W.C. No. 4-806-495.Industrial Claim Appeals Office.
March 9, 2011.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Cannici (ALJ) dated October 20, 2010, that determined the claimant had sustained a three percent whole person impairment rating as a result of her industrial injury. We affirm.
The claimant worked for a food server for the employer. On September 27, 2009 the claimant dropped a spatula into hot grease, which splashed onto her right hand and forearm. The claimant’s authorized treating physician (ATP) determined that the claimant reached maximum medical improvement (MMI) on October 9, 2009 and assigned her a zero percent impairment rating.
The claimant sought a Division-sponsored independent medical examination (DIME). The DIME physician opined that the claimant had a three percent whole person impairment rating and agreed the claimant reached MMI on October 9, 2009. The respondents filed their Application for Hearing on the issue of overcoming the opinion of the DIME physician. The ALJ determined that the respondents had failed to produce clear and convincing evidence to overcome the DIME physician’s opinion regarding the claimant’s three percent whole person impairment rating.
I.
The respondents argue that the ALJ erred in finding that they failed to produce clear and convincing evidence to overcome the opinion of the DIME physician regarding the claimant’s impairment rating. We are not persuaded that the ALJ committed reversible error.
Page 2
Section 8-42-107(8)(c), C.R.S., provides that the DIME physician’s finding of medical impairment is binding unless overcome by clear and convincing evidence. “Clear and convincing” evidence has been defined as evidence which demonstrates that it is “highly probable” the DIME physician’s rating is incorrect. 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).
The question whether the claimant has overcome the DIME by clear and convincing evidence is one of fact for the ALJ’s determination Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). This is true despite the elevated standard of proof required to overcome a DIME: “[I]rrespective of whether the standard of proof at the administrative adjudicatory level of proceedings is clear and convincing, beyond a reasonable doubt, or merely a preponderance of the evidence, it is solely for the trier of fact to determine the persuasive effect of the evidence and whether the burden of proof has been satisfied.” Id, 914 P.2d at 414. Therefore, the standard of review remains whether the ALJ’s findings of fact are supported by substantial evidence in the record Id; Section 8-43-301(8), C.R.S. Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, supra. This standard of review is deferential and the scope of our review is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert, supra.
The respondents argue that the DIME physician did not properly apply the American Medical Association Guidelines to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides) in arriving at his rating as required by statute. Therefore the respondents contend that the ALJ erred as a matter of fact and law in holding that the respondents failed to overcome the DIME physician’s opinion on impairment by clear and convincing evidence.
The Workers’ Compensation Act requires that all physical impairment ratings be conducted in accordance with the AMA Guides. In resolving the issue of whether the DIME physician rating has been overcome 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. The question whether the DIME physician properly applied the AMA Guides is an issue of fact for the ALJ. McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo. App. 1999). Proof that a DIME physician deviated from the rating protocols of the AMA Guides does not compel the ALJ to find that the rating has been overcome by clear and convincing evidence. Rather, proof of such a deviation constitutes some evidence which the ALJ may consider in determining whether the challenge to the rating should be sustained. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003);
Page 3
Almanza v. Majestic Industries, W.C. No. 4-490-054 (Nov. 13, 2003) Smith v. Public Service Company of Colorado, W.C. No. 4-313-575 (May 20, 2002).
In their appeal the respondents rely heavily on the opinions of Dr. Fall. Dr. Fall testified that the claimant did not suffer a ratable impairment pursuant to the AMA Guides. (Exhibit 3); Tr. at 17. Dr. Fall stated that the claimant did not exhibit objective evidence of pruritus (itching). Dr. Fall stated that the DIME physician had failed to specify the manner in which any pruritus interfered with the claimant’s activities of daily living.
However, in contrast, Dr. Swarsen testified that the DIME physician’s three percent whole person impairment rating was consistent with the AMA Guides. Tr. at 45-46. Dr. Swarsen testified that the symptoms as documented by the DIME physician supported a ratable impairment pursuant to § 13.2 of the AMA Guides. Dr. Swarsen further stated that the three percent impairment found by the DIME physician fell within the zero to five percent whole person range as provide for in the AMA Guides. Tr. 46.
The ALJ examined the relevant provisions of the AMA Guides. Exhibit C. In our view the ALJ correctly noted that Table One of the AMA Guides specifies that a zero to five percent whole person impairment rating maybe assigned if signs of symptoms of a skin disorder are present and there are no or minimal limitations in performing activities of daily living. The DIME physician stated that the claimant had signs and symptoms of pruritus but no limitations of activities of daily living. Exhibit 1 at 5.
We concluded that the testimony of Dr. Swarsen, the DIME physician’s report, and the portions of the AMA Guides introduced into evidence constitute substantial evidence supporting the ALJ’s conclusion that the respondents had failed to produce clear and convincing evidence to overcome the opinion of the DIME physician. We are therefore bound by such determination. Section 8-43-301(8), C.R.S.
II.
The respondents next argue that the ALJ erred in evaluating the claimant’s impairment at the time of the DIME and not at the time the claimant reached MMI. The respondents citing § 8-42-107(8)(c) C.R.S. noted that permanent physical impairment shall be determined at the time a claimant is placed at MMI. The respondents argue that here the ATP and the DIME physician agree that the claimant reached MMI on October 9, 2009. Therefore, the respondents contend the ALJ was required to evaluate the claimant’s impairment at the time of MMI on October 9, 2009, not months later at the time of the DIME on April 1, 2010.
Page 4
The respondents argue that at the time of MMI there was no evidence of pruritus, or pain and it was not until the time of the DIME that the claimant had evidence of pruritus and was therefore entitled to three percent whole person impairment. The respondents citing § 8-42-107(8)(c) and conclude that the ALJ erred as a matter of law in determining the claimant’s permanent physical impairment as of the date of the DIME and not the date of MMI.
Section 8-40-201(11.5), C.R.S., defines MMI as the point in time when any medically determinable physical or mental impairment caused by the injury becomes stable and no further treatment is reasonably expected to improve the condition. Pursuant to § 8-42-107(8)(b)(III), C.R.S, a DIME physician’s finding of MMI is binding on the parties unless overcome by clear and convincing evidence. Montoya v. Industrial Claim Appeals Office 203 P.3d 620 (Colo. App. 2008). Here the DIME physician determined that the claimant had reached of MMI on October 9, 2009 and there is no challenge to that date. Therefore, the DIME physician determined that the injury had been medically stable on October 9, 2009 and no further treatment was expected to improve the condition. There is no indication that the DIME physician had found that the claimant’s condition had deteriorated during the time from MMI and the time of his examination.
Moreover, there is always some delay between the time the treating physician rates impairment and the time when the claimant undergoes the DIME. However, the system is designed for the DIME physician to enter an opinion on impairment contemporaneously with the opinion expressed by the treating physician. A party who disputes the treating physician’s rating must request a DIME within the thirty day time period established by § 8-42-107.2 C.R.S. There are other statutory and rule provisions which are designed to speedily resolve the issue of the claimant’s permanent impairment once the treating physician has placed the claimant at MMI and provided an opinion on permanent impairment. Therefore, this does not appear to be a case of change in the claimant’s condition but rather a difference in medical evaluation of the claimant’s condition. Therefore, it was for the ALJ to evaluate the evidence in determining whether the opinions expressed by the DIME physician had been overcome. Metro Moving Storage Co. v. Gussert, supra.
Here, there is evidence supporting the ALJ’s finding that the claimant had complained to the DIME physician of pruritus. Exhibit 1 at 5. Thus, given our earlier conclusion that the DIME physician correctly applied Table 1 of the AMA Guides, we perceive no basis for disturbing the ALJ’s finding that the respondents failed to overcome the DIME physician’s rating.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 20, 2010 is affirmed.
Page 5
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Krikscrum
____________________________________ Thomas Schrant
Page 6
JESSICA GALVAN, AURORA, C, (Claimant).
ELITCH GARDENS PARK,, DENVER, CO, (Employer).
GREENWICH INSURANCE COMPANY, Attn: DONA ESCOBIDO, PHOENIX, AZ, (Insurer).
LAW OFFICE OF O’TOOLE AND SBARBARO, PC, Attn: NEIL D. O’TOOLE, ESQ., DENVER, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK PC, Attn: RICHARD A. BOVARNICK, ESQ., DENVER, CO, (For Respondents).
Page 1