W.C. No. 4-513-931.Industrial Claim Appeals Office.
October 9, 2003.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Henk (ALJ) which found the respondents failed to overcome the impairment rating of the Division-sponsored independent medical examination (DIME) physician by clear and convincing evidence. The respondents contend the ALJ failed to resolve conflicts in the DIME physician’s rating and that the DIME physician did not properly apply the AMA Guides. We affirm.
The claimant sustained a back injury in June 2001. The treating physician placed the claimant at maximum medical improvement on December 19, 2001. The treating physician diagnosed lumbar strain with mild degenerative disc disease and facet syndrome, and assigned a 10 percent whole person impairment rating. This rating was based on 7 percent impairment for a specific disorder of the spine and 3 percent impairment for reduced range of motion on lumbar extension.
The claimant underwent a DIME on the issue of medical impairment. The DIME physician examined the claimant on three occasions. On October 30, 2002, the date of the last examination, the DIME physician diagnosed lumbosacral strain and sacroiliac joint dysfunction and assigned a combined 21 percent whole person impairment rating. This rating was based on five percent impairment for a specific disorder of the lumbar spine and 17 percent impairment for reduced range of motion in the lumbar spine. The reduced range of motion incorporated 10 percent impairment for reduced lumbar flexion.
The respondents attempted to overcome the DIME physician’s impairment rating by presenting documentary evidence and the deposition testimony of the treating physician. The treating physician testified that the differences in range of motion impairment between his rating and that of the DIME physician are probably the result of “magnified illness behavior” by the claimant. Although the ALJ found the treating physician’s testimony to be “persuasive,” she also found that it did not rise to the level of clear and convincing evidence. Further, the ALJ fond the DIME physician’s reports are also persuasive.
I.
On review, the respondents first contend the ALJ failed to resolve inconsistencies in the DIME physician’s report. Specifically, the respondents contend the DIME physician’s ratings were inconsistent with respect to range of motion measurements and validity testing. Therefore, the respondents reason the ALJ’s findings are insufficient to support appellate review of the determination that the respondents failed to overcome the DIME physician’s rating. We find no error.
The respondents were required to overcome the DIME physician’s impairment rating by clear and convincing evidence. Section 8-42-107(8)(c), C.R.S. 2002. The questions of whether the DIME physician properly applied the AMA Guides in arriving at the rating, and whether the rating itself was overcome, 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).
Because these issues are factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This is a narrow standard of review which requires that we 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 from the record Wilson v. Industrial Claim Appeals Office, supra.
The ALJ is not held to a standard of absolute clarity when expressing findings of fact, as long as the basis of the award is discernible from the findings the ALJ does make. Further, we may consider findings necessarily implied by the ALJ’s order Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Here, we have no difficulty ascertaining the basis of the ALJ’s order from the findings of fact. As shown by Findings of Fact 3 and 4, the ALJ was fully aware the claimant demonstrated discrepancies in range of motion testing and validity measures between the three evaluations by the DIME physician. However, in Finding of Fact 5 the ALJ credited the DIME physician’s final report which showed the claimant sustained a 21 percent whole person impairment. In that report, the DIME physician expressed concern that he did not have access to the treating physician’s rating worksheets, but also stated “the 21 percent whole person impairment remains the most accurate impairment within the rules and regulations as well as statutory considerations pertaining to this particular evaluation.” Thus, insofar as the DIME physician’s reports may be classified as inconsistent, the order demonstrates the ALJ implicitly resolved the inconsistencies and determined that the DIME physician assigned a 21 percent rating See Lambert Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656 (Colo.App. 1998) (ALJ’s order read as a whole showed the ALJ resolved inconsistency in DIME physician’s opinions, then correctly assigned the burden of proof to overcome the DIME physician’s rating).
II.
The respondents next contend the ALJ erred as a matter of law in finding the respondents failed to overcome the DIME physician’s rating. In support, the respondents rely on a provision of the AMA Guides which provides that in cases where the results of an impairment evaluation are “not consistent with those in the record, the step of determining impairment is meaningless and should not be carried out until communication between the involved physicians or further clinical evaluation occurs.” The respondents assert that because the DIME physician did not contact the treating physician to discuss the disparity in range of motion measurements, the DIME physician violated the AMA Guides and his rating was overcome. We perceive no error.
We assume, arguendo, that the respondents raised this argument to the ALJ and it is properly before us. First, we note that the provision of the AMA Guides cited by the respondents provides for direct communication or further clinical evaluation. AMA Guides, Chapter 1.2. Here, the DIME physician engaged in “further clinical evaluation” by examining the claimant on three separate occasions. Consequently, we cannot say as a matter of law that that the ALJ was required to find a violation of the AMA Guides Compare Interpretive Bulletin of the Director of the Division of Workers’ Compensation, November 19, 2001, “Resolving Diverging Opinions When Rating Impairment” (the Division Independent Medical Examiner is not required to communicate with the physician whose rating is under challenge if the disparity in ratings is addressed through clinical evaluation).
Moreover, as noted above, the question of whether the DIME physician properly applied the AMA Guides, and ultimately whether the rating has been overcome, are questions of fact. The ALJ was persuaded that the DIME physician’s rating was not overcome, and this record reveals no basis for interfering with that factual determination. It was for the ALJ to determine the weight and credibility of the expert medical opinions offered in this case, and we cannot say she erred as a matter of law in determining that the treating physician’s opinion was insufficient to overcome the DIME physician’s rating by clear and convincing evidence. We specifically note that the DIME physician and treating physician provided somewhat different diagnoses. Further, the DIME physician’s final report indicates the claimant’s range of motion measurements met validity criteria.
Insofar as the respondents make other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 24, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Dona Halsey
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 October 9, 2003 by A. Hurtado.
Sandra Bruning, 472 E. 78th Dr., Thornton, CO 80229
Robinson Dairy, P.O. Box 5774, Denver, CO 80217
American Casualty Insurance Company, c/o Wendy Stalkfleet, CNA, P.O. Box 17369, Denver, CO 80217
Ligita S. Bardulis, Esq., 1600 Pennsylvania St., Denver, CO 80202 (For Claimant)
Michael A. Perales, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)