IN THE MATTER OF THE CLAIM OF MAXINE MEDINA-WEBER, Claimant, v. DENVER PUBLIC SCHOOLS, Employer, and SELF-INSURED, Insurer, Respondents.

W.C. No. 4-782-625.Industrial Claim Appeals Office.
May 9, 2011.

FINAL ORDER
The claimant seeks review of an order on remand of Administrative Law Judge Henk (ALJ) dated December 21, 2010 that determined that the claimant sustained no permanent impairment from her compensable injury of May 5, 2008. We affirm.

This matter was previously before us. In an order dated January 28, 2010, the ALJ ordered the respondents to pay permanent partial disability benefits based upon the report of a Division-sponsored independent medical examination (DIME), without apportionment. The ALJ found in her previous order that the claimant sustained two compensable injuries, the first occurring on July 21, 2006 and resulting in alleged impairment to her neck (W.C. 4-694-444). The claimant reached maximum medical improvement with no permanent impairment; however, a DIME reported that she had 11 percent impairment of her upper extremity and ten percent impairment of her cervical spine. In an order issued in April 2008 ALJ Felter concluded that the respondents had overcome the DIME report and denied the claimant’s claim for permanent partial disability benefits.

The ALJ also found in her previous order that the claimant sustained a second compensable injury on May 5, 2008 (W.C. No. 4-782-625), which affected her neck, her thoracic spine, and her upper extremity. An authorized treating physician, Dr. Dunkle, placed her at maximum medical improvement with permanent medical impairment. A DIME was performed, which reported that the claimant had sustained 13 percent impairment of the whole person, but that ten percent should be apportioned to the first injury. The respondents sought to overcome the DIME report.

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The ALJ determined that the respondents had overcome the DIME report on impairment by clear and convincing evidence. She noted that both Dr. Dunkle and the DIME physician had apportioned out some or all of the claimant’s impairment. However, the ALJ concluded that because ALJ Felter had previously determined that the first injury had caused no impairment she could not apportion any of the impairment as a matter of law.

The respondents appealed and argued that, in concluding that she was precluded from apportioning as a matter of law, the ALJ applied an incorrect legal standard. We agreed with the respondents’ argument and therefore set aside the ALJ’s order and remanded for entry of another order based upon the applicable law of apportionment as we understand it. On remand the ALJ entered the order under review here.

No further hearing was held on the issue of permanent partial disability benefits attributable to the May 5, 2008 injury. On remand the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The ALJ again found that the claimant injured her neck on July 21, 2006 and reached maximum medical improvement with no impairment on October 16, 2006. A DIME was performed, which reported that the claimant was not at maximum medical improvement; however, the respondents overcame that report and a follow-up DIME reported that the claimant had sustained 11 percent impairment of the upper extremity and ten percent impairment of the whole person. ALJ Felter determined that the respondents overcame the DIME report and denied permanent partial disability benefits attributable to the July 21, 2006 injury.

The ALJ also found after remand that the claimant was injured on May 5, 2008 when a student collided with her in the gymnasium, snapping her head and neck to the left. The claimant was evaluated by Dr. Dunkle on June 10, 2008, who assessed an “aggravation of cervical, thoracic, scapular and upper extremity pain.” The claimant was evaluated by Dr. Shih on June 27, 2008 who assessed the claimant as having “cervical and left upper extremity pain complex, query cervical radicular complex with predominant localized neck pain.” In a later visit Dr. Shih compared two of the claimant’s MRI results and stated that the earlier MRI showed some degenerative disc changes at the C6-7 level of the claimant’s cervical spine as well as some degenerative changes. The more recent MRI showed a combination of degenerative discs and “uncovertebral changes with some foraminal narrowing.” Dr. Shih opined that the “pathology was mild” and the “anatomic changes are relatively benign.” The claimant then underwent a series of injections administered by Dr. Olsen, who stated that she suffered from “disc protrusion” at two levels of her cervical spine with “extremity radiculopathy.”

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The ALJ further found that Dr. Dunkle placed the claimant at maximum medical improvement on January 5, 2009. Dr. Dunkle determined that the claimant sustained no permanent impairment as a result of the injury. He declined to give a rating because of the claimant’s reduced range of motion “on clinical grounds,” and he did not provide an impairment rating for a specific disorder because there had been no changes under Table 53 of th AMA Guides to the Evaluation of Permanent Impairment since the previous injury. The respondents filed a final admission of liability, admitting for no permanent partial disability benefits.

The ALJ found that the claimant obtained a DIME, which was performed by Dr. Goldman. Dr. Goldman provided a four percent impairment rating for the claimant’s diagnosis of chronic cervicalgia aggravated by the May 5, 2008 injury. He assigned an impairment rating of 13 percent of the whole person and apportioned ten percent of it to the previous injury. The respondents obtained a hearing to seek to overcome the DIME report regarding the claimant’s impairment rating.

The ALJ found that the respondents successfully overcame the DIME report. The ALJ credited Dr. Dunkle’s opinion that the DIME doctor’s ranges of motion measurements failed to meet the validity criteria of the AMA Guides. Based upon that finding the ALJ therefore concluded that the portion of the impairment rating attributable to reduced range of motion was incorrect. In this regard, the ALJ also credited Dr. Dunkle’s opinion that the correct impairment rating for reduced range of motion is five percent. The ALJ also found that the DIME doctor’s rating of four percent for a specific disorder of the spine was correct and was not overcome.

The ALJ also noted that both Dr. Dunkle and the DIME doctor apportioned part of the claimant’s permanent impairment to the previous injury. Dr. Dunkle apportioned all of the claimant’s impairment and Dr. Goldman apportioned ten percent impairment to the prior injury. The ALJ concluded that the DIME doctor’s opinion on apportionment was not overcome by clear and convincing evidence. Accordingly, she concluded that the claimant sustained zero percent impairment as a result of the May 2008 injury.

The claimant appealed and makes two arguments. First, the claimant argues that the respondents should be estopped from asserting that impairment should be apportioned because they successfully argued previously that the first injury resulted in no permanent impairment. Second, the claimant argues that the ALJ failed to enter sufficient findings regarding Dr. Goldman’s reliance on the opinions of Dr. Mechanic, which had previously been rejected as unsupported by the AMA Guides. We have reviewed the record and considered the claimant’s arguments and we are unpersuaded that the ALJ erred or abused her discretion.

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I.
The claimant first argues that the respondents should be “judicially estopped” from arguing that any portion of the claimant’s present impairment is attributable to the previous injury occurring in 2006. The claimant argues that having successfully persuaded ALJ Felter that the 2006 injury resulted in no permanent impairment, the respondents were then estopped from arguing in this proceeding that the claimant’s apportionment was attributable to the 2006 injury and should therefore be apportioned.

First, it is doubtful that the doctrine of judicial estoppel was timely raised by the claimant. It appears that she first asserted its applicability in her brief in opposition to the respondents’ petition to review the ALJ’s order of January 28, 2010. At that point the hearing on the respondents’ efforts to overcome the DIME report had been held and no factual record could be created establishing that judicial estoppel precluded the ALJ from apportioning benefits. It is true that the ALJ had determined that she could not apportion benefits as a matter of law and the claimant had prevailed on that issue. However, arguably the claimant was required to raise the doctrine before the ALJ prior to the hearing.

In any event, we conclude that judicial estoppel does not bar the respondents here from asserting that the claimant sustained no permanent impairment as a result of the 2008 injury. The doctrine of judicial estoppel “prevents a party from asserting inconsistent positions in the same or related litigation which may result in multiple recovery for that party or defeat a legitimate claim for recovery made by the opposition.” The Estate of Burford v. Burford, 935 P.2d 943, 947 (Colo. 1997). Th Burford decision sets forth the elements of judicial estoppel as follows:

“First, the two positions must be taken by the same party or parties in privity with each other; second, the positions must be taken in the same or related proceedings involving the same party or parties in privity with each other; third, the party taking the positions must have been successful in maintaining the first position and must have received some benefits in the first proceeding; fourth, the inconsistency must be part of an intentional effort to mislead the court; and fifth, the two positions must be totally inconsistent — that is, the truth of one position must necessarily preclude the truth of the other.”

Here the parties and the proceedings are the same. However, there is no basis for finding that the claimant engaged in a deliberate attempt to mislead the ALJ in either proceeding. Rather, the respondents were entitled to assert that the 2006 DIME was incorrect and then later to argue that the 2008 DIME report properly apportioned

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impairment to the prior injury. The record does not support the inference that there has been overreaching or a bad faith attempt to assert irreconcilable legal positions, and the doctrine of judicial estoppel does not apply to the facts of this claim. The Estate of Bruford v. Burford, supra.

II.
The claimant next argues that it is evident from Dr. Goldman’s report that he relied entirely on the opinions of Dr. Mechanic, who performed the 2006 DIME, in concluding that apportionment was appropriate. The claimant argues that the ALJ’s factual findings are insufficient to show that she considered the “sufficiency” of Dr. Goldman’s opinions, especially in light of his reliance on Dr. Mechanic’s opinions, which were overcome in the previous proceedings. However, we are unpersuaded that any error occurred.

Section 8-42-107(8), C.R.S., provides that the DIME physician’s findings of maximum medical improvement and medical impairment are 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, supra.

The question whether a party has overcome the DIME by clear and convincing evidence is one of fact for the ALJ’s determination Id. 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, 14 P.2d 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.” Id.

As we noted in our order remanding this matter to the ALJ, where a DIME has occurred the question of apportionment is also subject to the “clear and convincing” standard and the DIME’s apportionment must be overcome or it is binding. Martinez v. Industrial Claim Appeals Office, 176 P.3d 826 (Colo. App. 2007). Here, it appears undisputed that the DIME report apportioned impairment to the 2006 injury and the claimant was the only party with an incentive to overcome the DIME report on

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apportionment. For obvious reasons the respondents had no interest in arguing that the DIME’s opinion on apportionment was overcome by clear and convincing evidence, nor did they have any interest in creating a factual record supporting that position. We conclude that given the record before the ALJ, she did not err in concluding that the DIME report on apportionment was not overcome by clear and convincing evidence. There is substantial evidence in the form of the voluminous medical record that a portion of the claimant’s impairment pre-existed her 2008 injury and should be apportioned consistent with the DIME report. The ALJ did not err in concluding that the report was not overcome by clear and convincing evidence.

IT IS THEREFORE ORDERED that the ALJ’s order dated December 21, 2010, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

_______________________ John D. Baird

_______________________ Curt Kriksciun

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MAXINE MEDINA-WEBER, LITTLETON, CO, (Claimant).

DENVER PUBLIC SCHOOLS, Attn: MS KAREN BRIGHT/MS ANNETTE SOLANO, DENVER, CO, (Employer).

FOGEL, KEATING, WAGNER, POLIDORI SHAFNER, PC, Attn: BRADLEY UNKELESS, ESQ., DENVER, CO, (For Claimant).

NATHAN, BREMER, DUMM MYERS, PC, Attn: ANNE SMITH MYERS, ESQ., DENVER, CO, (For Respondents).

DENVER PUBLIC SCHOOLS, Attn: STEPHEN FINLEY, DENVER, CO, (Other Party).

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