W.C. No. 4-386-311Industrial Claim Appeals Office.
February 28, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) which determined the respondents overcame the cervical impairment rating of the Division-sponsored independent medical examination (IME) physician. We affirm.
On December 17, 1997, the claimant suffered a work-related injury when she slipped on a set of stairs and hit her left shoulder on the railing. The claimant subsequently complained of shoulder and neck pain.
Dr. Kuper rated the claimant’s permanent medical impairment as 6 percent of the upper extremity based on range of motion deficits in the left shoulder. Dr. Primack and Dr. Janssen assigned a 4 percent upper extremity rating. None of these physicians included a rating for permanent impairment to the cervical spine.
Dr. Jenkins conducted a Division-sponsored IME. Dr. Jenkins opined the claimant sustained 14 percent permanent medical impairment of the upper extremity. Dr. Jenkins also assigned 16 percent whole person impairment due to a range of motion deficits in the cervical spine and a specific disorder of the cervical spine under Table 53II(B) of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides). Dr. Jenkins’ combined rating was 23 percent whole person impairment.
Crediting the testimony of Dr. Kuper, Dr. Janssen and Dr. Primack, the ALJ found the respondents overcame the IME physician’s cervical impairment rating by clear and convincing evidence. In support the ALJ found that the claimant’s complaints of neck pain do not have anatomic or physiological correlation. The ALJ also found the claimant does not qualify for an impairment rating under Table 53II(B) of the AMA Guides because the claimant had no documented cervical injury and the AMA Guides do not allow the examining physician to rate impairment based on subjective pain complaints. Instead, the ALJ found that the claimant’s cervical pain is due to the shoulder injury, and that the pain is rateable as upper extremity impairment.
Further, the ALJ determined the IME physician failed to comply with the AMA Guides by not communicating with the treating physician to resolve the disparity in cervical impairment ratings. Under these circumstances, the ALJ determined it is highly likely the IME physician’s cervical impairment rating is incorrect. However, the respondents did not dispute the IME physician’s 14 percent upper extremity rating. Therefore, the ALJ ordered the respondents to pay permanent partial disability benefits based on 14 percent impairment to the upper extremity.
On review, the claimant contends that she complained of neck pain shortly after the injury, continued to complain of neck pain throughout Dr. Kuper’s treatment, and at the time of the IME. The claimant also argues that she had 6 months of medically documented neck pain and, therefore, the ALJ erred in finding she is not entitled to a rating under Table 53II(B) of the AMA Guides for a specific disorder of the cervical spine. Further, the claimant contends that because the AMA Guides were not offered as evidence, there is insufficient evidence to support the ALJ’s determination that the IME physician incorrectly applied the AMA Guides by assigning a cervical impairment rating. We reject these arguments.
Former § 8-42-107(8)(c), C.R.S. 1997 [amended in 1998 for injuries occurring on or after August 5, 1998], which applies to this claim, provides that the IME physician’s medical impairment rating is binding unless overcome by “clear and convincing evidence.” Clear and convincing evidence has been defined as evidence which is stronger than a preponderance, and must demonstrate that it is “highly probable” the IME 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).
It is now well established that the question of whether the IME physician’s rating has been overcome by “clear and convincing evidence” is a matter of fact for determination by the ALJ. Metro Moving Storage Co. v. Gussert, supra. In resolving this issue, the ALJ must consider the factual question of whether the IME physician properly applied the AMA Guides. Metro Moving Storage Co. v. Gussert, supra. We must uphold the ALJ’s finding that the IME physician’s rating was not overcome if supported by substantial evidence in the record. Qual-Med, Inc. v. Industrial Claim Appeals Office, supra.
In determining whether there is substantial evidence to support the ALJ’s determinations, we apply an exceedingly narrow scope of review and must defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the evidence. Section 8-43-301(8), C.R.S. 1999; Metro Moving and Storage Co. v. Gussert, supra. Evidence of the IME physician’s deviation from the AMA Guides is some evidence which the ALJ may consider in determining the overall question of whether the rating has been overcome Eg., Rivale v. Beta Metals, Inc., W.C. No. 4-265-360 (April 16, 1998), aff’d., Rivale v. Industrial Claim Appeals Office, (Colo.App. No. 98CA0858, January 28, 1999) (not selected for publication).
Admittedly, the AMA Guides were not offered as part of the evidentiary record. However, the ALJ had substantial, albeit
conflicting, expert medical testimony to support his factual determinations concerning the requirements of the AMA Guides.
Dr. Jenkins conceded that page 3 of the AMA Guides states that:
“If the findings of the impairment evaluation are not consistent with those in the record, the step of determining the percentage of impairment is meaningless [sic] should not be carried out until communication between the involved physicians or further clinical investigation resolves the disparity.”
(Jenkins depo. pp. 12, 16). However, Dr. Jenkins opined that the AMA Guides does not contemplate contact between the IME physician and the treating physicians to resolve a rating disparity where the IME is specifically requested to dispute the treating physician’s rating. (Jenkins depo. p. 20). The ALJ was not persuaded by Dr. Jenkin’s opinion. See Rules of Procedure, Part Further, Dr. Jenkins admitted that he made no effort to contact Dr. Kuper or Dr. Janssen to discuss their cervical impairment ratings. (Jenkins depo. pp. 12-13). Under these circumstances, the ALJ reasonably inferred that Dr. Jenkins did not comply with the AMA Guides.
In addition, Dr. Janssen testified that Table 53(II)(B) governs the impairment rating for an “intervertebral disc or soft tissue lesion.” (Janssen depo. p. 9). Both Dr. Janssen and Dr. Jenkins agreed that Table 53(II)(B) allows a physician to assign a rating for a specific disorder of the cervical spine which is:
“Unoperated, with medically documented injury and a minimum of six months of medically documented pain and rigidity with or without muscle spasm, associated with none-to-minimal degenerative changes on structural tests.”
(Jenkins depo. p. 8; Janssen depo. p. 9).
Dr. Kuper and Dr. Janssen testified that the application of Table 53II (B) requires an actual injury to the cervical spine before a rating can be assigned. They also opined that in the absence of a specific disorder of the cervical spine, range of motion deficits in the cervical spine are not rateable. (Tr. pp. 15-16; Janssen depo. pp. 12, 27). Dr. Jenkins admitted there was no radiographic evidence of a specific disorder of the cervical spine. (Jenkins depo. p. 11). Nevertheless, Dr. Jenkins’ opined that the claimant met the criteria for a rating under Table 53II(B).
As argued by the respondents, the record contains evidence the claimant did not report a cervical injury during her initial examination by Dr. Thompson on December 22, 1997. Further, the employer’s witness, Phil Wicke, stated the claimant originally reported injuring only her shoulder. (Tr. p. 37).
In his report of January 29, 1999, Dr. Janssen found no evidence of cervical radiculopathy, myofascial pain, whiplash injury or soft tissue injury to the cervical spine. (See also Janssen depo. pp. 4-5, 12). Dr. Kuper testified that there was no indication the claimant sustained an injury to the cervical spine. (Tr. pp. 13, 17, 33). Dr. Kuper and Dr. Janssen also testified that subjective pain complaints are insufficient to qualify for an impairment rating under Table 53II(B) due to a specific disorder of the cervical spine. (Tr. p. 14-15; Janssen depo. p. 10).
Within her sole prerogative as the fact finder, the ALJ resolved the conflict between Dr. Kuper, Dr. Jenkins and Dr. Janssen’s against Dr. Jenkins. The ALJ was most persuaded by Dr. Kuper’s and Dr. Janssen’s interpretation of the AMA Guides. Therefore, regardless of the claimant’s complaints of ongoing neck pain, there is substantial evidence in the record to support the ALJ’s finding that the claimant did not sustain a documented cervical injury which would support a rating under Table 53II(B) of the AMA Guides.
Moreover, Dr. Kuper testified that the AMA Guides direct impairment to be rated at the source of the pain only. (Tr. p. 31). Dr. Jenkins agreed. (Jenkins depo. pp. 22, 23). Dr. Primack delineated the claimant’s cervical pain as “ascending discomfort going into [the claimant’s] neck.” (Primack, March 6, 1998). Therefore, the ALJ reasonably inferred that Dr. Jenkins erred by including a rating for the claimant’s neck pain.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 14, 1999, 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, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed February 28, 2000
to the following parties:
Maria Arreola, 7595 Zuni St., #108, Denver, CO 80221 Claudia Campos, Coleman Natural Products, 5140 Race Court, #4, Denver, CO 80216
American Compensation Insurance, Lynn Estes, RTW Colorado, Inc., P.O. Box 6541, Englewood, CO 80155-6541 Robert P. Koehler, Esq., 681 Grant St., Denver, CO 80203 (For Claimant)
Douglas A. Thomas, Esq., 600 17th St., #1600N, Denver, CO 80202 (For Respondents)
BY: A. Pendroy