Opinion
W.C. No. 4-561-898.
October 31, 2005.
FINAL ORDER
The claimant seeks review of an order dated June 14, 2005 of Administrative Law Judge Klein (ALJ) that found the respondents had overcome the Division-sponsored independent medical examination (DIME) rating by clear and convincing evidence and denied the claimant's claim for permanent partial disability (PPD) benefits based on a whole person impairment rating. We affirm.
The claimant suffered an admitted injury to his left arm. The respondents filed a Final Admission of Liability which admitted for scheduled disability benefits based on the authorized treating physician's upper extremity rating. The claimant objected and applied for a DIME.
The DIME physician determined the claimant suffered an impairment to the upper left extremity but in addition opined that the appropriate total impairment rating should include the cervical area for a whole person impairment. The DIME physician determined that the claimant did not have any direct intrinsic neck problems secondary to the original injury. However, the DIME physician included an impairment rating for the cervical spine in his combined whole person permanent partial impairment rating, acknowledging, however, that this might violate the AMA Guides. The DIME physician gave an opinion on a modified whole person impairment rating which he felt would be the most appropriate impairment rating, as there was no specific disorder in the neck that had been caused by the injury.
At the request of respondents the claimant underwent an independent medical evaluation (IME). The IME physician found the claimant had an upper left extremity impairment measured at the shoulder and offered the opinion that the DIME had not properly rated the claimant's impairment pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides). The IME physician opined that it was improper for the DIME physician to include loss of cervical range of motion in his rating impairment where there existed no specific disorder of the spine. The ALJ found the IME physician to be credible and persuasive.
The ALJ found that, with few exceptions, when the claimant presented for medical treatment his complaints were isolated to pain in the left shoulder and that it was not until months after the date of the injury that he complained of pain radiating into his neck. Crediting the opinions of the IME, the ALJ found the respondents had overcome the opinions of the DIME by clear and convincing evidence. The ALJ further found that no credible basis exists for converting the claimant's upper extremity impairment to an impairment of the whole person.
On review the claimant first contends that the ALJ erred in finding that respondents overcame the DIME physician's opinion on impairment. The claimant argues that the ALJ's findings are insufficient to permit appellate review and they do not resolve conflicts in evidence. The claimant further argues that the ALJ did not apply the enhanced burden of clear and convincing evidence. We perceive no basis to disturb the ALJ's order.
Section 8-42-107(8)(c), C.R.S. 2005 provides that the DIME physician's finding of medical impairment is binding unless overcome by clear and convincing evidence. "Clear and convincing" evidence has been defined as evidence which demonstrates that it is "highly probable" the DIME physician's rating is incorrect. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998) ; Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). The clear and convincing evidence standard also applies to the DIME physician's opinion on the cause of the impairment. This is true because causation is an inherent part of the diagnostic assessment which comprises the DIME process of rating permanent medical impairment. Qual-Med, Inc., v. Industrial Claim Appeals Office, supra.
The determination of whether the DIME physician's opinion has been overcome is a question of fact for resolution by the ALJ. Consequently, we must uphold the ALJ's determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2005; See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002); Qual-Med, Inc. v. Industrial Claim Appeals Office, supra. The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ's assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review is "exceedingly narrow." Metro Moving Storage Co. v. Gussert, 914 P.2d at 415.
We reject the claimant's contention that the ALJ findings are insufficient to permit appellate review and do not indicate how the ALJ came to his conclusion that the DIME's rating was in error by clear and convincing evidence. The ALJ took note of conflicting opinions between the DIME physician and the IME physician, including differences on the issue of inclusion of cervical impairment. The ALJ explicitly found that the opinion of the IME physician was credible and persuasive and noted areas where the IME physician had concluded that the DIME physician had not properly rated the claimant's impairment pursuant to the AMA Guides. (Findings of Fact 14, 15, 16, 22). Thus, the findings amply reflect that after considering all of the evidence, including the medical records and testimony, the ALJ reasonably concluded the respondents had overcome the DIME by clear and convincing evidence (Conclusions of Law 8).
The claimant next contends the record fails to support the ALJ's finding that the claimant did not suffer a functional impairment beyond the arm at the shoulder. We disagree.
The applicable law is undisputed. Section 8-42-107(1), C.R.S. 2005, provides that the claimant is limited to a scheduled disability award if the claimant suffers an "injury or injuries" described in § 8-42-107(2), C.R.S. 2005. Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996). Under § 8-42-107(2)(a), the partial "loss of an arm at the shoulder" is a scheduled disability.
Where the claimant suffers an injury or injuries not enumerated in § 8-42-107(2), the claimant is entitled to whole person impairment benefits under § 8-42-107(8), C.R.S. 2005. Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996). In the context of § 8-42-107(1), the term "injury" does not refer to the situs of the injury or the situs of surgery for the industrial injury. Rather, the term refers to the part or parts of the body which have been functionally impaired or disabled as a result of the injury. Warthen v. Industrial Claim Appeals Office, 100 P.3d 581(Colo.App. 2004) ; Strauch v. PSL Swedish Healthcare System, supra.
The question of whether the claimant suffered functional impairment that is fully compensated as a partial "loss of an arm at the shoulder" within the meaning of § 8-42-107(2)(a), is one of fact for determination by the ALJ, and that determination must be upheld if supported by substantial evidence and plausible inferences from the record. Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996) ; Strauch v. PSL Swedish Healthcare System, supra. But the ALJ is not held to a crystalline standard in articulating his findings of fact. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
In particular the claimant argues that the ALJ's finding of fact that the IME is credible and persuasive cannot be reconciled with the ALJ's conclusion that a conversion to a whole person impairment was not established because the IME physician testified that he agrees with the DIME physician's finding that the claimant suffered reactive pain in the neck caused by the left upper extremity injury. We disagree.
In Walker v. Jim Fuoco Motor Company, 942 P.2d 1390, as noted by the ALJ, the court of appeals established that, depending on the particular facts of a claim, damage to the structures of the "shoulders" may or may not reflect a "functional impairment" which is enumerated on the schedule. Where the physicians find no impairment beyond the shoulder and where the impairment principally affects the claimant's arm movements, the ALJ may find that the claimant sustained a functional impairment listed on the schedule of disability despite complaints of pain into the neck. The ALJ took note of relevant evidence in the medical records and the claimant's testimony and found that the claimant's complaints of pain only establish, at best, that he is limited in the use of his arm. The IME physician testified that the claimant has no restrictions that extend beyond the left upper extremity and has no functional impairment that involves the neck or other parts of the body. Tr. p. 21 The DIME physician testified that the complaints of the claimant are not mentioned at all in the very beginning of the claimant's treatment records. Tr. p. 57. The DIME physician also stated that the involvement of the right shoulder was somewhat baffling because the claimant had no right shoulder problems when he examined him. Tr. pg.58.
There is in the record considerable conflicting testimony and evidence that would support a contrary result but this does not provide a basis for setting aside the ALJ's order. Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo.App. 1999). There is substantial support in the record for the ALJ's determination and consequently, we reject the claimant's contention that the ALJ's finding of no functional impairment beyond the arm at the shoulder is in conflict with all evidence and testimony submitted at hearing. We have reviewed the claimant's additional arguments and they do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ's order dated June 14, 2005 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________ Curt Kriksciun ____________________ Tom Schrant Jeffrey Gingles, Lakewood, CO, City of Englewood, Englewood, CO, Patricia Morgan, CIRSA, Denver, CO, John A. Sbarbaro, Esq., Denver, CO, (For Claimant).Bruce B. McCrea, Esq., Denver, CO, (For Respondents).