W.C. No. 4-145-522Industrial Claim Appeals Office.
November 30, 1995
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) insofar as it awarded medical impairment benefits. We affirm.
The claimant sustained a compensable injury in 1992. The treating physician, Dr. Murphy, rated the claimant’s permanent medical impairment as 12 percent of the whole person. Because Dr. Murphy did not possess a Level II accreditation at the time of his rating, the claimant underwent a Division sponsored independent medical examination (IME) by Dr. Griffis. In a report dated September 26, 1993, Dr. Griffis rated the claimant’s permanent medical impairment as 33 percent of the whole person.
The claimant was also examined by Dr. Rook who rated the claimant’s impairment as 37 percent of the whole person, and Dr. Bernton, who rated the claimant’s impairment as 11 percent of the whole person based upon 5 percent for a persistent lumbar strain and 6 percent for an unoperated, medically documented injury in the cervical spine. Unlike Dr. Griffis and Dr. Rook, Dr. Bernton did not include a rating for range of motion impairment.
The ALJ determined that 25 percent of Dr. Griffis’ 33 percent impairment rating was based upon a loss of range of motion. Similarly, the ALJ also found that 29 percent of Dr. Rooks’ 37 percent impairment rating was due to range of motion deficiencies.
The ALJ also found that the claimant’s testimony concerning his limited range of motion was not credible. The ALJ’s determination was based, in part, upon a surveillance film which depicted the claimant playing football with his son. The ALJ noted that the film illustrated the claimant’s ability to bend over and engage in a full range of motion in both hips without pain. In view of the surveillance film and the claimant’s inconsistent statements during his testimony and to the examining physicians, the ALJ determined that the range of motion measurements by Dr. Griffis and Dr. Rook were not valid.
Instead, the ALJ determined that the impairment rating of Dr. Bernton was most persuasive. Dr. Bernton reported that his objective examination of the claimant did not disclose an explanation for the claimant’s pain complaints, and that the results of various diagnostic tests were normal. Dr. Bernton also opined that the claimant’s pain complaints were out of portion to the claimant’s behavior and that the claimant demonstrated signs of functional overlay. Further, the ALJ credited Dr. Bernton’s testimony that the claimant’s range of motion impairment did not meet the “validity criteria” set forth in the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides). Therefore, the ALJ determined that the respondents overcame Dr. Griffis’ medical impairment rating by clear and convincing evidence, and awarded benefits based upon Dr. Bernton’s impairment rating.
On appeal, the claimant contends that Dr. Griffis’ rating was not overcome by clear and convincing evidence. We disagree.
The determination of whether a party has overcome the IME impairment rating by clear and convincing evidence is a question of fact for the ALJ Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Consequently, the issue on review is whether the ALJ’s determination is supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); Metro Moving Storage Co. v. Gussert, supra. In applying the substantial evidence test we may not substitute our judgment for that of the ALJ in assessing the credibility of the witnesses and the probative value of the evidence. Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
Notwithstanding the claimant’s arguments to the contrary, the evidence that the ALJ found credible and persuasive supports the contested findings of fact. Further, the ALJ’s findings support a conclusion that the respondents sustained their burden to overcome Dr. Griffis’ impairment rating. See DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318 (1980) Askew v. Industrial Claim Appeals Office, 914 P.2d 416 (Colo.App. 1995). (clear and convincing evidence is evidence which renders a proposition highly probable and free from serious or substantial doubt).
Specifically, Dr. Bernton’s interpretation of Dr. Griffis’ impairment rating supports the ALJ’s finding that 25 percent of Dr. Griffis’ impairment rating was for a loss of range of motion. (Dr. Bernton depo. p. 19) “Figure 81” and “Figure 82” attached to Dr. Griffis’ September 26 report also indicate that Dr. Griffis measured the claimant’s combined cervical and lumbar range of motion deficiency as a 25 percent impairment.
Similarly, Dr. Bernton’s testimony amply supports the ALJ’s finding that the range of motion tests performed by Dr. Rook and Dr. Griffis did not meet the “validity criteria” of the AMA Guides. Dr. Bernton testified that the AMA Guides require measurements to be plus or minus 10 percent or 5 degrees, and that the sum of sacral flexion must be within 10 degrees of the tightest or smallest value for straight leg raising. Further, Dr. Bernton explained why the claimant’s range of motion measurements failed both criteria. (Dr. Bernton depo. pp. 7-8, 16-17, 21-27, 31-32).
Next, the claimant contends that the ALJ erred in crediting Dr. Bernton’s opinions. We disagree.
The ALJ was not persuaded by the testimony that Dr. Bernton’s testing pushed the claimant beyond his physical abilities, and thus, produced false data. To the contrary, the ALJ found that Dr. Bernton was the only examining physician to document the claimant’s range of motion in his legs and lower back beyond 90 degrees, as shown on the surveillance film. Therefore, we cannot say as a matter of law that the ALJ erred in crediting Dr. Bernton’s testimony. Halliburton Services v. Miller, 720 P.2d 571
(Colo. 1986) (credibility determinations binding unless the testimony is rebutted by such hard, certain evidence that it would be error as a matter of law to believe the testimony).
The claimant further contends that Dr. Bernton’s comparison of his range of motion measurements with those of Dr. Rook and Dr. Griffis constitutes an improper application of the AMA Guides. In support, the claimant relies upon our conclusions in Buckingham v. Motor Parts and Supply Company, W.C. No. 4-174-877, January 18, 1995.
The proper application of the AMA Guides is a question of fact. Metro Moving Storage Co. v. Gussert, supra. Here, the ALJ credited Dr. Bernton’s testimony that it is proper to compare and consider differences in the range of motion measurements obtained by other physicians in determining whether the measurements satisfy the “validity criteria” in the AMA Guides. (Dr. Bernton depo. pp. 24, 53). Because the AMA Guides were not part of the record before the ALJ, we must presume that Dr. Bernton’s testimony is a plausible interpretation of the AMA Guides See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995) (AMA Guides not submitted to ALJ will not be considered on appeal).
Buckingham v. Motor Parts and Supply Company, supra, also involved conflicting medical evidence concerning whether the injured worker’s range of motion measurements were valid. Contrary to the claimant’s contention, we did not state in Buckingham that the AMA Guides preclude the examining physician from comparing the range of motion measurements obtained by other physicians. Rather, we concluded that the ALJ was free to resolve the conflicting medical evidence concerning the proper interpretation of the AMA Guides based upon his credibility determinations. The claimant’s remaining arguments challenging Dr. Bernton’s opinions have been considered and are unpersuasive.
Lastly, the claimant contends that the ALJ erred in finding that Dr. Bernton’s rating was consistent with Dr. Murphy’s impairment rating. The ALJ’s order is based upon Dr. Bernton’s impairment rating. Therefore, assuming that Dr. Murphy’s impairment rating has no evidentiary value, the ALJ’s error if any, in referencing Dr. Murphy’s rating was harmless. Section 8-43-310 C.R.S. (1995 Cum. Supp.); A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988) (error which is not prejudicial will be disregarded).
IT IS THEREFORE ORDERED that the ALJ’s order dated January 23, 1995, 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 iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed November 30, 1995 to the following parties:
Carlos D. Diaz, 5470 Alteza, Colorado Springs, CO 80917
DTM Antlers, Inc., Four South Cascade Ave., Colorado Springs, CO 80901-1685
Sandra H. Crenshaw, Aetna Casualty Surety Company, P.O. Box 173712, Denver, CO 80217
Jordan S. Levine, Esq., 1290 Broadway, Ste. 708, Denver, CO 80203
(For the Respondents)
Dale A. Gerlach, Esq., 228 N. Cascade Ave., Ste. 200, P.O. Box 636, Colorado Springs, CO 80901
(For the Claimant)
BY: _______________________