In re Ashton-Moore, W.C. No

Industrial Claim Appeals OfficeSep 12, 2002
W.C. No. 4-431-951 (Colo. Ind. App. Sep. 12, 2002)

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W.C. No. 4-431-951

September 12, 2002


FINAL ORDER

The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which awarded permanent partial disability benefits based on impairment to the upper extremities. The claimant argues the ALJ should have concluded the Division-sponsored independent medical examination (DIME) physician was not qualified to determine the claimant's impairment, and that the claimant sustained whole person medical impairment because of a psychological impairment. The claimant also disputes the ALJ's failure to award ongoing medical benefits after maximum medical improvement. We affirm the award of permanent partial disability benefits and remand for an order concerning medical benefits.

The claimant sustained injuries to her upper extremities, right shoulder and cervical spine on July 20, 1999. In January 2000, the claimant underwent a right carpal tunnel release and ganglion cyst removal. On May 24, 2000, the claimant was placed at maximum medical improvement by a treating physician. The treating physician assessed a 22 percent impairment of the right upper extremity based on reduced range of motion in one finger and residual sensory and motor nerve impairment. The treating physician gave no rating for mental impairment.

The claimant sought a DIME on the issue of permanent impairment. The DIME physician assessed 4 percent impairment for each upper extremity yielding an overall 8 percent scheduled impairment. The DIME physician did not discuss, nor did he assess any mental impairment.

The claimant sought a hearing to overcome the DIME physician's impairment rating, particularly with respect to the failure to give a rating for psychological impairment allegedly caused by the industrial injury. However, the ALJ "inferred" from the DIME physician's report that the DIME physician is of the opinion the claimant has no psychological impairment caused by the industrial injury. The ALJ further found this opinion is supported by the treating physician's rating, as well as the report of psychologist Cynthia Johnsrud. The ALJ further found that the extremity rating of the DIME physician is "credible and persuasive."

The claimant filed a petition to review and a brief in support. These documents contain different, but overlapping arguments. We consider the arguments together.

I.

The claimant argues the DIME physician was not qualified to render an impairment rating, particularly with respect to mental impairment, because of the DIME physician's allegedly "unusual" educational background. We perceive no error.

Section 8-42-101(3.5)(a)(1), C.R.S. 2001, defines a "physician," for purposes of Level II accreditation, to mean a physician licensed under the Colorado Medical Practice Act. Section 8-42-101(3.6)(a)(II), C.R.S. 2001, provides for the establishment of a Level II accreditation program for physicians issuing impairment ratings, and section 8-42-101(3.6)(b), C.R.S. 2001, provides that a physician seeking to rate impairment must complete an accreditation program. Pursuant to these statutes, the Director of the Division of Workers' Compensation (Director) has adopted Rule of Procedure XX, 7 Code Colo. Reg. 1101-3. This rule establishes a procedure for physicians to apply for accreditation and to complete an accreditation course and examination. Full Level II accreditation is granted to a physician who passes a "complete Level II Accreditation examination." Moreover, Rule XIV (L) (1), 7 Code Colo. Reg. 1101-3 requires DIME physicians to have a current license and competency in conducting impairment ratings.

Here, the DIME physician testified he is Level II accredited, is licensed in Colorado, is board eligible in orthopedic surgery, and is actively practicing orthopedic surgery in Phoenix, Arizona. (DIME depo. Pp. 16-18). The claimant presented no evidence that the DIME physician lacks any of these qualifications, including full Level II accreditation. Further, the Director appointed the DIME to carry out the examination and rating of the claimant's impairment.

In the absence of any evidence to the contrary, we must presume the Director acted regularly in issuing accreditation to the DIME physician, and in appointing him to conduct the DIME examination in this case. See Wildwood Child and Adult Care Program, Inc., v. Department of Public Health and Environment, 985 P.2d 654, 655 (Colo.App. 1999) (administrative proceedings accorded a presumption of regularity and party challenging action carries burden to establish impropriety); Moon v. King Soopers, Inc., W.C. No. 4-206-668 (November 22, 1999). Implicit in the Director's decision to issue accreditation is the determination that the DIME physician possessed the requisite statutory and administrative qualifications to act as a DIME physician, and passed the Level II examination. The claimant failed to present any evidence, or cite any specific fact, which undermines the validity of the presumption of regularity or indicates the DIME physician lacked the necessary qualifications. (Rule XIV (L)(1)(a) provides that a physician is qualified to issue ratings if board certified or board eligible). Thus, we reject the claimant's argument that the DIME physician was not qualified to determine the claimant's impairment, or that he lacked full accreditation to rate the claimant's mental impairment, if any.

II.

The claimant next contends the undisputed evidence establishes that she has mental impairment attributable to the industrial injury. The claimant also asserts that it was error for the ALJ to infer from the DIME report that the DIME physician found no mental impairment as a result of the injury, especially since the DIME physician does not discuss mental impairment in the report. We find no reversible error.

Section 8-42-107(8)(c), C.R.S 2001, provides the DIME physician's "finding" of medical impairment, including a "finding that there is no permanent medical impairment," may be overcome only by clear and convincing evidence. Because rating impairment necessarily requires the physician to determine all losses caused by the industrial injury, the DIME physician's determination that an impairment was or was not caused by the industrial injury must be overcome by clear and convincing evidence. See Cordova v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA0852, February 28, 2002); Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998).

The question of whether the DIME physician's causation determination has been overcome by clear and convincing evidence is one of fact for the ALJ. Qual-Med, Inc. v. Industrial Claim Appeals Office, supra. Similarly, the questions of whether the DIME physician properly applied the AMA Guides in arriving at the rating, and whether the rating itself has been overcome, are questions of fact. McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo.App. 1999). Proof of deviation from the AMA Guides is some evidence that the rating was improper. However, such evidence is not decisive if the deviation does not raise substantial doubt concerning the validity of the overall rating. Moon v. King Soopers, Inc., supra.

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. 2001. This standard of review requires that we defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). We also note that where the DIME physician's opinion is ambiguous, it is for the ALJ to resolve the ambiguity and determine the DIME physician's true rating. Lambert and Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656 (Colo.App. 1999).

Here, the DIME physician's report does not assess any mental impairment, nor does it expressly address the issue. Nevertheless, the ALJ inferred that the DIME physician declined to attribute the claimant's mental problems to the industrial injury. The claimant's argument notwithstanding, we believe this is a plausible inference from the record. First, the claimant's request for a DIME listed at least two physicians who evaluated the claimant's emotional problems, so it is reasonable to infer the DIME was aware of the issue. Further, the regulation currently found at Rule of Procedure XIV (L) (3) (e)-(g) expressly requires the DIME physician to be provided with the relevant medical records which, in this case, must have included the records involving the claimant's mental condition and its potential causes. Finally, the claimant herself testified the DIME physician "wanted to talk to me as far as my suit pertaining to Nextel." (Tr. p. 12; Exhibit 42). It may reasonably be inferred from this testimony that the DIME physician was exploring the causes of the claimant's mental distress and the sources of her conflict with the employer. Such evidence would be pertinent to determining the cause or causes of any mental impairment. Finally, as the respondents argue, the claimant deposed the DIME physician but never asked why the DIME physician did not assign a rating for mental impairment.

It is true, as the claimant argues, that Rule of Procedure XIX (E) (1) (2), 7 Code Colo. Regs., 1101-3, provides that a physician rating mental impairment should use the AMA Guides in completing a full psychiatric assessment, which should include a complete history so that "a discussion of causality and apportionment can occur." The DIME physician's report does not contain a discussion of the claimant's history of psychiatric problems or their causes. However, the weight to be assigned this deviation from the requirements of the AMA Guides (and the Rules of Procedure) was a matter for the ALJ to consider in light of the other relevant evidence. The ALJ did not find the deviation persuasive in light of the treating physician's failure to assign any rating for mental impairment, and because of Dr. Johnsrud's opinion that the claimant's psychological problems are associated with her "history of adjustment problems" and disputes with the employer, not the effects of the industrial injury. The ALJ also found that conflicting medical opinions offered by the claimant are not sufficient to overcome the DIME physician's refusal to rate psychological impairment.

The claimant also argues the DIME physician's rating was overcome because he failed to keep records concerning the examination and did not do a ratings worksheet. Again, these issues went to the weight to be assigned the DIME physician's rating. Considering the totality of the evidence, we cannot say the ALJ was compelled to find the claimant overcame the DIME rating as a matter of law.

Insofar as the claimant challenges other aspects of the DIME rating, such as the failure to rate other areas and assign a whole person impairment, we find no error. The ALJ was not persuaded the claimant made a sufficient showing to overcome the rating, and our review of the record discloses substantial evidence to support the ALJ's determination. We also note the DIME physician explained his decision not to award any additional impairment for neurological damage to the claimant's upper extremities. In this regard the ALJ found the DIME physician's opinion to be persuasive, and correctly applied the preponderance of the evidence standard to this issue involving a scheduled rating. (Finding of Fact 10; Conclusion of Law 9); Delaney v. Industrial Claim Appeals Office, 30 P.3d 691 (Colo.App. 2000).

III.

The claimant next contends the ALJ erred by failing to address the issue of ongoing medical benefits under Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). We remand for entry of an order on this issue.

The ALJ should enter an order for Grover medical benefits if the record contains substantial evidence that future treatment will be reasonably necessary to relieve the claimant from the effects of the injury. Such an award may encompass medications designed to relieve the effects of the injury. Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999).

It is not disputed that the claimant raised the issue of Grover medical benefits at the commencement of the hearing. The respondents contend that a remand is not necessary because the claimant presented no evidence of a need for ongoing treatment. However, as the claimant argues, the treating physician stated in his report of May 24, 2000, under "recommendations," that the claimant "may take over-the-counter anti-inflammatories as necessary for pain." The treating physician also stated the claimant "still has some symptomatology." We agree with the claimant that this constitutes evidence which, if credited, could support an award of Grover-style medical benefits. Consequently, the matter must be remanded for the ALJ to address the issue.

IT IS THEREFORE ORDERED that the ALJ's order dated December 26, 2001, is affirmed with respect to the award of permanent partial disability benefits.

IT IS FURTHER ORDERED that the matter is remanded for entry of new order on the issue of ongoing medical benefits. An additional hearing is not authorized by this order, and the ALJ shall enter the order based on the existing record.

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 September 12, 2002 to the following parties:

Alencia Ashton-Moore, 18260 E. Hampton, Aurora, CO. 80013

Nextel Communications, Kathi Larson, 333 Inverness Dr. S., Englewood, CO. 80112-5816

Travelers Indemnity Co. of Illinois, PO Box 173762, Denver, CO 80217-3762

Jack Kintzele, Esq., 1317 Delaware St., Denver, CO. 80204 (For Claimant)

Trecia L. Sigle, Esq., PO Box 5148, Denver, CO. 80217(For Respondents)

By: A. Hurtado