IN THE MATTER OF THE CLAIM OF GREG LEADENS, Claimant, v. UNITED AIRLINES, Employer, and GALLAGHER BASSETT SERVICES, Insurer, Respondents.

W.C. No. 4-715-918.Industrial Claim Appeals Office.
November 1, 2010.

FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Jones (ALJ) dated May 13, 2010, that found the claimant had overcome the opinion of the Division-sponsored independent medical examination (DIME) physician and that he suffered a whole person impairment rather than a scheduled impairment. We affirm.

The claimant suffered an admitted industrial injury on January 4, 2007 while closing an engine panel. The claimant felt an acute onset of pain and discomfort in the area of the rotator cuff. The claimant’s authorized treating physician (ATP) placed the claimant at maximum medical improvement (MMI) on November 20, 2007 and rated the claimant as having a ten percent upper extremity impairment which converts to a six percent whole person impairment. The claimant underwent a DIME on April 7, 2008 (First DIME). The First DIME physician opined that the claimant was not at MMI. The claimant returned to the ATP, received further medical treatment and was eventually released.

The respondents requested a follow-up DIME. Because the First DIME physician no longer performed such examinations the claimant was seen by a different DIME (Second DIME) physician. The Second DIME physician found that the claimant was at MMI as of November 20, 2007, the date the ATP had originally placed the claimant at MMI. The Second DIME physician determined that the claimant had an upper right extremity impairment of six percent which converted to a four percent whole person impairment. The claimant sought to overcome the opinion of the Second DIME physician on impairment and to establish that the ten percent upper extremity impairment should be converted to a six percent whole person impairment.

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The ALJ determined the opinion of the Second DIME physician had been overcome by clear and convincing evidence. The ALJ also found that the claimant had established that the functional impairment was not on the schedule of injuries and therefore awarded the claimant a six percent whole person rating. The respondents bring this appeal.

I.
The respondents argue that the ALJ erred by finding that the claimant overcame the DIME physician’s impairment rating by clear and convincing evidence. We are not persuaded to interfere with the ALJ’s determination.

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, supra. 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; § 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.

The respondents argue that the ALJ incorrectly imported the statutory concept of MMI into her determination that the Second IME physician’s impairment rating had been overcome. The respondents argue that the ALJ in reaching her opinion had emphasized that the Second DIME found that the claimant was at MMI as of November 20, 2007 even though the First DIME had disagreed with that date and even the ATP had eventually disagreed with that date. The respondents contend that whether the Second DIME was in error on the issue of MMI has no bearing on the issue of impairment.

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In her order the ALJ found that the ATP had originally placed the claimant at MMI on November 20, 2007. The First DIME physician had opined that the claimant was not at MMI and after the claimant returned for treatment the ATP had agreed with the First DIME physician that the claimant was not at MMI. The ALJ also noted that the Second DIME physician did not even have a copy of the first DIME physician’s report. The respondents argue that because MMI and permanent impairment are separate legal concepts the ALJ incorrectly considered the issue of MMI when addressing whether the Second DIME physician’s rating was overcome by clear and convincing evidence.

In our view the ALJ’s election to consider the issue of whether the Second DIME incorrectly evaluated the date of MMI does not constitute reversible error. Whether a mistake was made by the Second Dime physician in determining the date of MMI may be viewed as probative evidence which a rational fact finder would accept as supporting a conclusion that the DIME physician’s opinion on impairment had been overcome. Because there is substantial evidence supporting the determination that the claimant had demonstrated that the Second DIME physician’s rating was incorrect we must uphold that determination. Section 8-43-301(8), C.R.S.

II.
The respondents next contend the ALJ erred by finding the claimant’s scheduled impairment rating should be converted to a whole person impairment. We are not persuaded that the ALJ committed reversible error.

The question of whether the claimant sustained a “loss of an arm at the shoulder” within the meaning of § 8-42-107(2)(a), C.R.S. or a whole person medical impairment compensable under § 8-42-107(8)(c), C.R.S., is one of fact for determination by the ALJ. In resolving this question, the ALJ must determine the situs of the claimant’s “functional impairment,” and the site of the functional impairment is not necessarily the site of the injury itself. Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo. App. 1996); Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo. App. 1996).

Because the issue is 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. As noted above, this standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003).

The respondents argue that the ALJ improperly concluded that the claimant was entitled to a whole person impairment rating as a matter of law because the claimant had “pain, discomfort, and loss of function to these structures of his shoulder, not his arm.”

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The respondents cite Strauch v. PSL Swedish Healthcare System for the proposition that the existence of damage to the structures of the shoulder does not compel a finding of a functional impairment in an area of the body not listed on the schedule of disabilities.

However, in our view the ALJ used the correct legal standard. In her order she cited Strauch v. PSL Swedish Healthcare System
and noted that the site of functional impairment, not necessarily the site of the initial harm, is dispositive in deciding whether the loss is one listed on the schedule of disabilities.

The respondents point to evidence that “above” and “below” are basically not medical terms. Therefore, they contend that the ALJ’s reliance on evidence showing functional impairment “above” the glenohumeral joint is incorrect. However, the ALJ is not required to use medical terminology in her determination of where the situs of the claimant’s “functional impairment” was.

The ALJ relied in part on the testimony of the claimant, which she found to be credible, in determining the site of the functional impairment. The ALJ found that the claimant suffered pain at the top of his shoulder, which limited his ability to perform the function of carrying objects on his shoulder, lifting above the head and sleeping. The claimant testified that as a result of the restrictions he had from the industrial injury his pain complaints required him to adapt his body to different positions in order to continue doing his job. The ALJ relied upon medical records showing that the glenohumeral joint was the body part impaired and this is above the humerus. The ALJ noted the medical testimony describing that the four muscles, which make up the rotator cuff, all have their points of origin on the trunk of the claimant’s body. The ALJ found that the claimant had reduced function in structures which were above the shoulder joint. In our view this constitutes substantial evidence in the record supporting the ALJ’s determination that the claimant be awarded a whole person rating. Therefore we must uphold that determination. Section 8-43-301(8).

IT IS THEREFORE ORDERED that the ALJ’s order dated May 13, 2010 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ John D. Baird

____________________________________ Thomas Schrant

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GREG LEADENS, FRANKTOWN, CO, (Claimant).

UNITED AIRLINES, Attn: TRACY VENTER, DENVER, CO, (Employer).

GALLAGHER BASSETT SERVICES, Attn: ANGIE KITTS/KIMBERLY WORKMAN, ENGLEWOOD, CO, (Insurer).

LAW OFFICE OF O’TOOLE SBARBARO, PC, Attn: JOHN SBARBARO, ESQ., DENVER, CO, (For Claimant).

RITSEMA LYON, PC, Attn: LYNN P. LYON, ESQ., DENVER, CO, (For Respondents).

UNITED AIRLINES, CHICAGO, IL, (Other Party).

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