Opinion
W.C. No. 4-368-712
August 11, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ). The claimant contends the ALJ erred in finding the Division-sponsored independent medical examination (IME) physician's opinion that the claimant was not at maximum medical improvement (MMI) was overcome by clear and convincing evidence. The claimant also contends the ALJ failed to make adequate findings of fact concerning whether her wage loss subsequent to a termination from modified employment was to some degree caused by the injury. Finally, the claimant contends the ALJ erred in finding the Division IME physician's impairment rating was overcome by clear and convincing evidence, and that the ALJ erred in excluding evidence concerning the IME physician's compliance with the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides). We affirm the ALJ's order with respect to MMI and permanent partial disability benefits, and set the order aside and remand for entry of a new order concerning the claimant's entitlement to temporary total disability benefits from April 16, 1998, to June 24, 1998.
The claimant sustained a compensable back injury on January 17, 1998. By March 3, 1998, the treating physician released the claimant to return to modified duty. The employer provided work within the claimant's restrictions, and the employer sometimes reminded the claimant to work within her restrictions. Apparently, the claimant's productivity was diminished by the restrictions.
On April 15, 1998, the claimant's supervisor issued the claimant a formal warning concerning her absences from work. The ALJ found that, although the claimant failed to provide any medical reports excusing her from work, she was angered by the warning. Consequently, the claimant walked off the job and did not return to work.
On June 24, 1998, the treating physician placed the claimant at MMI with an 8 percent whole person impairment rating. The rating included 5 percent impairment for a specific disorder of the lumbar spine under Table 53 of the AMA Guides, and 3 percent impairment for reduced range of motion. The claimant requested a Division-sponsored IME on the issues of MMI and medical impairment. The IME physician, Dr. Berk, opined the claimant was not at MMI because she needed an x-ray of the lumbar spine, an MRI, and referral to an orthopedist "to further delineate the etiology of her complaints in the low back and evaluate and see if any treatment would be available for her for her bilateral carpal tunnel syndrome." (Berk IME report). Dr. Berk testified the x-ray would rule out facet syndrome, the MRI would rule out a herniated disc, and an orthopedist could determine whether surgical treatment is appropriate (Tr. pp. 21-27). Dr. Berk also signed a 17 percent whole person impairment rating based on 5 percent impairment for a specific disorder of the lumbar spine under Table 53, and 13 percent impairment for lost range of motion.
Claimant also obtained an IME by Dr. Harder. Dr. Harder opined the claimant reached MMI on June 24, 1998, but has a 16 percent whole person impairment. The respondents obtained an IME by Dr. Roth. Dr. Roth opined the claimant reached MMI on June 24, 1998, and sustained an 11 percent whole person impairment. Dr. Roth testified there was no reasonable anticipation that further "medical attention" would benefit the claimant. Specifically, Dr. Roth opined an x-ray is unnecessary because a successful SI joint injection eliminated facet syndrome as a diagnosis. Further, he stated an MRI and referral to an orthopedic surgeon are unnecessary because the claimant's clinical examination and symptoms are inconsistent with any operable lesion. (Tr. pp. 57-58, 63-66).
The ALJ found the claimant reached MMI on June 24, 1998, and that the Division IME physician's opinion to the contrary was overcome by clear and convincing evidence. Specifically, the ALJ found Dr. Berk made no suggestions for specific treatment to improve the claimant's condition, but made "a number of recommendations for additional testing to try and rule out other possible causes" of the claimant's pain. However, the ALJ implicitly credited the testimony of Dr. Roth that additional diagnostic procedures are not warranted, as well as other medical opinions supporting the conclusion the claimant reached MMI on June 24.
The ALJ also concluded the claimant is not entitled to temporary total disability benefits from April 16, 1998, when she was separated from employment, until June 24, 1998. Resolving conflicts in the evidence, the ALJ found the claimant was capable of performing the modified employment offered by the employer, and was "at fault" for loss of the job on April 15, 1998. The ALJ also found the employer would have provided continuing work to the claimant, and the post-separation wage loss "was not as a result of [the claimant's] work-related injuries, but was the result of her becoming angry" with the supervisor.
Finally, the ALJ awarded permanent partial disability benefits based on medical impairment of 8 percent of the whole person. In support of this determination, the ALJ found that the Division-sponsored IME physician gave a "tentative 17 percent whole person rating," and, taking into consideration all medical evidence, the treating physician's 8 percent rating constituted clear and convincing evidence of the claimant's medical impairment.
I.
On review, the claimant contends the ALJ erred as a matter of fact and law in finding that he reached MMI on June 24, 1998. The claimant argues the ALJ erroneously concluded the Division IME physician's recommendation for "diagnostic procedures rather than specific treatment" supports a finding of MMI. We are not persuaded.
Temporary total disability benefits terminate when the claimant reaches MMI. Section 8-42-105(3)(a), C.R.S. 1999. MMI is defined as "a point in time when any medically determinable physical or mental impairment as a result of injury has become stable and when no further treatment is reasonably expected to improve the condition." Section 8-40-201(11.5), C.R.S. 1999. The finding of the Division-sponsored IME physician concerning MMI is binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(b)(III), C.R.S. 1999; Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, ___ P.2d ___(Colo.App. No. 99CA1380, June 8, 2000).
We agree with the claimant's legal position that diagnostic procedures may be performed prior to MMI if they have a reasonable prospect of defining the claimant's condition and suggesting further treatment. See Gonzales v. Industrial Claim Appeals Office, 905 P.2d 16 (Colo.App. 1995). However, under the current statutory scheme, a finding of MMI is largely a medical issue revolving around the reports and testimony of medical experts. Monfort Transportation v. Industrial Claim Appeals Office, 942 P.2d 1358 (Colo.App. 1997). The question of whether the Division IME physician's opinion concerning MMI has been overcome by clear and convincing evidence is one of fact for determination by the ALJ. Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995).
Because the issue is factual in nature, we must uphold the ALJ's order if supported by substantial evidence to the record. Section 8-43-301(8), C.R.S. 1999. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). The ALJ is the sole arbiter of the weight and credibility of conflicting medical evidence. Postlewait v. Midwest Barricade, supra.
The claimant's argument notwithstanding, we do not interpret the ALJ's order as holding the claimant is at MMI solely because the Division IME physician recommended diagnostic rather than curative procedures. Rather, we understand the ALJ to have credited the opinion of Dr. Roth that the diagnostic procedures recommended by the Division-IME physician are neither reasonable nor necessary in light of the claimant's clinical presentation. As the ALJ recognized, Dr. Roth's opinion concerning the date of MMI is corroborated by the reports of Dr. Harder and the treating physician. Therefore, there is substantial evidence in the record to support the ALJ's determination that the Division IME physician's opinion concerning MMI was overcome by clear and convincing evidence.
II.
The claimant next contests the denial of temporary total disability benefits from April 15, 1998, the date of separation, until the date of MMI. The claimant argues the evidence does not support the ALJ's finding that she was able to perform the modified employment. Further, the claimant contends the ALJ made insufficient findings of fact to determine whether the post-separation wage loss was to some degree caused by the industrial injury. We agree with the latter argument and remand for entry of a new order on this issue.
Insofar as the claimant contends the evidence is insufficient to support a finding that she was able to perform the modified employment, we disagree. Our review of the record reveals a conflict between the testimony of the claimant and her supervisor concerning the claimant's ability to perform the modified employment. The ALJ resolved the conflict against the claimant, and we may not interfere with this credibility determination. Section 8-43-301(8).
In PDM Molding Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), the court held a claimant's loss of post-injury modified employment does not create an absolute bar to the recovery of temporary disability benefits. Rather, if the claimant is at fault for loss of the post-injury employment, the claimant may recover benefits if she demonstrates the subsequent wage loss was to some degree caused by the injury. The focus is on whether the industrial injury contributes to the claimant's inability to secure employment at pre-injury wage levels. Id. at 548. When determining whether the injury contributed to the post-separation wage loss, the ALJ may consider various factors including whether or not the claimant conducted a job search, and the extent of the physical restrictions continuing after the separation. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999); Black Roofing Inc. v. West, 967 P.2d 195 (Colo.App. 1998).
In considering the claimant's argument that the ALJ failed to make adequate findings of fact concerning the PDM issue, we recognize the ALJ is not held to a crystalline standard. However, the findings must be sufficient to support appellate review and indicate the basis of the decision. Section 8-43-301(8); George v. Industrial Commission, 720 P.2d 624 (Colo.App. 1986). When necessary, we may resort to the ALJ's oral ruling in an attempt to clarify ambiguities in the written order. CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev'd on other grounds, 783 P.2d 269 (Colo. 1989).
The ALJ made extensive factual findings in support of his conclusion that the claimant was "at fault" for the loss of her job on April 15. However, we find no specific findings of fact in support of the ALJ's conclusion that the post-separation wage loss was solely the result of the claimant's decision to quit the modified employment. In this regard, we note the claimant testified that she applied for three different jobs, and one of the applications was made in June, 1998. The claimant further testified that she had been "looking for a job since the day that [she] walked off that property," and that her back pain prevented her from finding work. (Tr. p. 106). The ALJ made no written findings concerning the credibility of the claimant's testimony about the job search, nor any attempt to resolve possible inconsistencies in the testimony. Indeed, in his oral remarks concerning the PDM issue, the ALJ stated: "It would be a real interesting case if the claimant went out and looked for work and couldn't find it because of her restrictions, but I don't have to deal with that." (Tr. p. 134).
Consequently, we conclude the ALJ failed to resolve conflicts in the evidence and determine whether the claimant's post-separation was to some degree caused by the industrial injury. On remand, the ALJ shall make explicit findings of fact concerning the claimant's testimony about the post-separation job search, and any other pertinent evidence bearing on the reason for the claimant's post-separation wage loss. The ALJ shall then enter a specific conclusion of law determining whether to some degree the post-separation wage loss was caused by the injury. In reaching this result, we should not be understood as expressing any opinion concerning the claimant's credibility, or the weight to be afforded any evidence in the record.
III.
The claimant next contends the ALJ erred in determining that the Division-sponsored IME physician's impairment rating was overcome by clear and convincing evidence. The claimant argues the ALJ's order was "prefaced" by a misapprehension concerning the presumptive weight to be assigned the Division IME physician's rating. Specifically, the claimant asserts the ALJ incorrectly characterized the Division IME physician's impairment rating as "tentative," and gave the opinion insufficient weight. Further, the claimant argues the ALJ misapplied the burden of proof because he stated the treating physician's impairment rating established clear and convincing evidence that the claimant's actual impairment is 8 eight percent of the whole person. We disagree with these arguments.
The claimant correctly states the impairment rating of the Division-sponsored IME physician is binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(c), C.R.S. 1999; McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo.App. 1999). Consequently, the burden of proof is placed on the party seeking to overcome the Division IME physician's rating. Lambert and Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656 (Colo.App. 1998). The question of whether the rating has been overcome by clear and convincing evidence in one of fact for determination by the ALJ, and we must uphold the order if supported by substantial evidence in the record. Metro Moving and Storage Co. v. Gussert, supra.
Here, the order demonstrates the ALJ correctly placed the burden of proof on the respondents. First, the ALJ explicitly recognized there was a dispute concerning whether or not the claimant's low back condition was causally related to the industrial injury. However, the ALJ found the respondents failed to overcome the Division IME physician's finding of a causal relationship by clear and convincing evidence. Because the determination of causation is an inherent part of the rating process, the ALJ's ruling concerning causation reflects a correct understanding of the burden of proof when seeking to overcome the Division IME physician's rating. See Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998). We see no basis for holding the ALJ properly applied the burden of proof on the issue of causation, but misapplied it concerning the rating.
Further, the ALJ's finding that the treating physician's report "establishes clear and convincing evidence" the claimant has an 8 percent impairment rating reflects a correct application of the burden of proof. Implicit in the ALJ's statement is a conclusion the treating physician's rating, when viewed in context of the other medical evidence, was so persuasive it constitutes clear and convincing evidence that the Division IME physician's 17 percent rating was incorrect. In this regard, we note the treating physician's rating was corroborated by Dr. Roth's rating, and the only differences involved relatively small variances in range of motion measurements. (Tr. pp. 66-67).
The mere fact the ALJ found the Division IME physician's impairment rating was "tentative" does not require a different result. Indeed, the Division IME physician testified his impairment rating was "tentative" because he did not believe the claimant was at MMI, and it is not appropriate to determine an impairment rating until the claimant's condition is stable. (Tr. p. 34). However, once the ALJ determined the Division IME physician's opinion concerning MMI was overcome, we see no evidence the ALJ gave less weight to the Division IME physician's impairment rating than the statute requires. To the contrary, the order demonstrates the ALJ applied the rule that the Division IME physician's impairment rating may be overcome only by clear and convincing evidence.
IV.
Finally, the claimant argues the ALJ erroneously precluded claimant's counsel from inquiring whether the Division IME physician complied with the AMA Guides in issuing the claimant's impairment rating. The ALJ stated he was going to "sustain the objection that hasn't been made" because the Division IME physician testified that his impairment rating was "tentative." (Tr. p. 38). We find no reversible error.
The ALJ may well have erred in sustaining an objection "that wasn't made" concerning counsel's question. Indeed, in determining whether the rating of the Division IME physician has been overcome by clear and convincing evidence, it is critical to determine whether the rating was issued in accordance with the AMA Guides. The statute itself mandates use of the AMA Guides when calculating ratings, and the ALJ must weigh the evidence to determine whether the IME physician's rating complies with the Guides and, if not, whether noncompliance demonstrates the rating has been overcome. Section 8-42-107(8)(c) (mandating use of AMA Guides when issuing whole person impairment ratings); Metro Moving and Storage Co. v. Gussert, supra.
However, we conclude the ALJ's action in "sustaining the objection" constitutes harmless error. C.R.E. 103 (a) (error may not be predicated upon a ruling which excludes evidence unless a substantial right of the party is affected). Here, the ALJ admitted as evidence the report and rating worksheets of the Division IME physician. In his report, the Division IME physician stated he "did do the measurements using the AMA Guides for Permanent Partial Impairment." The rating worksheets reveal the IME physician gave 5 percent whole person impairment for injury to the lumbar spine under Table 53 of the AMA Guides, and assigned additional impairment for reduced range of motion in accordance with other tables of the AMA Guides. Consequently, regardless of the ALJ's ruling on the "objection that wasn't made," the ALJ admitted documentary evidence showing the IME physician believed he complied with the AMA Guides when determining the claimant's impairment rating. Thus, excluding the IME physician's testimony merely avoided redundancy and did not affect the claimant's substantial rights.
Moreover, in this case the actual dispute concerning the claimant's impairment rating does not involve an argument about the controlling provisions of the AMA Guides, or even whether the Guides were correctly applied. To the contrary, all physicians gave an impairment rating for a specific disorder of the lumbar spine, and additional impairment based on reduced ranges of motion. The actual dispute involves the validity of the range of motion measurements obtained by the various physicians. When the ALJ sustained the "objection," claimant's counsel made no offer of proof showing that the Division IME physician's testimony would assist the ALJ in resolving the dispute concerning the claimant's range of motion measurements. Therefore, the claimant may not predicate error on the ALJ's ruling. C.R.E. 103 (a) (2) (error may not be predicated on exclusion of evidence unless the substance of the proffered evidence was made known to the court by offer or was apparent from the context within which the questions were asked).
IT IS THEREFORE ORDERED that the ALJ's order dated July 23, 1999, is set aside insofar as it denied temporary total disability benefits from April 16, 1998, until June 24, 1998, the date of maximum medical improvement. On this issue, the matter is remanded for entry of a new order consistent with the views expressed herein.
IT IS FURTHER ORDERED that the ALJ's order is otherwise 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. 1999. 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 11, 2000 to the following parties:
Carol A. Hatch, 4935 W. Hurst Pl., Denver, CO 80204
John H. Harland Company, 1110 W. 8th Ave., Lakewood, CO 80215
National Union Fire Insurance Co., Suzan Hassebrook, Crawford Company, 9200 E. Panarama Circle, #160, P. O. Box 6502, Englewood, CO 80155-6502
James E. Freemyer, Esq., 1545 Ogden St., Denver, CO 80218-1405 (For Claimant)
Lawrence D. Blackman, Esq., 1515 Arapahoe St., Tower 3, #600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy