IN THE MATTER OF THE CLAIM OF BEN ABEYTA, Claimant, v. WACKENHUT SERVICES, Employer, and PINNACOL ASSURANCE, Insurer, Respondents.

W.C. No. 4-519-399.Industrial Claim Appeals Office.
September 16, 2004.

The claimant and the respondents petition to review a Supplemental Order issued by Administrative Law Judge Henk (ALJ) on April 12, 2004. The Supplemental Order incorporates the ALJ’s prior order of May 14, 2003. The respondents contend the ALJ erred in converting the claimant’s lower extremity impairment ratings to a whole person rating. The claimant contends the ALJ erred in denying medical benefits for treatment of his back pain. We affirm.

FINAL ORDER
A. HURTADO

The claimant sustained compensable injuries to both knees in October 2001. He underwent surgical repair of the right knee in January 2002, and the left knee in April 2002. By August 12, 2002, an authorized treating physician (ATP) placed the claimant at maximum medical improvement (MMI) for both knees and assigned impairment ratings for each lower extremity.

The claimant underwent a Division-sponsored independent medical examination (DIME) to determine MMI and rate his impairment. The DIME physician opined the claimant sustained 44 percent impairment of each lower extremity, which converts to an 18 percent whole person impairment of each extremity. The combined impairment rating was 33 percent of the whole person.

The DIME physician also noted the claimant complained of back pain . The DIME opined this pain represents a “secondary phenomenon due to postural demands in weight bearing based on his progressive knee arthritis and pain.” However, the DIME physician stated that the back pain does not warrant a separate impairment rating because there was no specific injury to the low back and no objective evidence of injury to the lumbar spine. Further, the DIME physician expected the back pain to return to pre-injury levels over time. The DIME physician recommended ongoing treatment for the knees, but no treatment was recommended for the back pain.

The claimant obtained an independent medical examination from a physician of her choosing, Dr. Gray. Dr. Gray opined the claimant sustained an 18 percent whole person impairment of the lumbar spine because an abnormal gait caused by the industrial injury aggravated a preexisting degenerative back condition. However, Dr. Gray also opined the claimant needs additional medical procedures including an MRI of the lumbar spine and bilateral EMG nerve conduction studies for “further treatment purposes and decisions.”

The claimant sought to overcome the DIME physician’s opinion that he sustained no ratable impairment of the lumbar spine. Alternatively, the claimant sought to have the lower extremity impairment ratings converted to a whole person rating for purposes of awarding permanent partial disability (PPD) benefits. The claimant also sought an order requiring the respondents to pay for the diagnostic tests recommended by Dr. Gray.

In the May 14 order, the ALJ found the claimant failed to overcome by clear and convincing evidence the DIME physician’s opinion that there is no ratable impairment of the lumbar spine. The ALJ further found the respondents failed to overcome the DIME physician’s opinion that the claimant’s back pain is causally-related to the industrial injury. However, the ALJ found the claimant proved by a preponderance of the evidence that the knee injuries have caused an altered gait which, in turn, has caused the claimant’s back pain resulting in “difficulty with sitting, standing, or walking.” The ALJ concluded the back pain evidences a functional impairment not found on the schedule of disabilities. Therefore, the ALJ converted the claimant’s scheduled lower extremity impairments to a whole person impairment rating and awarded PPD benefits based on impairment of 33 percent of the whole person.

The ALJ also found the claimant is entitled to ongoing medical benefits after MMI to treat the knees. However, the ALJ found the claimant failed to prove entitlement to the procedures recommended by Dr. Gray for evaluation of the back pain. In support, the ALJ noted that neither the DIME physician nor the ATP recommended ongoing back treatments or evaluation, and the ALJ discredited the contrary opinions of Dr. Gray.

I.
On review the respondents contend that because the claimant sustained an injury to the low back § 8-42-107(7)(b)(II), C.R.S. 2003, precluded the ALJ from converting the claimant’s extremity ratings to a whole person rating. The respondents cite our decision in Guzman v. KBP Coil Coaters, Inc.,
W.C. No. 4-444-246 (January 10, 2003), as authority for this proposition. We find no error.

Section 8-42-107(7)(b)(II) provides that where the industrial injury causes “a loss set forth in the schedule in subsection (2) of this section and a loss set forth in subsection (8),” the scheduled loss shall be compensated under the schedule and the nonscheduled loss shall be compensated under subsection (8). (Emphasis added). As recently explained in Warthen v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 04CA0506, September 9, 2004), this statute applies to “circumstances where a claimant sustains both scheduled and nonscheduled injuries arising from the same industrial accident.” Further, the statute contemplates that “without combining or adding individual impairment ratings, the scheduled injury is compensated as a scheduled injury, and a nonscheduled injury must be compensated as a whole person impairment.”

In Warthen, the court held that subsection (7)(b)(II) prohibited the conversion of a right upper extremity impairment to a whole person impairment based on symptoms which extended above the arm at the shoulder. The statute prohibited conversion because the DIME physician found the claimant had a separate, ratable whole person impairment of the cervical region, and the cervical impairment rating fully accounted for all functional impairment beyond the extremity.

Here, unlike the situation in Warthen, the DIME physician found the claimant had no separately ratable impairment of the lumbar region, and no party succeeded in overcoming that determination. Consequently, the claimant did not sustain measurable impairment to more than one part of the body so as to trigger subsection (7)(b)(II). Rather, the claimant sustained a single injury, and the question was whether that single injury caused functional impairment to a part of the body not found on the schedule of disabilities. Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996); Webb v. Circuit City Stores, Inc., W.C. No. 4-467-005 (August 16, 2002) (upholding conversion of lower extremity impairment to whole person impairmentsbased on back pain resulting from limp).

Guzman v. KBP Coil Coaters, Inc., supra, is not authority to the contrary. In fact, Guzman poses essentially the same fact pattern presented by Warthen, except that in Guzman the AL permitted conversion of the lower extremity rating to a whole person rating (based on back pain stemming from a limp), whil also awarding PPD benefits based on a separate whole person impairment for the claimant’s back condition. Consistent with the decision in Warthen, we held in Guzman that subsection (7)(b)(II) precluded the ALJ from converting the lower extremity impairment to a whole person impairment rating where the claimant also received a separate rating for the back. The error i Guzman was the ALJ’s failure to recognize that the claimant sustained two “injuries.”

II.
The respondents next contend that because the ALJ found the claimant’s back pain was caused by the industrial injury, it was inconsistent for the ALJ to convert the scheduled ratings to whole person ratings where the DIME physician gave a zero rating for the claimant’s back. However, we agree with the claimant that the respondents’ argument confuses the question of functional impairment with impairment ratings.

As stated in Strauch v. PSL Swedish Healthcare System, Inc., supra, the term “injury” as used in the statute refers to the “manifestation in a part or parts of the body which have been functionally impaired or disables as a result of the industrial accident.” Further, this determination is “distinct from and should not be confused with, the treating physician’s rating of physical impairment under the AMA Guides.917 P.2d at 368 see also, Walker v. Jim Fuoco Motor Co., 942 P.2d 1390
(Colo.App. 1997) (court has rejected argument that AMA Guides are controlling on situs of functional impairment). Thus, the mere fact that the DIME physician found the claimant did not suffer from a ratable impairment of the lumbar spine did not preclude the ALJ from finding the claimant sustained functional impairment beyond the “leg at the hip.” Section 8-42-107(2)(w), C.R.S. 2003.

Insofar as the respondents contend that the basis of the ALJ’s finding of functional impairment beyond the schedule is not clear, we disagree. The ALJ found the claimant’s knee injuries have caused a limp and resulting back pain. The back pain interferes with the claimant’s ability to stand, sit, and walk. This evidence amply supports the conclusion that the claimant has sustained functional impairment to a part of the body not found on the schedule of disabilities. Consequently, the order must be upheld. Warthen v. Industrial Claim Appeals Office, supra
(determination of situs of functional impairment must be affirmed if supported by substantial evidence).

III.
The claimant contends the ALJ erred in failing to award the diagnostic medical procedures recommended by Dr. Gray. We disagree.

Where, as here, the claimant seeks an award of medical benefits after MMI, the claimant must prove that the proposed procedures are reasonable and necessary to relieve the effects of the injury or to prevent deterioration of the claimant’s condition. The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ. Lerner v. Wal-Mart Stores, Inc., 865 P.2d 915 (Colo.App. 1993).

Because the issue is one of fact, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. 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, credibility determinations, and plausible inferences drawn therefrom. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).

Here, the ALJ noted that neither the DIME physician nor the ATP, despite being aware of the claimant’s back complaints, recommended the sophisticated diagnostic procedures suggested by Dr. Gray. Further, the ALJ did not find Dr. Gray’s opinion that the procedures are necessary to be credible. Because we may not interfere with the ALJ’s resolution of conflicts in the evidence, the denial of the requested benefits must be upheld. The fact that some evidence might support a contrary result is immaterial on review. Wilson v. Industrial Claim Appeals Office, supra.
IT IS THEREFORE ORDERED that the ALJ’s orders dated May 14, 2003, and April 12, 2004, are affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

_____________________________ David Cain
_____________________________ Kathy E. Dean

Ben Abeyta, Denver, CO, Wackenhut Services, c/o Albert Jerman, Rocky Flats Environmental Technology Site, Golden, CO, Legal Department, Pinnacol Assurance — Interagency Mail Janet Frickey, Esq., Lakewood, CO, for Claimant.

Anne Smith Myers, Esq. and Willow I. Arnold, Esq., Denver, CO, for Respondents.