W.C. No. 4-377-463Industrial Claim Appeals Office.
February 19, 2002
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Harr (ALJ) which awarded the claimant permanent partial disability benefits based on medical impairment of 25 percent of the whole person. The respondents contend the ALJ erred insofar as the rating was based on soft tissue injury to the claimant’s cervical spine. We affirm.
The claimant sustained a compensable injury on March 5, 1998, when lifting a patient. The original treating physician noted the claimant was experiencing upper back and neck pain, and diagnosed “upper back and neck strain.” Subsequently, treating physicians also entertained various diagnoses involving the claimant’s left shoulder. The claimant was placed at maximum medical improvement (MMI) on June 28, 2000.
The respondents referred the claimant to Dr. Orent for a medical impairment rating. Dr. Orent assessed a 14 percent impairment of the left upper extremity. One of the claimant’s treating physicians referred the claimant to Dr. Machanic for an impairment rating. Dr. Machanic assessed a 17 percent whole person impairment rating, which included 4 percent impairment for a specific disorder of the cervical spine, and 5 percent impairment for reduction of the claimant’s cervical range of motion.
The claimant underwent a Division-sponsored independent medical examination (DIME). The DIME physician assessed a 30 percent whole person impairment which, like Dr. Machanic, included 4 percent impairment for a specific disorder of the cervical spine, and 5 percent impairment for reduced range of motion of the cervical spine.
The ALJ found that the respondents overcame the DIME physician’s rating in one respect, but failed to overcome the rating by clear and convincing evidence insofar as it assessed 9 percent impairment of the cervical spine. In support, the ALJ found that Dr. Machanic’s cervical impairment rating was based on injury to the “scalene neck muscle on the left upper cervical spine,” and was consistent with the claimant’s reports of neck pain at the time of the injury, as well as Dr. Machanic’s own examination of the claimant. Further, the ALJ credited Dr. Machanic’s opinion that Table 53 (II) (B) of the AMA Guides supports an impairment rating based on soft tissue injury to muscles of the cervical spine. Consequently, the ALJ concluded the respondents failed to carry their burden of proof to overcome the DIME physician’s cervical impairment rating, and awarded permanent partial disability benefits based on a rating which included this impairment.
On review, the respondents contend that Table 53 (II) (B) does not permit assessment of medical impairment based on injury to muscles of the cervical spine, but is restricted to soft tissue injuries of the “spinal column.” According to the respondents, permitting an award based on injury to cervical muscles constitutes a “tortured reading” of this provision of the AMA Guides. Consequently, the respondents argue we should hold as a matter of law that the DIME physician’s cervical impairment rating was improper. We reject this argument.
Section 8-42-107(8)(c), C.R.S. 2001, provides that whole person impairment ratings must be determined in accordance with the AMA Guides, and that the DIME physician’s finding concerning impairment “shall be overcome only by clear and convincing evidence.” It is now well established that the questions of whether the DIME physician properly applied the AMA Guides in ascertaining the impairment rating, and whether the rating itself has been overcome by clear and convincing evidence, are matters of evidentiary fact for determination by the ALJ. McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo.App. 1999) Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Similarly, it has been held the DIME physician’s finding that a component of the claimant’s impairment was caused by the industrial injury must be overcome by clear and convincing evidence. Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998). We have recently held that if a DIME physician’s overall impairment rating is composed of multiple regional impairments, the ALJ must independently assess each regional impairment to determine whether it has been overcome by clear and convincing evidence. See Lee v. J. Garlin Commercial Furnishings,
W.C. No. 4-421-442 (December 17, 2001).
Because the issues are factual in nature, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. This standard of review requires us to view the evidence in a light most favorable to the prevailing party, and 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, supra.
Table 53 (II) (B) of the AMA Guides provides for cervical impairment ratings based on “inter-vertebral disc or other soft-tissue lesions,” if the condition is “unoperated, with medically documented injury and a minimum of six months of medically documented pain and rigidity with or without muscle spasm, associated with none to minimal degenerative changes on structural tests.” (Emphasis in original). Table 53 also assigns impairment ratings for other specific disorders of the spine including fractures and spinal instability.
Dr. Machanic expressly testified that Table 53 (II) (B) permits assessment of impairment based on soft tissue injury to the muscles of the cervical spine, and is not restricted to impairment of bones and joints of the spine. He further testified that soft-tissue lesions are included under Table 53 because they can affect proper movement of the cervical spine. (Tr. pp. 63, 67-69). This testimony constitutes substantial evidence in support of the DIME physician’s assessment of cervical impairment based on application of Table 53. Moreover, as we read Dr. Orent’s report and testimony, he did not contradict Dr. Machanic’s opinion that Table 53 permits assessment of impairment based on soft tissue injury of the muscles of the cervical spine. Instead, Dr. Orent opined the claimant’s medical records do not sufficiently document an injury to the cervical region, and the claimant’s neck pain is probably referred from the shoulder injury. (Tr. pp. 17, 22). Under these circumstances, the question of whether the DIME physician properly applied Table 53 (II) (B) to the claimant’s condition was one of fact for the ALJ, and there is no basis for interfering with the ALJ’s resolution of this question.
Moreover, the record contains substantial evidence that the claimant’s medical records document injury to the muscles of the cervical spine. As the ALJ recognized, the claimant’s initial diagnosis included muscle strain of the cervical region. Dr. Machanic testified this diagnosis was consistent with his examination of the claimant. Finally, the DIME physician noted neck tenderness of the time of her examination. Thus, there was a mere conflict in the evidence concerning whether the medical records document an injury to the claimant’s cervical region, and we may not substitute our judgment for that of the ALJ on this issue.
The respondents’ reliance on Arreola v. Coleman Products, W.C. No. 4-386-311 (February 28, 2000), as authority for a contrary conclusion is misplaced. That case merely held the evidence supported the ALJ’s finding that the DIME physician’s cervical impairment rating was overcome because there was no documented injury to the cervical region. The case certainly did not hold that Table 53 (II) (B) may never be used as a basis for assessing medical impairment based on soft tissue injury to the muscles of the cervical spine. Indeed, we have upheld awards based on soft tissue injury to muscles of the spine. Welker v. Bogue Construction, Inc., W.C. No. 4-309-642 (March 5, 1998).
IT IS THEREFORE ORDERED that the ALJ’s order dated August 2, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Dona Halsey
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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed February 19, 2002 to the following parties:
Annette Sanchez, 337 Douglas St., Wray, CO 80758-1824
Stan Fisher, NHA, Renotta Health Care Center, P. O. Box 276, Wray, CO 80758-0276
Terry Stewart, Fremont Compensation Insurance Co., 1471 Shoreline Dr., #200, Boise, ID 83702
Peter H. McGuire, Esq., 1325 S. Colorado Blvd., #405, Denver, CO 80222 (For Claimant)
William A. Richardson, Esq., 400 Sussex Bldg., 1430 Larimer Square, Denver, CO 80202 (For Respondents)
BY: A. Pendroy