W.C. No. 4-490-054Industrial Claim Appeals Office.
November 13, 2003
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Klein (ALJ), which determined the claimant failed to overcome the impairment rating of the Division- sponsored independent medical examination (DIME) physician by clear and convincing evidence. We affirm.
The claimant sustained a compensable back injury in January 2001. Based on x-rays, the claimant was diagnosed with a an L1 compression fracture of the lumbar spine.
In August 2001 Dr. Burke began treating the claimant. Dr. Burke ordered an MRI which confirmed the existence of the L1 compression fracture and also revealed bulging discs at L3-4 and L4-5. On December 14, 2001, the claimant underwent a functional capacities evaluation (FCE) which indicated the claimant was “in the maximum range for magnified illness behavior” and that the claimant’s range of motion (ROM) measurements were invalid.
Dr. Burke examined the claimant on December 20, 2001, and placed the claimant at maximum medical improvement (MMI). Dr. Burke recorded that the claimant’s ROM measurements were again invalid and she was “unratable” because of her illness behaviors and failure to give “good effort.” Dr. Burke also examined the claimant on April 18, 2002, and the ROM measurements were again invalid. Dr. Burke assigned a 5 percent whole person impairment rating for the compression fracture, but nothing for reduced ROM.
The claimant underwent a DIME on the issue of impairment and, like the treating physician, the DIME physician assigned a 5 percent rating for the compression fracture. The DIME physician also reported that the ROM measurements were invalid and the claimant exhibited non-physiologic pain behaviors.
The claimant sought to overcome the DIME physician’s impairment rating by presenting the report of an IME physician which she retained. The IME physician reported obtaining valid ROM measurements of the lumbar spine, and opined the claimant is entitled to a rating for the bulging disc at L3-4. Consequently, the IME physician opined the claimant should receive 7 percent impairment for reduced ROM in the lumbar spine, 7 percent impairment for the disc, and these ratings should probably be combined with the rating for the L1 compression fracture.
The ALJ found the claimant failed to meet the burden of proof to overcome the DIME physician’s impairment rating by clear and convincing evidence. In support of this determination the ALJ discredited the report of the claimant’s IME physician, finding that it was “simply not credible.” The ALJ noted the IME physician obtained valid ROM measurements after four other measurements were reported as invalid, and that the IME assigned impairment for the disc, an area “not previously diagnosed and/or treated” as part of the claimant’s injury.
I.
On review, the claimant first contends the DIME physician’s rating is “invalid on its face” because, contrary to the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides) and rules of procedure, the DIME physician completed only 5 ROM measurements before invalidating them, and did not request the claimant to return for a second set of measurements. We find no error.
The claimant had the burden to overcome the DIME physician’s impairment rating by clear and convincing evidence. Section 8-42-107(8)(c), C.R.S. 2003. The questions of whether the claimant demonstrated the DIME physician misapplied the AMA Guides, and ultimately whether the rating itself was incorrect are questions of fact for determination by the ALJ Wilson v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA2140,
August 14, 2003); McLane Western, Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo.App. 1999).
Proof of a deviation from the rating protocols of the AMA Guides does not require the conclusion that the rating itself is incorrect or has been overcome by clear and convincing evidence. Rather, proof of a deviation is evidence which the ALJ may weigh in deciding whether the party seeking to overcome the DIME physician’s rating has carried its burden of proof. Wilson v. Industrial Claim Appeals Office, supra; Rivale v. Beta Metals, Inc., W.C. No. 4-265-360 (April 18, 1998), aff’d., Rivale v. Industrial Claim Appeals Office, (Colo.App. No. 98CA0858, January 28, 1999) (stipulation that DIME physician violated AMA Guides by failing to repeat invalid lumbar flexion ROM measurements did not require conclusion that DIME rating was invalid and overcome as a matter of law).
Further, we note that when rating impairment a physician is required to determine all losses caused by the industrial injury. Hence, the DIME physician’s finding that an element of impairment was or was not caused by the industrial injury must be overcome by clear and convincing evidence Mosley v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA1788, September 11, 2003, as modified); Qual-Med v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998).
Here, even if the DIME physician deviated from the AMA Guides by failing to complete a full six ROM measurements, or by failing to require the claimant to return for additional measurements, the ALJ was not required to conclude that these alleged deviations from the AMA Guides demonstrated the invalidity of the DIME physician’s rating by clear and convincing evidence. As the ALJ recognized, prior to the DIME physician’s rating the claimant had failed to produce valid ROM measurements on three occasions, and exhibited such pain behaviors as to render any measurements “unratable.” The ALJ need not have assumed that an additional set of measurements would have produced valid ROM measurements. For the same reasons, the history of invalid ROM measurements provided ample basis for the ALJ to discredit the claimant’s IME physician who reported obtaining valid measurements after the DIME was completed.
Similarly, we perceive no basis to interfere with the order based on the allegation that the DIME physician violated Rule of Procedure XIV (L)(7), 7 Code Colo. Reg. 1101-3 at 57, concerning “IME Follow-up.” The rule applies if the DIME physician “recommends” a “return for range of motion validation.” The rule does not require the DIME to make such recommendations, nor does it provide that failure to conduct a follow-up requires invalidation of the DIME physician’s rating as a matter of law.
II.
The claimant next contends that her IME physician’s rating is a “more accurate reflection of actual impairment” and the ALJ should have found that the opinion constituted clear and convincing evidence to overcome the DIME physician’s rating. In support of this position the claimant argues her IME physician provided the most recent rating, obtained valid ROM measurements, and rated the disc.
However, the weight and credibility to be assigned the rating of the claimant’s IME physician was a matter for the ALJ. See Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). The ALJ was not required to credit the claimant’s IME physician because his examination was the most recent. That was a factor which the ALJ could weigh against other evidence and we have already discussed the discrepancies in the evidence concerning the ROM measurements.
Finally, the ALJ plausibly interpreted the DIME physician’s opinion, which was silent concerning the disc problems, as constituting an opinion that these problems are not related to the injury and not subject to a rating. See Mosley v. Industrial Claim Appeals Office, supra. Dr. Burke testified why he believes the disc findings are insignificant and not related to the claimant’s industrial injury. These reasons include the frequency of disc findings in patients of the claimant’s age, the absence of MRI evidence of nerve root compression, and the fact that the problems appear to be on the opposite side from most of the claimant’s symptoms. (Burke Depo. P. 8). Under these circumstances, the ALJ was not required to credit the IME physician’s rating.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 7, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the Petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on November 13, 2003 by A. Hurtado.
Maria D. Almanza, 1725 Burlington Pl., Denver, CO 80221
Majestic Industries, 16303 E. 32nd Ave., Aurora, CO 80011
American States Insurance Co., c/o Joseph Barbara, SAFECO Insurance Companies, 14123 Denver West Pkwy., Golden, CO 80401
John M. Connell, Esq., 6750 Stapleton S. Drive, #200, Denver, CO 80216 (For Claimant)
T. Paul Krueger, II, Esq. and Sean M. Knight, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)