Opinion
W.C. No. 4-720-290.
September 14, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) dated April 24, 2009, that denied the claim for permanent partial disability benefits. We affirm.
The claimant sustained a compensable injury on February 4, 2007. The claimant eventually underwent a Division-sponsored independent medical examination (DIME). The DIME physician determined the claimant suffered permanent impairment and opined that he had a combined rating of 18 percent whole person impairment. The ALJ found that the respondents had overcome by clear and convincing evidence the DIME physician's opinion regarding the claimant's physical impairment. The ALJ awarded the claimant no permanent impairment as a result of his compensable injury. The claimant brings this appeal.
The DIME physician's medical impairment rating is binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(c), C.R.S. 2009; Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). "Clear and convincing evidence" is evidence which proves that it is "highly probable" the DIME physician's opinion is incorrect. Metro Moving Storage Co. v. Gussert, supra. The question of whether the DIME physician's rating has been overcome by clear and convincing evidence is a matter of fact for determination by the ALJ. Metro Moving Storage Co. v. Gussert, 914 P.2d. 411 (Colo. App. 1995). The standard of review is whether the ALJ's findings of fact are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2009.
The claimant argues that the opinion of the DIME physician was more reliable than the opinion of Dr. Primack, which the ALJ relied upon. However, we are not persuaded that the ALJ committed reversible error in relying on the opinions of Dr. Primack and on medical reports from certain physicians in Virginia.
The claimant in essence argues that the DIME physician's opinions were more credible than the evidence relied upon by the ALJ. We note that "we may not interfere with the ALJ's credibility determinations except in the extreme circumstance where the evidence credited is so overwhelmingly rebutted by hard, certain evidence that the ALJ would err as a matter of law in crediting it." Arenas v. Indus. Claim Appeals Office, 8 P.3d 558, 561 (Colo. App. 2000). Nor may we interfere with the ALJ's assessment of an expert witness's testimony because where, as here, expert testimony is presented, the weight to be accorded the testimony is a matter within the discretion of the ALJ as fact-finder. Rockwell Int'l v. Turnbull, 802 P.2d 1182, 1183 (Colo. App. 1990).
Here, the ALJ made the following findings of fact, which are supported by substantial evidence in the record. Dr. Primack testified that the DIME physician's impairment rating was incorrect under the American Medical Association Guidelines to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides) based on medical records provided by physicians in Virginia. Exhibit M at 15-16. Just forty-seven days prior to the DIME appointment the claimant had seen a physician in Virginia who had found that the claimant had full range of motion. Exhibit L at 1. The claimant had also seen a surgeon in Virginia twenty-seven days prior to the DIME and his examination reflected full range of motion of the claimant's lumbar spine and full range of motion of the claimant's hip without pain. Exhibit K at 3. The Virginia surgeon also examined the claimant twenty-two days after the DIME and again noted full range of motion of the lumbar spine and specifically noted full range of motion of the claimant's hip without any pain. Exhibit K at 1. The DIME physician was unaware that the claimant had a full range of motion of his lumbar spine a month and half before the DIME appointment, and full range of motion of his lumbar spine and hip with no evidence of pain fourteen days after the DIME appointment. Exhibit N at 25. The DIME physician agreed that the findings of the Virginia physicians directly conflicted with the findings made by the DIME physician. Exhibit N at 26-27. Although the claimant points to his own testimony and evidence questioning the reliability of the opinions of Dr. Primack and the reports from the Virginia physicians, in our view this evidence is insufficient to overwhelmingly rebut the evidence relied upon by the ALJ. The evidence described above constitutes substantial evidence in the record supporting the ALJ's determination that the DIME physician's medical impairment rating had been overcome by clear and convincing evidence.
Additionally, the ALJ made the following findings of fact with record support. Dr. Primack further testified that the DIME physician's assignment of a rating for a specific disorder under Table 53 of the AMA Guides was incorrect. Exhibit M at 16-17. Dr. Primack testified that there was no basis for an impairment rating as the claimant's pain complaints were restricted to his right side and they did not correspond to the disk pathology on the left side. Exhibit M at 24 26 28. Dr. Primack testified that because the claimant's pain complaints were on his right side whereas the MRI showed some bulging on the left side, the claimant did not demonstrate pain and rigidity for six months consistent with the actual findings on the MRI. Exhibit M at 8-10 22 24-26. Thus the specific disorder noted by the DIME physician was not supported by the MRI findings. Exhibit M at 17 30. Dr. Primack opined that the claimant did not have any permanent residual impairment. Exhibit H at 6-7. Dr. Primack stated that without a specific disorder, range of motion testing is not appropriate under the AMA Guides. Exhibit M at 16.
The Workers' Compensation Act requires that all physical impairment ratings be conducted in accordance with the AMA Guides. The ALJ must consider the factual question of whether the DIME physician properly applied the AMA Guides and other rating protocols. See Metro Moving Storage Co. v. Gussert, supra. The questions whether the DIME physician properly applied the AMA Guides in arriving at the rating, and ultimately whether the party challenging the rating has overcome it by sufficient evidence are issues of fact for the ALJ. McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo. App. 1999). Proof of a deviation from the AMA Guides constitutes evidence, which the ALJ may consider in determining whether the challenge to the rating should be sustained. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003); Almanza v. Majestic Industries, W.C. No. 4-490-054 (Nov. 13, 2003); Smith v. Public Service Company of Colorado, W.C. No. 4-313-575 (May 20, 2002).
The ALJ noted that the AMA Guides require not only that range of motion measurements be valid on the day of examination, but also that these measurements exhibit some degree of consistency and reliability when compared to ratings recorded by other physicians at other times. The ALJ determined that the DIME physician's range of motion measurements here had not exhibited consistency and reliability when compared to ratings recorded by other physicians. Consequently, the ALJ determined that the DIME physician's impairment rating had shown by clear and convincing evidence to be incorrect. In our opinion, the medical record from the Virginia doctors and the opinions of Dr. Primack constituted substantial evidence supporting the ALJ's determination that the DIME physician improperly applied the AMA Guides in arriving at his rating.
The claimant also argues that the ALJ made findings of fact regarding the DIME physician that were not accurate. The claimant argues that the ALJ in her finding of fact # 26 stated that the DIME physician was unaware that the claimant had full range of motion of his lumbar spine both before and after the DIME appointment. As noted above, however, this finding is supported by the record, although there may have been evidence from which the ALJ could have inferred otherwise. Exhibit N at 24-25. Further although the claimant argues that the DIME physician did not know whether the range of motions measurements conducted in Virginia were detailed or not, the reports admitted into evidence from the Virginia doctors do state that on examination the claimant demonstrated full range of motion. The weight to be given this evidence was for the ALJ to determine. See Pacesetter Corp. v. Collett, 33 P.3d 1230, 1234 (Colo. App. 2001). The claimant's arguments do not alter our opinion that the findings of fact made by the ALJ were supported by substantial evidence in the record.
The claimant further argues that Dr. Primack's testimony was not credible in light of the claimant's persistent medical symptoms, which did not completely abate. The claimant argues that the ALJ erred in findings that the claimant's pain complaints were restricted to his right side and that they did not correspond to the disc pathology. However, as noted above, Dr. Primack did testify to this as found by the ALJ, and the weight to be accorded the testimony of Dr. Primack and the testimony provided by the claimant is a matter within the discretion of the ALJ as the fact finder. Exhibit M at 8-10 22 24-26 See Rockwell Int'l v. Turnbull, 802 P.2d 1182, 1183 (Colo. App. 1990).
IT IS THEREFORE ORDERED that the ALJ's order dated April 24, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
ERNEST BOATENG, DENVER, CO, (Claimant).
FIRST TRANSIT INC, DENVER, CO, (Employer).
AMERICAN HOME ASSURANCE, Attn: MS LISA TAIT, FRESNO, CA, (Insurer).
DAVID LEVY ESQ, BOULDER, CO, (For Claimant).
THOMAS POLLART MILLER LLC, Attn: BRAD J MILLER ESQ, GREENWOOD VILLAGE, CO, (For Respondents).
BROADSPIRE, Attn: MS TERI CONLEY,, FRESNO, CA, (Other Party).