W.C. No. 4-370-850Industrial Claim Appeals Office.
August 1, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which determined the claimant failed to overcome the permanent medical impairment rating of the Division-sponsored independent medical examination (DIME) physician. We affirm.
In November 1997, the claimant suffered admitted injuries in a motor vehicle accident. Dr. Striplin placed the claimant at maximum medical improvement in June 1998, and assigned a zero permanent medical impairment rating. At that time, Dr. Striplin reported the claimant’s “back pain” was no longer a problem and the claimant’s lumbar range of motion was “normal.” The claimant ultimately underwent a DIME by Dr. Kassan, who assigned 7 percent whole person impairment rating based upon a specific disorder of the cervical spine under Table 53IIB of th American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides), and range of motion deficits in the cervical and lumbar areas of the spine.
Dr. Harder disagreed with Dr. Kassan’s rating. Dr. Harder testified that the AMA Guides treats the spine as three separate regions and that Level II accredited physicians are instructed to rate each region separately under Table 53 and then combine the ratings. Dr. Harder opined the claimant met the criteria for a 5 percent rating under Table 53IIB of the AMA Guides for a specific disorder of the lumbar spine with six months pain and rigidity, and that Dr. Kassan erred in failing to include the 5 percent rating even if the claimant’s low back pain eventually resolved. (Tr. p. 20). Therefore, Dr. Harder opined Dr. Kassan’s rating was incomplete.
The ALJ gave the greatest weight to the opinions of Dr. Kassan and Dr. Hughes, who agreed with Dr. Kassan’s rating, and found that Dr. Harder’s conflicting testimony did not prove it was highly probable Dr. Kassan’s rating is incorrect. Rather, the ALJ found Dr. Harder’s testimony “establishes that physicians may reasonably differ in how they interpret and apply the AMA Guides.” Consequently, the ALJ found the claimant failed to overcome Dr. Kassan’s opinions by clear and convincing evidence.
On review, the claimant contends that a plain reading of § 3.3 of the AMA Guides and the Level II accreditation course materials reveals that each region of the spine is to be separately rated under Table 53IIB of the AMA Guides. Relying on the opinions of Dr. Harder the claimant contends there is clear and convincing evidence Dr. Kassan erred in failing to include impairment ratings for specific disorders to the cervical and lumbar regions of the spine. Therefore, the claimant argues the ALJ misinterpreted the AMA Guides in finding Dr. Kassan correctly applied the AMA Guides in rating the claimant’s medical impairment. We disagree.
Under § 8-42-107(8)(c), C.R.S. 2000, the DIME physician is required to determine the claimant’s permanent medical impairment in accordance with the AMA Guides. The statute also provides that the DIME physician’s medical impairment rating is binding unless overcome by “clear and convincing evidence.” Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). “Clear and convincing evidence” is evidence which is stronger than a preponderance, is unmistakable and is free from serious or substantial doub . DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318 (1980); Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979).
Whether the DIME physician’s medical impairment rating has been overcome by clear and convincing evidence is a question of fact for the ALJ. Metro Moving Storage Co. v. Gussert, supra. In resolving this issue, 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. We must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000.
Application of the substantial evidence test requires that we defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Accordingly, the scope of our review is narrow. Metro Moving Storage Co. v. Gussert, supra.
We agree with the claimant that a plain reading of the AMA Guides, § 3.3a and the Level II accreditation course materials (attached to the Respondents’ Position Statement), indicates the examining physician is to rate only the “primary diagnoses” in each spinal region, but the physician is not precluded from assigning a rating for each region of the spine. However, we are not persuaded the ALJ construed the AMA Guides as precluding the DIME physician from rating each region of the spine under Table 53IIB. (See Summary Order, January 10, 2000). Rather, as we read the ALJ’s order, he was persuaded by the opinions of Dr. Hughes and Dr. Kassan that the claimant only met the criteria for a rating due to a specific disorder of the cervical spine. Cf. Wackenhut Corp. v. Industrial Claim Appeals Office, 17 P.3d 202 (Colo.App. 2000) (AMA Guides require physician to assess clinical data and do not preclude physician from concluding that injury primarily occurred to one side of the back).
The claimant’s arguments to the contrary, the ALJ’s finding is supported by substantial evidence in the record, and therefore, must be upheld. Dr. Kassan reported that at the time of the DIME the claimant presented with cervical spine pain, but “no significant lumbosacral or thoracic spine pain.” Dr. Kassan also reported that the claimant’s lumbosacral spine films were unremarkable. Consequently, Dr. Kassan was not persuaded the claimant’s clinical presentation met the requirements for a medical impairment rating due to a specific disorder of the lumbar spine under Table 53II.
The DIME report is buttressed by Dr. Hughes opinion that the claimant’s mid and low back pain represents “reactive symptoms” associated with the lower cervical spine injury and not a separate disorder of the lumbar spine. (Hughes November 17, 1999). Under these circumstances, the ALJ could, and did, reasonably infer that Dr. Harder’s testimony presented a difference of medical opinion concerning the application of Table 53II, but not clear and convincing evidence that Dr. Kassan’s rating was incorrect.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 1, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_____________________________________ David Cain
_____________________________________ Kathy E. Dean
NOTICE
An action to modify or vacate this Order may be 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 August 1, 2001 to the following parties:
Alberto P. Espinosa, 3164 W. Walsh Pl., Denver, CO 80219
Leed Energy Services Corporation, P. O. Box 329, Ft. Lupton, CO 80621-0329
Michael J. Steiner, Esq., Colorado Compensation Insurance Authority d/b/a Pinnacol Assurance — Interagency Mail (For Respondents)
Thomas J. Roberts, Esq., 940 Wadsworth Blvd., 4th floor, Lakewood, CO 80215 (For Claimant)
Thomas M. Stern, Esq., 600 17th St., #1600, Denver, CO 80202
BY: A. Pendroy