IN THE MATTER OF THE CLAIM OF GENOA ADAMS, Claimant, v. MANPOWER, Employer, and CNA, Insurer, Respondents.

W.C. No. 4-389-466.Industrial Claim Appeals Office.
August 2, 2005.

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Muramoto (ALJ). The claimant contends the ALJ erred in declining to “strike” as untimely the respondents’ application for a Division-sponsored independent medical examination (DIME). The claimant further contends the ALJ erred in finding that the DIME physician’s impairment rating was not overcome by clear and convincing evidence. Finally, the claimant contends the ALJ erred in determining a date of maximum medical improvement (MMI) which is inconsistent with the respondents’ final admission of liability (FAL) and the prior ruling of ALJ Wheelock. We affirm the ALJ’s order with respect to the impairment rating. We dismiss without prejudice the claimant’s arguments concerning the date of MMI.

This case has a complex procedural history which is relevant to the issues for review. The claimant sustained a compensable back injury on July 13, 1998. The injury occurred when the claimant twisted and reached to the left, and immediately developed pain in her low back radiating into the left leg.

The claimant received conservative treatment until February 2, 1999, she was placed at MMI by the initial authorized treating physician (ATP), Dr. Tyler. Dr. Tyler assessed a 12 percent whole person impairment rating, which was based on 5 percent impairment for a specific disorder of the lumbar spine, and 7 percent impairment for reduced range of motion (ROM) in flexion and extension of the lumbar spine. Although the ALJ’s order does not reflect this fact, the respondents apparently filed an uncontested FAL and paid permanent partial disability (PPD) benefits consistent with Dr. Tyler’s rating. (See Respondents’ FAL dated December 10, 2002, claiming offset of $14,918.60 for PPD benefits paid under FAL dated August 23, 1999).

The claimant subsequently alleged that her condition worsened and sought additional temporary total disability (TTD) and medical benefits. In an order dated December 13, 2000, ALJ Wheelock found the claimant’s condition worsened on January 20, 2000, and awarded medical benefits for treatment by Dr. Reece and TTD benefits commencing January 20.

The claimant received conservative treatments from Dr. Reece until January 2002 when he moved and transferred her care to Dr. Rook. Dr. Rook adjusted the claimant’s medications and placed her at MMI on March 29, 2002, with diagnoses of myofascial pain syndrome, sacroiliac (SI) joint dysfunction, piriformis syndrome and deconditioning. Dr. Rook assigned a 28 percent whole person impairment rating, based on 5 percent impairment for a specific disorder of the lumbar spine, 17 percent impairment for reduced range of motion in the lumbar spine, and 9 percent impairment for depression.

On June 25, 2002, the respondents filed a notice and proposal to select a DIME. The parties failed to agree upon a physician to conduct the DIME, and on August 28, 2002, the respondents filed an application for a DIME with the Division of Workers’ Compensation (Division).

The DIME was performed on October 16, 2002. The DIME physician assessed a 5 percent whole person impairment based on a specific disorder of the lumbar spine, but did not assign any impairment for reduced ROM or depression. In his report the DIME physician noted medical records documenting the claimant’s history of “exaggerated pain behaviors” and the absence of clinical findings and diagnostic studies “that would suggest a significant pain generator.” He further stated that he did believe the injury caused any depression and the “underlying behaviors” that he observed during the DIME may be the result of a “long-term problem that may have existed prior to her current presentation.”

The claimant sought a hearing seeking permanent total disability benefits or, in the alternative, to overcome the DIME physician’s impairment rating and obtain additional PPD benefits. As a precursor to the PPD issue the claimant argued the respondents’ application for a DIME was untimely and should have been stricken.

The ALJ denied the claim for permanent total benefits, and that issue has not been appealed. Next, the ALJ rejected the argument that the respondents’ DIME application was untimely. The ALJ ruled that failure to file a timely notice and proposal to select a DIME is jurisdictional under § 8-42-107.2(2), C.R.S. 2004, but failure to file a timely “application” for a DIME is not. Further, crediting the reports and testimony of the DIME physician, and the corroborating testimony of Dr. McCranie, the ALJ found the claimant failed to overcome the DIME physician’s impairment rating by clear and convincing evidence. Thus the ALJ determined the claimant “has a permanent impairment rating of 5 percent of the whole person for lumbar pain and rigidity,” but no psychological impairment.

Finally, the ALJ determined that the claimant reached MMI on March 26, 1999. According to the ALJ, that was the date of MMI selected by the DIME physician. The ALJ reserved all other issue for future determination.

I.
On review, the claimant first contends the ALJ erred in refusing to strike the respondents’ application for a DIME and treat Dr. Rook’s 28 percent whole person impairment rating as binding. Citing § 8-42-107.2(3)(a), C.R.S. 2004, and Rule of Procedure XIV (L)(3)(a)(3), 7 Code Colo. Reg. 1101-3 at 53, the claimant argues the respondents had 60 days from the date they filed the notice and proposal [June 25, 2002], or until Monday, August 26, 2002, to file their application for a DIME. The claimant points out that Rule XIV (L)(3)(a)(3) provides that the party disputing the DIME physician’s findings “shall file an application” for a DIME within “thirty days of the date of the failure to agree upon an IME physician.” (Emphasis added). The claimant asserts that the mandatory language of the rule creates a jurisdictional bar to consideration of the DIME. Alternatively, the claimant argues that the statute and rule combine to create a 60 day “statute of limitations” for the filing of a DIME application. We disagree with these arguments.

There is no doubt that § 8-42-107.2(2)(b), C.R.S. 2004, erects a jurisdictional barrier to challenging an ATP’s findings of MMI and impairment if the respondents do not file a notice and proposal to select a DIME within 30 days of the date the ATP’s findings are mailed. This is true because the statute expressly provides that if a timely notice and proposal are not filed the determinations of the ATP become “binding on all parties and the division.” See Whiteside v. Smith, 67 P.3d 1240, 1246 (Colo. 2003) (payment for a DIME is “mandatory, jurisdictional prerequisite to challenge” MMI and impairment determinations of ATP); Peregoy v. Industrial Claim Appeals Office, 87 P.3d 261
(Colo.App. 2004); Town of Ignacio v. Industrial Claim Appeals Office, 70 P.3d 513 (Colo.App. 2002) (ALJ lacks jurisdiction to resolve dispute concerning ATP’s MMI determination unless DIME conducted).

However, we have previously held that the failure to file a application for a DIME within the time limits established by Rule XIV (L)(3)(a)(3) does not constitute a “jurisdictional bar” to consideration of the DIME. In Reichert v. Maxtor Corp.,
W.C. No. 4-585-635 (April 4, 2005), we observed that a statute creates a jurisdictional bar to a claim only if the language clearly indicates that failure to comply with its terms bars the claim, that filing is a condition to the existence of the claim, or that failure to comply deprives a court of jurisdiction. Cf. Estate of Kubby v. Shaffer, 929 P.2d 55, 57 (Colo.App. 1996) Reichert notes that § 8-42-107.2(3)(a) provides that in cases of failed negotiations for selection of a DIME physician the insurer must notify the Division within thirty days, and then the Division then has 10 days to initiate selection of the DIME physician. Thus, the statute contains no requirement,
jurisdictional or otherwise, concerning the filing of an “application” for a DIME. Further, as we stated in Reichert,
the Director of the Division cannot enact jurisdictional restrictions on claims which are not contemplated by the Act itself. See Saxton v. Industrial Commission, 41 Colo. App. 309, 584 P.2d 638 (1978).

Neither do we agree with the claimant that Rule XIV (L)(3)(a)(3) can be interpreted as creating an administrative “statute of limitations” for obtaining a DIME. As noted, the Act contains no “statute” which predicates the right to a DIME on the timely filing of an “application” for a DIME, and the Director may not create such a requirement by adopting a rule. See Pena v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 03CA0387, November 18, 2004, as modified, May 26, 2005) (Director’s power to adopt rules and regulations does not empower Director to impose penalties not authorized by the Act); Gardner v. Friend, 849 P.2d 817 (Colo.App. 1992) (administrative review provisions of the Act are “definitive and organic” and need not be supplemented by other procedural mechanisms); Saxton v. Industrial Commission, supra. In any event, we do not understand Rule XIV (L)(3)(a)(3) was adopted in an effort to create a “statute of limitations.” Rule of Procedure XI (G), 7 Code Colo. Reg. 1101-3 at 42, provides that violation of “any rule” entitles the Director to impose penalties under § 8-43-304(1), or impose penalties otherwise authorized by the Act. Thus, the requirement to file an application for a DIME is enforceable without being interpreted as a limitation on the right to pursue a DIME.

II.
The claimant next contends the ALJ erred in finding that she failed to overcome the DIME physician’s impairment rating by clear and convincing evidence. The claimant argues the DIME physician’s impairment rating is erroneous as a matter of law because it excludes ROM impairment based on valid measurements. The claimant also argues that the ALJ was required to include a rating for psychological impairment of 1 to 3 percent because the claimant was prescribed medications. We are not persuaded.

It is true that impairment ratings are to be based on the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides). Section 8-42-101(3.7), C.R.S. 2004; § 8-42-107(8)(c), C.R.S. 2004. However, it is now well established that the questions of whether a rating physician has complied with the AMA Guides, and ultimately whether the rating itself has been overcome, are questions of fact for determination by the ALJ, not questions of law. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117
(Colo.App. 2004). Inherent in this rule is the concept that a deviation from the AMA Guides rating protocols does not automatically mean the DIME physician’s rating has been overcome as a matter of law. Wilson v. Industrial Claim Appeals Office, supra (proof that DIME deviated from AMA Guides by failing to record ROM measurements did not require conclusion that measurements were invalid).

Because these issues are factual in nature, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004. This standard of review requires that we consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, supra.

Here the DIME physician testified that it is permissible to exclude numerically “valid” lumbar ROM measurements from the overall rating if the measurements are determined to be inconsistent with the DIME physician’s clinical evaluation and observations. The DIME physician testified that the claimant exhibited such an “exaggerated lack of effort” during the examination that the ROM measurement could not be considered suggestive of actual impairment. This was particularly true since the claimant stated she could not lie supine for the purpose of conducting straight leg raising tests needed to validate the ROM impairment. The DIME physician also emphasized the absence of any objective tests or data tending to corroborate the existence of impairment. (Tr. January 22, 2004, P. 210-213). The DIME physician’s opinion was corroborated by the testimony of Dr. McCranie. (Tr. P. 71).

We have previously upheld the exclusion of statistically “valid” ROM measurements where the impairment did not correlate with the rating physician’s clinical observations. Fausnacht v. Inflated Dough, Inc., W.C. No. 4-160-133 (July 20, 1999) aff’d., Fausnacht v. Industrial Claim Appeals Office,
(Colo.App. No. 99CA1499, May 4, 2000). Further, the Court of Appeals has emphasized that the rating of impairment under the AMA Guides requires a clinical evaluation and comparison of the data obtained to the rating criteria contained in the guides Wackenhut Corp. v. Industrial Claim Appeals Office, 17 P.3d 202
(Colo.App. 2000) (DIME could, consistent with AMA Guides, decline to apportion impairment of the lumbar spine to a prior injury where clinical evaluation and review of records showed industrial injury was to a separate area of the lumbar spine). In this case substantial, albeit conflicting, evidence supports the ALJ’s determination that the DIME physician acted properly when excluding the ROM measurements from the overall rating, and this determination was not overcome by clear and convincing evidence.

Similarly, the ALJ was not required to conclude the DIME physician’s rating was overcome because the DIME physician failed to repeat the ROM measurements. The DIME explained that he saw no reason to repeat the measurements considering that the claimant refused to lie down for three years prior to the DIME, and there was no reason to believe she would do so if he repeated the measurements.

Moreover, the ALJ was not required to credit the opinions of Dr. Rook. The respondents substantially attacked Dr. Rook’s credibility concerning the diagnoses of SI joint dysfunction and piriformis syndrome. The weight to be accorded Dr. Rook’s testimony was an issue of fact for the ALJ.

Neither do we find any error in the ALJ’s finding that the claimant failed to overcome the DIME physician’s decision not to award impairment for depression. The DIME physician and Dr. McCranie both testified that the rating of mental impairment requires a DSM-IV diagnosis, and that none was present here. Moreover, the DIME physician explained why he found that the claimant’s psychological symptoms were not caused by the injury, but were instead preexisting. The DIME physician pointed to specific medical documentation supporting his position. (Tr. January 22, 2004, Pp. 218-229). The DIME physician’s determination that a particular condition is not causally-related to the industrial injury must be overcome by clear and convincing evidence, and the ALJ was not required to make such a finding on this record. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).

III.
The claimant contends the ALJ erred in determining that she reached MMI in March 1999. The claimant argues this finding is inconsistent with ALJ Wheelock’s subsequent determination that the claimant’s condition worsened, and with the respondents’ own FAL dated December 10, 2002, which admits the claimant reached MMI for the second time on March 29, 2002. However, this portion of the ALJ’s order is not final and appealable under §8-43-301(2), C.R.S. 2004. The ALJ’s finding concerning the date of MMI did not result in the denial of any benefits or penalties, nor does it require the payment of any benefits or penalties. Thus, we need not consider the issue at this time. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843, 846 (Colo.App. 1989) (order may be partially final and reviewable and partially interlocutory).

We recognize the respondents have claimed an offset based on the prior payment of PPD benefits, and that the date of MMI may have some relevance to the final resolution of that issue. However, the parties did not litigate the offset question and the ALJ did not rule upon it. To the contrary, the ALJ reserved for future determination those issues not specifically addressed in the order. See City and County of Denver v. Industrial Claim Appeals Office, 58 P.3d 1162 (Colo.App. 2002).

IT IS THEREFORE ORDERED that the claimant’s petition to review is dismissed without prejudice insofar as it concerns the issue of MMI.

IT IS FURTHER ORDERED that the ALJ’s order dated December 23, 2004, is otherwise affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

____________________ David Cain
____________________ Robert M. Socolofsky

Genoa Adams, Colorado Springs, CO, Christopher Lam, Manpower, Dallas, TX, CNA, c/o Judy McKim, Continental Casualty c/o RSKCo, Denver, CO, Patrick C.H. Spencer, II, Esq., Colorado Springs, CO, (For Claimant)

Jeffrey C. Fleischner, Esq., Denver, CO, (For Respondents).