W.C. No. 4-424-573Industrial Claim Appeals Office.
July 22, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Henk (ALJ) which awarded the claimant permanent partial disability benefits based on a medical impairment rating of 17 percent of the whole person. The claimant contends she overcame the rating of the Division-sponsored medical examination (DIME) physician as a matter of law. We affirm.
The claimant sustained a compensable low back injury which necessitated surgery. Ultimately the treating physician assessed a 27 percent impairment rating, which included 17 percent impairment for reduced range of motion. However, the treating physician apportioned out 8 percent impairment based on a prior injury.
The claimant underwent a DIME on the issue of impairment. The DIME physician assessed a 17 percent whole person rating based on a specific disorder of the spine and reduced range of motion. The range of motion impairment included 1 percent impairment for “lumbar right lateral flexion” and 1 percent for “lumbar left lateral flexion.” The DIME physician reduced the overall impairment rating to 11 percent based on preexisting impairment.
The claimant sought to overcome the DIME physician’s apportionment, and also challenged the DIME physician’s ratings for right and left lumbar lateral flexion. The ALJ held the apportionment was improper, and that determination is not now challenged. However, the ALJ rejected the claimant’s argument that, as a matter of law, the DIME physician misapplied Table 61 of the AMA Guides (of which the ALJ took administrative notice) in assessing two percent impairment for left and right lumbar lateral flexion. In this regard, the ALJ found the claimant presented no persuasive evidence that the DIME misapplied the AMA Guides, or even that the DIME physician used Table 61 in arriving at the rating.
On review, the claimant reiterates the argument the ALJ was compelled to find that as a matter of law, the DIME physician misapplied Table 61 in arriving at the ratings for lumbar lateral flexion. The claimant argues that Table 61 expressly applies to calculation of impairment for lumbosacral lateral flexion. Further, the claimant asserts Table 61 required the ALJ to conclude the DIME physician’s measurements for left and right lateral flexion mandated a 5 percent whole person impairment. We are not persuaded.
Although the respondent makes a contrary argument based on the wording of § 8-42-107(8)(c), C.R.S. 2001, a DIME physician is required to apply the provisions of the AMA Guides when determining the claimant’s medical impairment rating. Section 8-42-101(3.7), C.R.S. 2001; Wackenhut Corp. v. Industrial Claim Appeals Office, 17 P.3d 202 (Colo.App. 2000); Rule of Procedure XIX (A), 7 Code Colo. Reg. 1101-3. The finding of the DIME physician concerning the claimant’s impairment rating is binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(c).
The questions of whether the DIME physician properly applied the AMA Guides and whether the rating has been overcome by clear and convincing evidence are issues of fact for determination by the ALJ. Wackenhut Corp. v. Industrial Claim Appeals Office, supra; McClane Western, Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo.App. 1999). In applying the clear and convincing standard the ALJ must determine whether the party challenging the rating has presented evidence to show that it is highly probable and free from serious or substantial doubt that the DIME physician’s rating was incorrect. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
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. 2001. This standard of review requires us to consider 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. Metro Moving and Storage Co. v. Gussert, supra. It is only if the facts are undisputed and reasonable minds could draw but one inference that an issue becomes a matter of law. See Schreiber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993).
The claimant’s argument notwithstanding, we cannot find the DIME physician’s ratings for right and left lumbar lateral flexion were erroneous as a matter of law. Table 61 certainly contains some evidence from which it could be inferred that the DIME physician should have given a higher rating based on his measurements of lumbar lateral flexion. However, as the ALJ pointed out, it is not even clear the DIME physician based the rating on Table 61 and, if he did, what other factors, such as clinical judgment, may have persuaded him to give a lower rating than the table might otherwise warrant. Cf. Wackenhut v. Industrial Claim Appeals Office, supra. Moreover, the DIME physician’s ratings for right and left lumbar lateral flexion appear to be identical to the ratings given by the treating physician despite the fact their raw measurements were different. Finally, the claimant presented no expert opinion that the DIME physician misapplied the AMA Guides, nor did the claimant depose the DIME physician to determine the precise basis of his opinion. Thus, the record contains substantial evidence to support the ALJ’s finding that the claimant failed to overcome the DIME physician’s rating by clear and convincing evidence.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 31, 2002, 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, 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. 2001. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed July 22, 2002 to the following parties:
Terry Covelli, 11674 Highway 144, Weldona, CO 80653
Sharon Ogley, Excel Corporation, 1505 E. Burlington, C. S. 4100, Ft. Morgan, CO 80701
Margaret Johnson, Crawford Company, 2850 McClelland Dr., #1600, Ft. Collins, CO 80525
Shawn P. Langley, Esq., 1115 11th Ave., Greeley, CO 80631 (For Claimant)
Kathleen Mowry Fairbanks, Esq. and Gregory Daniels, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondent)
By: A. Hurtado