W.C. No. 4-426-152Industrial Claim Appeals Office.
July 9, 2001
FINAL ORDER
The claimant and the respondent separately petitioned for review of an order of Administrative Law Judge Felter (ALJ) which awarded permanent partial disability benefits based on 24 percent whole person impairment. We affirm.
On June 1, 1999, the claimant suffered an admitted injury to his right shoulder. Prior to and following the injury, the claimant underwent psychological treatment from Dr. Cheryl Ristig, who is a licensed and board certified psychiatrist. Dr. Ristig referred the claimant to Dr. Pock for an evaluation of permanent mental impairment. Dr. Pock opined the claimant suffered a work-related psychological injury and assigned a 10 percent impairment rating for permanent mental impairment.
The claimant underwent a Division-sponsored independent medical examination (DIME) by Dr. Klingbeil who assigned a 26 percent rating for impairment to the right upper extremity, which converts to 16 percent whole person impairment. However, Dr. Klingbeil opined that the situs of the claimant’s functional impairment is limited to the right arm. Dr. Klingbeil did not include a rating for permanent mental impairment.
The claimant applied for a hearing to overcome Dr. Klingbeil’s impairment rating. The ALJ found the claimant failed to overcome by “clear and convincing evidence” Dr. Klingbeil’s opinion that the claimant did not suffer functional impairment beyond the arm. Nevertheless, the ALJ found it was highly probable the claimant suffered permanent mental impairment of 10 percent. In so doing the ALJ relied on the opinions of Dr. Ristig and Dr. Pock. Therefore, pursuant to Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo 1996), the ALJ converted Dr. Klingbeil’s upper extremity rating to a whole person impairment rating which he combined with Dr. Pock’s 10 percent mental impairment rating to award permanent partial disability benefits based upon 24 percent whole person impairment.
On review, the respondent contends the ALJ erroneously relied on Dr. Ristig’s opinions as evidence the claimant overcame the DIME physician’s permanent impairment rating. The respondent’s argument is based on the undisputed fact that Dr. Ristig is not a Level II accredited physician. Under these circumstances, the respondent argues Dr. Ristig was not competent to determine whether Dr. Klingbeil correctly rated the claimant’s mental impairment. The respondent also contends the ALJ applied an incorrect legal standard insofar as he found that Dr. Klingbeil’s rating did not meet the “standard of care” required to rate mental impairment.
For his part, the claimant contends that even if the award of mental impairment benefits is set aside, he is entitled to permanent partial disability benefits based upon whole person medical impairment. Specifically, the claimant argues the ALJ did not apply the correct legal standard in finding the claimant suffered “functional impairment” which is fully compensated on the schedule of disabilities.
We uphold the permanent partial disability award based upon permanent mental impairment. Consequently, we do not consider the claimant’s argument that the right shoulder injury caused functional impairment to the whole person.
The statutory language currently codified at § 8-42-107(8)(c), C.R.S. 2000, provides that the DIME physician’s permanent impairment rating is binding unless overcome by “clear and convincing evidence.” “Clear and convincing evidence,” is evidence which indicates that is “highly probable” the IME physician incorrectly rated the claimant’s impairment. 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).
As argued by the respondent, §§ 8-42-101(3.6)(b), and 8-42-107(8)(c), C.R.S. 2000, require all physicians who perform impairment evaluations of injured workers to complete Level II accreditation training. However, nothing in § 8-42-107(8)(c), restricts “clear and convincing evidence” to the opinions of Level II accredited physicians and we may not read such a limitation into the statute. See Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000). Rather, the ALJ may consider both expert and lay testimony, including medical evidence from non-Level II physicians in determining whether the DIME physician has correctly rated the claimant’s permanent impairment.
The question of whether the respondent sustained its burden to overcome the DIME physician’s opinions is one of fact for the ALJ. Askew v. Sears Roebuck Co., 927 P.2d 1333 (Colo. 1996). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 200 ; Metro Moving Storage Co. v. Gussert, supra. Under this standard we must defer to the ALJ’s credibility determinations, his resolution of conflicts in the evidence and plausible inferences drawn from the record.
Here, it is undisputed Dr. Ristig did not complete Level II training for rating permanent impairment of injured workers. However, Dr. Ristig did not purport to issue an impairment rating. To the contrary, Dr. Ristig recommended the claimant be evaluated by a Level II psychiatrist for this purpose. (Ristig letter May 8, 2000). Consequently, Dr. Ristig’s opinions do not implicate the provisions of § 8-42-101(3.6)(b).
Further, the respondent did not object to Dr. Ristig’s testimony as an expert in psychiatry. Dr. Ristig stated that consideration of a claimant’s history of psychological treatment would be a relevant consideration in assessing the claimant’s permanent impairment and that the failure to consider this history would fall below the “standard of care” expected of a physician evaluating psychiatric impairment. (Tr. p. 28). The ALJ found that Dr. Klingbeil’s report does not mention Dr. Ristig’s prior treatment of the claimant. Under these circumstances, the ALJ could, and did, rely on Dr. Ristig’s testimony as some evidence that it is highly probable Dr. Klingbeil did not correctly evaluate the claimant’s mental impairment.
In any case, Dr. Ristig’s testimony was not the sole basis for the ALJ’s order and the respondent does not contend that the record is legally insufficient to support the ALJ’s finding of permanent mental impairment. Nor does the respondent challenge Dr. Pock’s competency to render an opinion on the accuracy of Dr. Klingbeil’s mental impairment rating. Dr. Pock is a Level II accredited psychiatrist who diagnosed the claimant as suffering from major depression without psychotic features. Dr. Pock opined that Dr. Klingbeil mistakenly failed to recognize the causal connection between the claimant’s depression and the industrial injury. Furthermore, using the same mental impairment worksheet that was used by Dr. Klingbeil, Dr. Pock opined the claimant sustained 10 percent permanent mental impairment. Thus, there is substantial evidence in Dr. Pock’s report to support the ALJ’s finding that the claimant overcame Dr. Klingbeil’s mental impairment rating.
Finally, the applicable law [amended by § 8-42-107(7)(b)(I), C.R.S. 2000 which applies to injuries occurring on or after July 1, 1999], provides that when a work-related accident results in at least one injury that is listed on the schedule, and at least one injury that is not listed on the schedule, the scheduled injury must be converted to a whole person impairment rating, so that all effects of the accident are compensated as a percentage of whole-person impairment. Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo 1996). The court further held that because all medical impairment ratings must be in accordance with th American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides) the rating physician shall use the AMA Guides to “combine” the whole person impairment ratings. Mountain City Meat Co. v. Oqueda, 914 P.2d at 254.
Here, the ALJ determined the claimant suffered at least one permanently impairing injury not listed on the schedule of disabilities. Because we uphold that determination, the ALJ properly converted the claimant’s right shoulder impairment rating to a whole person impairment rating before awarding benefits based upon the combined whole person ratings.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 14, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
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. 2000. 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 July 9, 2001 to the following parties:
William D. Smeltzer, 3090 S. Ash St., Denver, CO 80222
Joni Wheeler, New Century Energies, 1225 17th St., #800, Denver, CO 80201
Public Service Company of Colorado, 191 University Blvd., #348, Denver, CO 80206-4613
Michelle Scholes, Xcel Energy, 550 15th St., #550, Denver, CO 80202
IME Unit, Tower 2, #630, Division of Workers’ Compensation — Interagency Mail
Shawn E. McDermott, Esq., 2300 15th St., #2300, Denver, CO 80202 (For Claimant)
Michael A. Perales, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondent)
BY: A. Pendroy