W.C. No. 4-600-477.Industrial Claim Appeals Office.
November 16, 2006.
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Harr (ALJ) dated June 7, 2006 that determined when the Division-sponsored independent medical examination (DIME) physician’s opinion on a component part of the impairment rating had been overcome by clear and convincing evidence the challenging party must also overcome other component parts of the impairment rating by clear and convincing evidence. We set the order aside and remand for entry of a new order.
The relevant facts are not in dispute. The claimant sustained an admitted injury to her back on July 5, 2003. The claimant’s authorized treating physician placed the claimant at maximum medical improvement (MMI) and rated the claimant’s permanent medical impairment at five percent of the whole person based upon a specific diagnosis valued under Table 53 of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides). The treating physician was unable to obtain valid range of motion measurements to rate any deficits in motion. The respondents admitted liability for permanent partial disability benefits based upon the treating physician’s five percent whole person rating. The claimant requested a DIME and the DIME physician agreed that the claimant had five percent whole person impairment based upon Table 53 of the AMA Guides. The DIME physician also provided the claimant with an additional five percent impairment rating for range of motion deficits. The DIME physician combined those values into an overall rating of ten percent of the whole person. An independent medical examination conducted at the request of the claimant resulted in a rating of 12 percent of the whole person. An independent medical examination done at the request of the respondents resulted in a rating of zero percent of the whole person. The respondents sought to overcome the DIME report by clear and convincing evidence.
The ALJ determined that the respondents had shown it highly probable that the DIME physician erred by including a five percent value for range of motion deficits in her overall impairment rating of the claimant. However, the ALJ also determined that the respondents had failed to show it highly probable that the DIME physician was incorrect in assigning a five percent rating for a specific disorder under Table 53. The ALJ concluded that the respondents had thus failed to overcome the portion of the DIME physician’s permanent medical impairment dealing with the specific disorder “by clear and convincing evidence.” The ALJ further concluded that although the respondents’ medical expert disagreed with the DIME physician’s assigning any impairment for the specific disorder under Table 53 this merely “represented a difference of medical opinion, which fails to demonstrate it highly probable” that the DIME physician was incorrect. Findings of Fact, Conclusions of Law, and Order at 7. The ALJ therefore found the claimant sustained a permanent medical impairment of five percent of the whole person and upheld the respondents’ original admission.
On appeal the respondents’ contend that once the ALJ determined that they had overcome the range of motion component of the DIME physician’s impairment rating by clear and convincing evidence, it was error for the ALJ to additionally require them to overcome the impairment rating based on the specific disorder component under Table 53 by clear and convincing evidence. We agree with this argument.
A DIME physician must rate impairment in accordance with the provisions of the AMA Guides. Section 8-42-101(3.7), C.R.S. 2006; § 8-42-107(8)(c), C.R.S. 2006; Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). The DIME physician’s finding of impairment is binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(c). Whether the DIME physician properly applied the AMA Guides, and ultimately whether the rating has been overcome by clear and convincing evidence are issues of fact for determination by the ALJ. Wackenhut Corp. v. Industrial Claim Appeals Office,
17 P.3d 2002 (Colo.App. 2000).
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. 2006. 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, his credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals office, 81 P.3d 1117 (Colo.App. 2003).
As we read the ALJ’s order, after he found the DIME physician’s rating had been overcome on the range of motion component of the claimant’s impairment he concluded that he was then compelled to independently assess each remaining component of the claimant’s impairment to determine whether it had been overcome by clear and convincing evidence. Hence, the ALJ determined whether the rating based upon the range of motion deficits was overcome by clear and convincing evidence and then separately determined whether the rating based upon Table 53 of the AMA Guides was similarly overcome by the same burden of proof. In our view it was error for the ALJ to apply the clear and convincing burden to his evaluation of the rating based on Table 53, since at that point he had determined that the DIME’s impairment rating had been overcome by clear and convincing evidence. In this regard, we note that § 8-42-107(8)(c), C.R.S. 2006 sets forth the procedures for obtaining a DIME to challenge the authorized treating physician’s impairment rating. The statute states that the “finding of such independent medical examiner shall be overcome only by clear and convincing evidence.” § 8-42-107(8)(c), C.R.S. 2006. In our view the DIME’s “finding” is generally the impairment rating and it is that rating that must be overcome.
We have previously held that where the ALJ determines that the DIME physician’s rating has been overcome, the question of the claimant’s correct medical impairment rating then becomes a question of fact for the ALJ. The only limitation is that the ALJ’s findings must be supported by the record and consistent with the AMA Guides and other rating protocols. Thus, once the ALJ determines that the DIME’s rating has been overcome in any respect, the ALJ is free to calculate the claimant’s impairment rating based upon the preponderance of the evidence. Garlets v. Memorial Hospital, W.C. No. 4-336-566 (September 5, 2001).
Following Garlets we have ruled that once an ALJ determines that the DIME physician’s rating has been overcome, an ALJ is not required to reject every other component of a DIME physician’s rating. Lee v. J. Garlin Commercial Furnishings,
W.C. No. 4-421-442 (December 17, 2001). We have also held that insofar as the ALJ found that the DIME physician miscalculated the claimant’s range of motion impairment, the ALJ is not precluded from crediting any part of the DIME physician’s rating. Rather, where the ALJ determines that the DIME physician’s rating has been overcome, the ALJ may independently determine the correct rating. McNulty v. Eastman Kodak Company W.C. No. 4-432-104
(September 16, 2002). Lungu v. North Residence Inn,
W.C. No. 45-61-848 (March 19, 2004). These cases provide guidance in the present case, and we infer from them that once a party has carried the initial burden of overcoming the impairment rating by clear and convincing evidence, the ALJ’s determination of the correct rating is then a matter of fact based upon the lesser burden of a preponderance of the evidence. The ALJ is not required to dissect the overall impairment rating into its numerous component parts and determine whether each part or sub-part has been overcome by clear and convincing evidence.
The claimant relies on Rutherford v. Gale/Sutton Insulation Company, W.C. No. 4-464-456 (August 29, 2002). In Rutherford
we again noted that once an ALJ determines that the DIME physician’s rating has been overcome, the question of the claimant’s correct medical impairment rating becomes a question of fact for the ALJ. However, we also stated in Rutherford that “the ALJ is not required to reject every component of a DIME physician’s rating where a party is successful in proving that one component of the impairment rating is incorrect. Rather, if the DIME physician’s rating is based upon multiple regional impairments, the ALJ may assess the accuracy of each regional impairment separately under the clear and convincing evidence standard.” However, we do not view that language in Rutherford
as inconsistent with our resolution of this case. Here the ALJ was not asked to address “multiple regional impairments,” which we construe to mean impairments to separate regions of the claimant’s body. Rather, the burden was on the claimant to overcome a single impairment rating of the low back based upon different sections of the AMA Guides. Although it may be appropriate to apply the clear and convincing burden to the separate “regional impairments” referred to in Rutherford,
those are not the facts in the instant case. However, to the extent that Rutherford may be read to support the claimant’s argument, we would not follow it. We adhere to our conclusions i Garlet, Garlin, McNulty and Lungu.
Finally, we cannot state that the ALJ’s error in applying the clear and convincing burden to the rating based on Table 53 of the AMA Guides was harmless. The ALJ specifically set forth the burden he applied and noted that the evidence in opposition to the DIME’s rating “fail[ed] to demonstrate it highly probable that Dr. Klingbeil was incorrect.” Findings of Fact, Conclusions of Law, and Order. Elsewhere, the ALJ appeared to credit certain other evidence in opposition to the DIME rating, and he generally discredited the claimant’s testimony as not credible. Under these circumstances, we cannot infer that the result would have been identical had the ALJ applied the correct burden of proof.
On remand the ALJ should determine the claimant’s medical impairment rating based upon the evidence in the record and applying the burden of a preponderance of the evidence. As noted, once the respondents generally overcame the DIME’s rating by clear and convincing evidence, they did not have the further burden of overcoming components of the rating by the same burden.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 7, 2006, is set aside and the matter is remanded for proceedings consistent with this order.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Curt Kriksciun
___________________________________ Thomas Schrant
Juana Diaz Deleon, Denver, CO, Law Offices of Miguel Martinez, John D. Stehlik, Esq., Denver, CO, (For Claimant)
Dworkin, Chambers, Williams, P.C., Gregory K. Chambers, Esq., Denver, CO, (For Respondents)
Whole Foods Market, Inc., Tiffany Myers, Thornton, CO, Gallagher Bassett Services Inc., Deborah McKnight, Englewood, CO, Pacific Employers Insurance Co., Littleton, CO.