W.C. No. 4-342-143Industrial Claim Appeals Office.
October 19, 1999
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which determined the respondent overcame Dr. Carlton’s medical impairment rating and awarded permanent partial disability benefits based on the rating of Dr. Polanco. We affirm.
On May 28, 1997, the claimant suffered a compensable back injury, and was diagnosed with a lumbosacral strain. Dr. Bergland placed the claimant at maximum medical improvement with 27 percent permanent medical impairment due to 17 percent impaired range of motion to the lumbar spine, and specific disorders of the lumbar spine under Tables 53 II (b) and 53 III (a) of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides).
Table 53 II (b) allows the physician to rate a tissue lesion:
“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.”
Table 53 III (a) is applicable to rate spondylolysis “accompanied by medically documented injury and a minimum of six months of medically documented pain and rigidity with or without muscle spasm.”
Dissatisfied with Dr. Bergland’s rating, the respondents requested a Division-sponsored independent medical examination (IME) pursuant to the statutory provisions currently codified at §8-42-107(8)(c), C.R.S. 1999. Dr. Carlton, the IME physician, rated the claimant’s overall impairment as 28 percent of the whole person due to impaired range of motion to the lumbar spine and specific disorders of the lumbar spine under Tables 53 II (b) and 53 III (a) of the AMA Guides.
Thereafter, the claimant was examined by Dr. Polanco who issued a 10 percent whole person impairment rating based on 5 percent impaired range of motion and 5 percent impairment due to a specific disorder of the lumbar spine under Table 53 II (b) of the AMA Guides. Dr. Polanco also opined that Dr. Bergland and Dr. Carlton misapplied the AMA Guides in rating the claimant’s permanent impairment. Dr. Polanco testified that Dr. Carlton erred in failing to repeat range of motion measurements or invalidate the claimant’s range of motion measurements because the claimant’s tightest straight leg raise exceeded the sum of the claimant’s sacral flexion and extension by more than 10 degrees. Further, Dr. Polanco opined that under § 3.3 of the AMA Guides (copy in the record) impairment of the spine is to be based on the “primary diagnosis” and in utilizing Tables 53 only one rating category is to applied. Therefore, Dr. Polanco opined that Dr. Carlton and Dr. Bergland erroneously rated the claimant’s impairment under Table 53 II (b) and Table 53 III (a) of the AMA Guides. Dr. Polanco stated that Dr. Carlton’s Table 53 III (a) rating is also incorrect because the evidence is insufficient to support a diagnosis of spondylolysis.
Crediting Dr. Polanco’s testimony, the ALJ found the respondent overcame Dr. Carlton’s rating by “clear and convincing evidence” as required by § 8-42-107(8)(c). The ALJ then awarded permanent partial disability benefits in accordance with Dr. Polanco’s rating.
On review the claimant contests the ALJ’s decision to credit the testimony of Dr. Polanco. The claimant contends there is substantial evidence that he has spondylolysis, and that Dr. Polanco’s opinions reflect a difference of opinion concerning the proper application of the AMA Guides but not “clear and convincing” evidence that Dr. Carlton incorrectly rated the claimant’s impairment. The claimant also contends that Dr. Carlton’s deviation from the AMA Guides does not compel the conclusion that Dr. Carlton’s rating is incorrect. We reject these arguments.
“Clear and convincing evidence” is evidence which establishes that it is “highly probable” the IME physician’s rating is incorrect. See Postelwait v. Midwest Barricade, 905 P.2d 21
(Colo.App. 1995). The question of whether the IME physician’s rating has been overcome by “clear and convincing” evidence is one of fact for determination by the ALJ. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). In resolving this issue, the ALJ must consider the factual question of whether the IME physician properly applied the AMA Guides and other rating protocols. See Metro Moving Storage Co. v. Gussert, supra. Proof of an IME physician’s deviation from the rating protocols of the AMA Guides does not require the ALJ to find that the physician’s rating has been overcome by clear and convincing evidence. Rivale v. Beta Metals, Inc., W.C. No. 4-265-360 (April 16, 1998); Sutton v. Alpen Construction, W.C. No. 4-225-415 (April 1, 1997), aff’d, Sutton v. Industrial Claim Appeals Office
(Colo.App. No. 97CA0711, November 13, 1997) (not selected for publication). Rather, proof of deviation must be considered in the context of all the evidence when the ALJ makes the ultimate determination of whether the IME’s rating has been overcome by clear and convincing evidence. E.g. Juarez v. Arapahoe Associates, Ltd., W.C. No. 4-122-705 (May 10, 1996); Aguirre v. American Linen, W.C. No. 4-132-021 (March 14, 1994).
Because the issue is factual in nature, we must hold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999. This standard requires us to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). We also note that once the IME procedure is used to determine medical impairment an ALJ is not required to give special weight to the opinions of any physician other than the Division IME physician. Postelwait v. Midwest Barricade, supra. Further, where medical evidence subject to conflicting inferences it is the ALJ’s sole prerogative to resolve the conflict. Metro Moving Storage Co. v. Gussert, supra.
The claimant’s arguments notwithstanding, there is substantial evidence in Dr. Polanco’s testimony to support the ALJ’s implicit determination that Dr. Carlton’s deviation from the AMA Guides was so significant that it is highly probable his medical impairment rating is incorrect. Furthermore, Dr. Polanco’s testimony is supported by the record, and therefore, we cannot say the ALJ erred in crediting Dr. Polanco’s testimony See Johnson v. Industrial Claim Appeals Office, 973 P.2d 624
(Colo.App. 1997) (ALJ’s credibility determinations are binding unless the testimony he credited is so rebutted by concrete, certain evidence that as a matter of law the ALJ erred in crediting the testimony).
Moreover, the only evidence cited by the claimant to support a diagnosis of spondylolysis is the MRI by Dr. Sherman dated July 19, 1997. However, the MRI refers to a “possible incomplete spondylolysis.” Dr. Polanco reported that he “obtained clarification” from Dr. Sherman and, as a result, opined that Dr. Carlton erroneously relied on the MRI as a “conclusive” diagnosis of spondylolysis. (Dr. Polanco, December 16, 1997). Dr. Polanco also testified that the “possibility” of spondylolysis is insufficient to warrant a rating under Table 53 III (a).
In addition, there is no finding or assertion that the claimant injured his cervical or thoracic spine. (See Tr. p. 35). Therefore, evidence in the Level II accreditation materials which indicates that Table 53 II (b) and Table 53 III (a) are not mutually exclusive where the claimant sustains an injury to more than one part of the spine does not contradict Dr. Polanco’s testimony that Dr. Carlton’s application of Table 53 III (a) was erroneous. Further, the Level II accreditation materials on spinal impairment state that “only the primary diagnosis can be considered for rating.” (Copy in record).
The claimant essentially requests that we reweigh the evidence and substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of Dr. Polanco’s opinions. However, we have no authority to do so. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Consequently, the claimant has failed to establish grounds which afford us a basis to interfere with the ALJ’s award of permanent partial disability benefits.
The claimant also contends the ALJ erred in failing expressly to reserve all other issues for future determination. The claimant argues that because permanent partial disability was the only issued endorsed for hearing, the issues of future medical benefits and permanent total disability benefits should have been reserved for future determination. We perceive no error.
The claimant cites no authority and we know of none which supports his assertion that ALJs are required to expressly reserve all issues not endorsed for adjudication. Rather, a party who seeks to reserve issues for future determination, should request that a reservation clause be included in the order.
Here, the claimant does not assert that he requested the ALJ to reserve any issues for future determination, and the record does not reveal any request. (See Tr. pp. 3, 39); compare Harrison v. Learning Ladder, W.C. No. 4-157-564 (April 6, 1996). Consequently, we cannot say the ALJ erred in failing to include a reservation clause in the order.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 9, 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 October 29, 1999 to the following parties:
William D. DiSalvo, 1810 Hollywood Dr., Pueblo, CO 81005
CF I Steel L.P., P.O. Box 5368, Portland, OR 97228-5368
Oregon Steel Mills Inc., Sedgwick Claims Management Services Inc., 2000 S. Colorado Blvd., Denver, CO 80222
Joseph W. Ruppert, Esq., 226 West B St., P.O. Box 8087, Pueblo, CO 81008 (For Claimant)
Michael Goodman, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701 (For Respondents)
BY: A. Pendroy