contends the ALJ's findings are insufficient to permit appellate review because the ALJ failed to articulate the basis for her credibility determinations. We reject these arguments.
Section 8-42-107(8)(c), C.R.S. 2001, requires the DIME physician to determine the claimant's permanent medical impairment in accordance with the AMA Guides. Once determined the DIME physician's rating is presumed to be correct. However, the General Assembly recognized that the AMA Guides are often subject to more than one interpretation and that reasonable physicians may disagree about their application to a particular clinical case. Therefore, § 8-42-107(8)(c) allows a DIME physician's rating to be overcome by "clear and convincing evidence." Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). "Clear and convincing evidence" is 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); Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979).
Contrary to the claimant's contentions, the ALJ's order reflects her awareness and application of the proper legal standard. The ALJ expressly recognized that the DIME physician's opinion was entitled to special weight and that the party disputing the DIME physician's rating had the burden to present evidence that it was highly probably the DIME physician's rating was incorrect. (Conclusions of Law 1, 2).
Moreover, the ALJ's findings amply articulate the basis for her finding that the respondents sustained their burden of proof. ( See Conclusions of Law 3). The ALJ explicitly relied on the medical reports of Dr. Beatty and Dr. Fall, which she found were "highly reliable and credible." (Finding of Fact 15). The ALJ also determined Dr. Beatty was able to point out "at least two ways" Dr. Gerber's rating was inconsistent with the AMA Guides. Consequently, the ALJ's findings are sufficient to permit appellate review. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992) (ALJ need only make findings on evidence deemed persuasive and determinative).
Because the pertinent issue is factual in nature, we must uphold the ALJ's findings if supported by substantial evidence in the record. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998). Under this standard the ALJ is inherently authorized to assess the probative weight of the various medical evidence. In fact, if the ALJ were bound by the DIME physician's opinions, the statutory right to a hearing to overcome the DIME physician's rating would be meaningless. Thus, we reject the claimant's contention the ALJ was precluded from giving greater weight to the opinions of Dr. Beatty and Dr. Fall than the opinions of the DIME physician.
Further, the ALJ's credibility determinations are binding, except in an extreme situation where the credited testimony is rebutted by such hard, certain evidence that it would be an error as a matter of law to believe the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). We conclude that no extreme circumstances exist here.
There was a direct conflict between Dr. Fall, Dr. Beatty and the DIME physician concerning the proper application of the AMA Guides to the claimant's injury. The ALJ found the opinions of Dr. Fall and Dr. Beatty rose to the level of clear and convincing evidence that Dr. Gerber probably erred in assigning a 15 percent medical impairment rating. Because Dr. Fall and Dr. Beatty's opinions were corroborated by each other, diagnostic test results and even Dr. Gerber's clinical observations, we cannot say this claim involves the extreme circumstances contemplated by Halliburton.
We may not substitute our judgment for that of the ALJ concerning the probative value and sufficiency of the medical evidence she found persuasive and decline the claimant's invitation to do so. See City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993). Therefore, we may not disturb the ALJ's credibility determinations.
The claimant's remaining arguments have been considered and are unpersuasive. Although Dr. Gerber assigned a 5 percent rating under Table 53 II(b) of the AMA Guides, based on at least six month of chronic low back pain, Dr. Fall placed the claimant at MMI within 4 months of the injury and assigned no rating for a specific disorder of the lumbar spine. Further, the record contains evidence the claimant reported subjective complaints out of proportion to objective findings during the functional capacity evaluation, and both Dr. Beatty and an orthopedic surgeon reported the claimant demonstrated numerous Waddell signs, (Rehabilitation Medicine Specialists. Ltd. September 19, 2000). Based on this evidence the ALJ could reasonably infer that the claimant's reports of chronic low back were not a true reflection of the permanent effects of the industrial injury for purposes of rating impairment under Table 53II(b). Cf. Wackenhut Corporation v. Industrial Claim Appeals Office, 17 P.3d 202 (Colo.App. 2000) (rating of impairment includes assessment of data collected during clinical evaluation and comparison of those data to criteria in AMA Guides)
IT IS THEREFORE ORDERED that the ALJ's order dated November 23, 2001, 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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed August 30, 2002 to the following parties:
Moises Rodriguez, 645 Wolff St., Apt. 328, Denver, CO 80204
Domino's Pizza, 8031 E. Colfax Ave., Denver, CO 80220-2034
Rose Perez, Domino's Pizza, Inc., 200 E. Sand Point Ave., #700, Santa Ana, CA 92707
American Home Assurance, c/o Gloria Molinar, AIG Claim Services, P. O. Box 32130, Phoenix, AZ 85064
Clara N. R. Romero, Esq., 745 Federal Blvd., Denver, CO 80204 (For Claimant)
W. Berkeley Mann, Jr., Esq. and Margaret R. Curry, Esq., P. O. Box 22833, Denver, CO 80222 (For Respondents)
BY: A. Hurtado