W.C. No. 4-410-557Industrial Claim Appeals Office.
September 6, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Wheelock (ALJ) which awarded permanent partial disability benefits based on medical impairment of 23 percent of the whole person. The respondents argue the ALJ erred as a matter of law in finding the claimant overcame the Division-sponsored independent medical examination (DIME) physician’s finding that the claimant was not entitled to an impairment rating based on reduced range of motion in the cervical and lumbar spine. We affirm.
The claimant sustained an injury to his cervical and lumbar spine on October 28, 1998, and reached maximum medical improvement on May 26, 2000. The treating physician found the claimant sustained a 25 percent whole person impairment, based on specific disorders of the cervical and lumbar spine, plus reduced range of motion in the lumbar and cervical spine.
The claimant underwent a DIME on September 3, 2000. The DIME physician found the claimant sustained a 9 percent whole person impairment based on specific disorders of the cervical and lumbar spine. The DIME physician also testified the claimant exhibited reduced range of motion in the cervical and lumbar spine, and that the reduced range of motion measurements were “valid” under the criteria established by the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides), nevertheless the DIME physician declined to include range of motion impairment in the final impairment rating. The DIME physician opined that based on medical records suggesting excessive pain behaviors, the DIME physician’s own observation of excessive pain behaviors and movements inconsistent with the claimant’s reported pain, and the absence of objective medical findings, the claimant was exhibiting “symptom magnification” and had not sustained any functional reduction in his range of motion. Consequently, the DIME physician concluded that a “fair impairment rating for this gentleman is for specific disorders only and would equate to 9 percent whole person.”
The claimant presented the testimony of the treating physician. The treating physician distinguished between “symptom magnification,” which he defined as an unconscious response to chronic pain, and “malingering” which is a conscious effort to deceive. The treating physician opined the claimant may magnify his symptoms because of chronic pain associated with the injury, but the AMA Guides do not permit an evaluator to disregard valid range of motion measurements unless there is evidence of malingering. (Tr. p. 45).
Crediting the opinions of the treating physician, the ALJ concluded the claimant overcame the DIME physician’s 9 percent impairment rating by clear and convincing evidence. The ALJ found the claimant demonstrates some degree of “symptom magnification,” which may affect his range of motion, but the claimant is not “malingering.” Consequently, the ALJ determined the AMA Guides require inclusion of the valid range of motion measurements when assessing the overall impairment rating. The ALJ also stated that rating physicians “are not free to simply add to or subtract from the impairment rating determined pursuant to the AMA Guides for the sole purpose of arriving at a `fair’ result.” Thus, the ALJ found claimant is entitled to permanent disability benefits based on impairment of 23 percent of the whole person.
The respondents contend the ALJ erred as a matter of law in concluding the DIME physician could not omit the range of motion measurements based on the claimant’s “symptom magnification.” In support of this argument, the respondents rely on our decision in Otero v. St. Mary Corwin Hospital, W.C. No. 4-346-007 (May 4, 2000), aff’d., Otero v. Industrial Claim Appeals Office, (Colo.App. No. 00CA0963, November 30, 2000) (not selected for publication). We perceive no error.
The DIME physician’s impairment rating is binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(c), C.R.S. 2000; Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Determining whether the DIME physician properly applied the AMA Guides in arriving at the rating, and ultimately whether the rating itself has been overcome, are questions of fact for determination by the ALJ. Wackenhut Corp. v. Industrial Claim Appeals Office, 17 P.3d 202 (Colo.App. 2000).
As a general matter, we do not dispute that a DIME physician may consider data collected during a clinical evaluation, including history, clinical findings, and functional measurements, when arriving at a rating. In fact the court in Wackenhut Corp., supra, noted that the AMA Guides requires such evaluation, and instructs physicians to consider the individual claimant and his or her particular situation.
However, because determination of these issues is ultimately one of fact, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. Thus, we must defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record. Metro Moving and Storage Co. v. Gussert, supra.
Here, as we understand the ALJ’s order, she found as a matter of fact the DIME physician improperly applied the AMA Guides by concluding the claimant was not entitled to an impairment rating based on reduced range of motion. The ALJ relied on the testimony of the treating physician that, if the claimant suffers from chronic pain associated with an identifiable injury, the AMA Guides require an impairment rating based on valid range of motion measurements unless the claimant is engaged in an intentional effort to deceive the evaluator. Moreover, the DIME physician did not point to any provision in the AMA Guides which permits the assessment of an impairment rating based on the evaluator’s subjective opinion concerning what would be a “fair” rating. Finally, the ALJ found the claimant was not engaged in malingering. These findings are supported by substantial evidence in the record and must be upheld on review. Therefore, we may not interfere with the ALJ’s order.
Our conclusions in Otero do not justify a contrary conclusion. Although the facts in Otero present some similarities to this case, the ALJ in Otero found the DIME physician “did not believe that there was any causal connection between the claimant’s [cervical] range of motion deficits and her injury.” Here, if that was the DIME physician’s opinion, the ALJ found that opinion was overcome by clear and convincing evidence. Thus, unlike Otero, this is not a case where the alleged reduced range of motion was the result of the claimant’s intentional failure to cooperate with the measurement process. It follows the ALJ did not err as a matter of law in finding the DIME physician’s rating was overcome despite the claimant’s “symptom magnification.”
IT IS THEREFORE ORDERED that the ALJ’s order dated March 13, 2001, 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, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2000. 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 decision were mailed September 6, 2001 to the following parties:
Eddie Bernard, 9029 E. Mississippi Ave., C-104, Denver, CO 80231
Full Service Beverage, 2840 S. Zuni St., Englewood, CO 80110-1227
Continental Casualty Insurance Co./CNA, Dave Reed, RSKCo, P. O. Box 5408, Denver, CO 80217
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Matthew W. Tills, Esq., and David W. Smiley, Esq., 950 17th St., #2100, Denver, CO 80202 (For Respondents)
BY: A. Pendroy