Opinion
W.C. No. 4-497-976.
November 10, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) insofar as it found the claimant is entitled to permanent partial disability benefits based on impairment of 7 percent of the whole person. The claimant contends the ALJ erred in finding the respondent overcame the range of motion (ROM) impairment assigned by the Division-sponsored independent medical examination (DIME) physician. We affirm.
The claimant sustained a compensable back injury in February 2001. The claimant was placed at maximum medical improvement (MMI) in June 2002.
On August 16, 2002, the claimant underwent an IME by Dr. Yamamoto, a physician of the claimant's own choosing. Dr. Yamamoto assigned 7 percent impairment for specific disorders of the thoracic and lumbar spine, and 13 percent impairment for reduced ROM in the thoracic and lumbar spine (6 percent thoracic combined with 8 percent lumbar). Thus, Dr. Yamamoto's overall rating was 24 percent whole person. The claimant also underwent an impairment rating by Dr. van den Hoven, a physician designated by the treating physician. Dr. van den Hoven assigned 7 percent impairment for a specific disorder of the lumbar spine and 20 percent impairment for reduced ROM of the lumbar spine. Thus, Dr. van den Hoven's overall rating was 26 percent whole person impairment. Finally, the claimant underwent the DIME. The DIME physician rated a 7 percent impairment for a specific disorder of the lumbar spine and 13 percent impairment for reduced ROM in the lumbar spine.
The respondent sought a hearing to overcome the DIME physician's impairment rating. The respondent presented the report and testimony of Dr. Roth. Insofar as pertinent, Dr. Roth testified that the DIME physician's ROM impairment rating was not consistent with the AMA Guides. Specifically, Dr. Roth stated that the AMA Guides require ROM impairment ratings to be measurable, reproducible and consistent over time. Further, if the patient's medical records indicate a disparity in the ratings, § 1.2 of the AMA Guides requires the rating physician to "reconcile" the differences before assigning a final impairment rating. Dr. Roth opined the claimant's ROM impairment ratings were disparate and that, because there was no reconciliation, the DIME physician's ROM impairment rating was neither reliable nor useful.
The ALJ found the respondent failed to overcome the DIME physician's rating with respect to a specific disorder of the lumbar spine, but overcame the ROM impairment rating by clear and convincing evidence. In support, the ALJ credited Dr. Roth's testimony that the DIME physician did not attempt to reconcile the disparate ROM impairment ratings, and that the DIME physician's ROM rating did not meet the requirements of "consistency and reproducibility." The ALJ also relied on medical records, including the DIME physician's report, suggesting the claimant engaged in excessive pain behaviors and intentionally limited his ROM during examinations.
I.
On review the claimant contends the ALJ erred in finding the respondent overcame the ROM impairment rating by clear and convincing evidence. The claimant concedes that if there is a disparity between impairment ratings the DIME physician must make "some attempt to resolve the difference." (Claimant's Brief at P. 3). However, the claimant argues the DIME physician did this, apparently by repeating ROM measurements on the day of the DIME. The claimant further argues there is no need for the DIME physician to contact other rating physicians if the DIME conducts "further clinical examination." We are not persuaded.
A DIME physician must rate impairment in accordance with the provisions of the AMA Guides. Section 8-42-101(3.7), C.R.S. 2004; § 8-42-107(8)(c), C.R.S. 2004; Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). The DIME physician's finding of impairment is binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(c). The questions of whether the DIME physician properly applied the AMA Guides, and ultimately whether the rating has been overcome by clear and convincing evidence are issues of fact for determination by the ALJ. Wackenhut Corp. v. Industrial Claim Appeals Office, 17 P.3d 2002 (Colo.App. 2000).
Because these issues are factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004. This standard of review requires us to view the evidence in a light most favorable to the prevailing party, and defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals office, supra.
As we understand the claimant's argument, he is asserting that because the DIME physician found the ROM measurements to be valid on the day of the DIME, that was the end of the inquiry. However, as the ALJ found, Dr. Roth testified the AMA Guides require not only that ROM measurements be valid on the day of examination, but also that ROM measurements exhibit some degree of consistency and reliability when compared to ratings recorded by other physicians at other times. AMA Guides, § 1.2. According to Dr. Roth, the claimant's ratings were not consistent and reliable, and the inconsistency was not resolved.
The ALJ credited Dr. Roth's testimony, and we may not interfere with that determination. Similarly, the record supports the finding that the reliability of the ROM measurements is subject to question considering the claimant's pain behaviors. Consequently, substantial evidence supports the finding that the respondent overcame the DIME physician's ROM impairment rating by clear and convincing evidence.
The claimant cites an "interpretive bulletin" issued by the Director of the Division of Workers' Compensation (Director) on November 19, 2001. The bulletin, entitled Resolving Diverging Opinions When Rating Impairment, addresses § 1.2 of the AMA Guides and states a DIME physician may resolve inconsistent impairment ratings either by communicating with the initial evaluator or "conducting further clinical evaluation." The bulletin also states that, in the Director's opinion, the AMA Guides do not require that "disparity in opinions be resolved to the point of agreement," but must be resolved in the mind of the DIME physician having integrated previously gathered medical information with the results of the current examination.
In our opinion, the ALJ's order does not deviate from the Director's interpretation of the AMA Guides. The ALJ found the DIME physician did not resolve the disparate ratings by contacting the previous evaluators or by conducting further clinical evaluation. (Finding of Fact 14). We agree with the respondent and the ALJ that a fair characterization of the DIME report is that the DIME physician recognized the prior ROM impairment ratings, expressed doubt concerning the validity of his own ROM ratings, but failed to explain how he "reconciled" these differences. Cf. Garcia v. Merry Maids, W.C. No. 4-493-324 (August 12, 2002) (under AMA Guides DIME physician properly excluded valid ROM measurements from rating where the measurements were inconsistent with clinical examination); Fausnacht v. Inflated Dough, Inc., W.C. No. 4-160-133 (July 20, 1999) (DIME physician properly excluded valid ROM measurements from rating where he determined the claimant was not giving full effort), aff'd. Fausnacht v. Industrial Claim Appeals Office, Colo. App. No. 99CA1499, May 4, 2000 (not selected for publication).
II.
The claimant next contends that because the ALJ found he had a valid rating for a specific disorder of the spine, the ALJ was required to grant impairment for the ROM measurements. In support of this contention the claimant attached to his brief a Division of Workers' Compensation document entitled "Impairment Rating Tips." This document states that if the claimant receives a Table 53 rating "spinal range of motion must be completed and applied to the rating." We are not persuaded by this argument.
First, as the respondent points out, the tip sheet was not introduced into evidence. Consequently, it is not part of the record and may not be considered on appeal. City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995). It follows that there is no factual predicate for the claimant's argument.
In any event, the proper application of the AMA Guides is a question of fact for the ALJ. Here, Dr. Roth's testimony provides ample record support for the ALJ's finding that the DIME physician's rating was overcome by clear and convincing evidence.
Moreover, we have previously held that an ALJ may find that a distinct portion of a DIME physician's rating has been overcome without finding that the entire rating has been overcome. Lee v. J. Garlin Commercial Furnishings, W.C. No. 4-421-442 (December 17, 2001).
IT IS THEREFORE ORDERED that the ALJ's order dated May 27, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________ David Cain
_______________ Bill Whitacre
Ronald Vasquez, Fort Collins, CO, Debbie Dunst, Safeway, Inc., Denver, CO, Ligita S. Bardulis, Esq., Denver, CO, for Claimant.
Douglas A. Thomas, Esq., Greenwood Village, CO, for Respondent.