Summary
In Webb v. Circuit City Stores, Inc., W.C. No. 4-467-005 (August 16, 2002), the claimant suffered a hip injury. A lower extremity rating was issued which converted to 8 percent whole person impairment. Under § 8-42-107(2)(w), C.R.S. 2002, the "loss of the leg at the hip joint" is a scheduled loss.
Summary of this case from In re Guzman, W.C. NoOpinion
W.C. No. 4-467-005
August 16, 2002
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ) which ordered the claimant's scheduled impairment ratings to be converted to a whole person rating for the purpose of awarding permanent partial disability benefits. We affirm.
The claimant sustained injuries to both knees on June 17, 1999. Surgery was performed on the left knee in April 2000. On August 31, 2000, the claimant was placed at maximum medical improvement by Dr. Fall. Dr. Fall found the claimant had 4 percent impairment of the right lower extremity based on restricted range of motion in the knee joint. She also found the claimant had 9 percent impairment of the left lower extremity based on reduced range of motion and arthritis in the knee joint. These ratings combined for a 6 percent whole person rating.
The claimant underwent a Division-sponsored independent medical examination (DIME) in December 2000. The DIME physician assessed 4 percent impairment for the right lower extremity and 16 percent impairment of the left lower extremity. These ratings combined for an 8 percent whole person impairment. The DIME physician found no impairment of the "back or legs."
The respondents filed a final admission of liability based on the DIME physician's scheduled impairment ratings for the lower extremities. The claimant objected and sought a hearing to determine whether the DIME physician's extremity ratings should be converted to the whole person equivalent.
At hearing, the claimant testified that after surgery she developed a limp which, in turn, caused low back pain. The claimant further testified that the low back pain affects her ability to bend to the left, and also affects ambulation. (Tr. p. 9).
Although the claimant failed to report back pain to Dr. Fall or the DIME physician, the ALJ credited the claimant's testimony concerning the existence and effects of the back pain. The ALJ found this testimony established functional impairment not found on the schedule of disabilities, and that the claimant "overcame by clear and convincing evidence the opinion of the DIME examiner on the issue of whole person impairment." Consequently, the ALJ ordered the DIME physician's scheduled ratings converted to the whole person rating for the purpose of awarding medical impairment benefits.
On review, the respondents contend the record lacks substantial evidence to support the ALJ's finding that the claimant overcame the DIME physician's scheduled ratings by clear and convincing evidence. The respondents argue the medical records, including those of Dr. Fall and the DIME physician, do not support the claimant's testimony concerning back pain. Further, the respondents rely on the DIME physician's refusal to assign any impairment attributable to the claimant's back condition. We find no error.
Initially, we agree with the claimant that the ALJ was not required to find by clear and convincing evidence that the claimant overcame the DIME physician's impairment rating. The initial question of whether the claimant sustained a scheduled or non-scheduled injury is one of fact for determination by the ALJ. That determination depends on whether the claimant establishes the industrial injury caused functional impairment not found on the schedule of disabilities. Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996). Although the opinions and findings of a DIME physician may be relevant to this determination, a DIME physician's opinion is not mandated by the statute nor is the ALJ required to afford it any special weight. See Delaney v. Industrial Claim Appeals Office, 30 P.3d 691 (Colo.App. 2000). It is only after the ALJ determines the claimant sustained whole person impairment that the DIME physician's rating becomes entitled to presumptive effect under § 8-42-107(8)(c), C.R.S. 2001. See Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998) (DIME provisions do not apply to the rating of scheduled injuries).
In this case, the ALJ apparently required the claimant to prove non-scheduled functional impairment by clear and convincing evidence. However, that heightened burden of proof does not apply to the question of whether the claimant proved functional impairment outside the schedule. Rather, the ALJ determines this issue under the ordinary preponderance of the evidence standard mandated by § 8-43-201, C.R.S. 2001. See Cordova v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA0852, February 28, 2002) (DIME physician's opinions only given "presumptive effect" when expressly required by the Act). However, any error in this regard benefited the respondents and does not require setting the order aside.
The question then becomes whether substantial evidence supports the ALJ's finding that the claimant proved functional impairment not found on the schedule of disabilities. Section 8-43-301(8), C.R.S. 2001; Strauch v. PSL Swedish Healthcare System, supra. In this regard, we note that § 8-42-107(2)(w), C.R.S. 2001, defines "loss of the leg at the hip joint" as a scheduled loss. However, the AMA Guides measure impairment of the "lower extremity," which includes the hip joint itself. (See Lower Extremity Impairment Record attached to DIME physician's report). Consequently, as is the case with shoulder injuries and upper extremity impairments, the DIME physician's rating under the AMA Guides is not conclusive as to whether or not the claimant sustained a scheduled or non-scheduled injury. Strauch v. PSL Swedish Healthcare System, supra. Further, the site of the injury is not necessarily the site of the functional impairment. Indeed, proof of pain which functionally impairs a part of the body not found on the schedule is sufficient to establish whole person impairment. Salaz v. Phase II Co., W.C. No. 4-240-376 (November 19, 1997), aff'd., Phase II Co. v. Industrial Claim Appeals Office, (Colo.App. No. 97CA2099, September 3, 1998) (not selected for publication); cf. Fox v. Vail Associates, W.C. No. 4-456-440 (July 29, 2002) (claimant's testimony that hip injury produced occasional back pain was insufficient, standing alone, to demonstrate functional impairment of the back so as to remove injury from the schedule).
Substantial evidence is probative evidence supporting a reasonable belief in the existence of a fact without regard to conflicting evidence and contradictory inferences. Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). Thus, the substantial evidence test requires us to defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The respondents' argument notwithstanding, the record contains substantial evidence in support of the ALJ's finding that the claimant proved functional impairment beyond the leg at the hip. The ALJ credited the claimant's testimony that the industrial injuries have caused her to limp, which in turn has caused back pain and resulted in functional impairment of her ability to bend to the left. Further, the back pain has affected the claimant's gait. The DIME physician conceded that limping can result in low back pain. Consequently, the claimant's testimony supports the ALJ's order, and we are not at liberty to interfere with the decision to credit the claimant's testimony. The mere fact other findings and inferences were possible affords no basis for relief on appeal. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
The fact the DIME physician did not rate the claimant's back does not change the result. The claimant was not trying to prove ratable impairment of the back. She was merely trying to prove the lower extremity injury caused functional impairment beyond the leg at the hip.
IT IS THEREFORE ORDERED that the ALJ's order dated July 11, 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed August 16, 2002 to the following parties:
Valencia Webb, 820 Vindicator Dr., Colorado Springs, CO 80919
Workers' Compensation Manager, Circuit City Stores, Inc., 345 N. Academy Blvd., Colorado Springs, CO 80909-6605
Travelers Indemnity Company of Illinois, c/o Myra Jelinek, Travelers Property Casualty Company, P. O. Box 173762, Denver, CO 80217-3762
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Kevin L. Flynn, Esq., P. O. Box 5148, Denver, CO 80217-5148 (For Respondents)
By: A. Hurtado