W.C. No. 4-300-659Industrial Claim Appeals Office.
October 9, 1998
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Martinez (ALJ), insofar as the ALJ found that the respondents overcame the Division-sponsored independent medical examination (IME) impairment rating and ordered apportionment of the claimant’s permanent partial disability benefits. The respondents seek review of the ALJ’s order to the extent the ALJ calculated permanent partial disability benefits based on the maximum rate payable for temporary total disability benefits. We affirm.
The ALJ found that the claimant, a minor, sustained a compensable back injury on April 27, 1996. As a result of the injury, the claimant was required to undergo back surgery including fusion of the L3-L4 vertebrae.
On June 18, 1997, the claimant was examined by one of the treating physicians, Dr. Woelfel, and assigned a ten percent whole person impairment rating under the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition
(Revised) (AMA Guides). Applying Table 53 of the AMA Guides, Dr. Woelfel opined that the claimant had an eight percent impairment for a surgically treated disc. Additionally, Dr. Woelfel assessed a two percent impairment for lost range of motion. Dr. Woelfel did not apportion the claimant’s impairment.
Subsequently, a Division-sponsored IME was performed by Dr. Hall. In a report dated December 30, 1997, Dr. Hall opined the claimant had a twenty-four percent whole person impairment. This rating was based on a ten percent impairment under Table 53 II E, for a surgically treated disc lesion, and a fifteen percent impairment for lost range of motion. Dr. Hall did not apportion the impairment rating.
At the hearing, the respondents presented evidence that the claimant sustained a prior back injury while playing football in September 1995. An MRI performed in October 1995 revealed degenerative disc disease and a “prominent central disc bulge” at L4-5, with a “lesser degree of central bulge . . . at L3-4.” As late as January 18, 1996, the claimant was receiving chiropractic treatment for pain associated with the football injury.
The respondents also presented testimony from the claimant’s former girlfriend that, prior to the April 27, 1996 industrial injury, the claimant experienced frequent low back problems. Further, two of the claimant’s former co-employees testified that even after the April 27 injury, the claimant was uncertain whether his ongoing back problems were associated with the football injury or the industrial injury.
The ALJ concluded that the respondents overcame Dr. Hall’s IME rating by clear and convincing evidence. In support, the ALJ found that Dr. Hall failed to comply with the AMA Guides, as well as Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996), in failing to apportion the impairment rating based on the claimant’s preexisting football injury. Specifically, the ALJ noted Dr. Hall’s deposition testimony that he would not apportion unless an impairment rating had been assigned for the preexisting injury. (Dr. Hall depo. pp. 6, 8). The ALJ also found that Dr. Hall violated the AMA Guides by failing to contact Dr. Woelfel in an attempt to resolve the disparity between their ratings. Finally, the ALJ relied on the report of Dr. Macaulay, which stated that the medical records submitted for the period prior to the April 27 industrial injury demonstrate that the claimant had at least a seven percent preexisting impairment.
In view of his finding that Dr. Hall’s rating was overcome, the ALJ concluded that Dr. Woelfel’s impairment rating was the most reliable indication of the claimant’s impairment. However, based on his finding that apportionment was proper under the AMA Guides and Askew, the ALJ deducted seven percent from Dr. Woelfel’s ten percent rating. Therefore, the ALJ awarded permanent partial disability benefits based on a three percent whole person impairment.
The ALJ also ordered that the permanent disability benefits be calculated by using the maximum temporary disability rate of $451.22 per week. See § 8-42-107 (8)(d), C.R.S. 1998. Because the claimant was a minor, the ALJ relied on § 8-42-102(4), C.R.S. 1998, as authority for using the maximum rate.
I.
On review, the claimant raises numerous objections to the ALJ’s finding that Dr. Hall’s rating was overcome by clear and convincing evidence. Generally, the claimant argues that the ALJ erred in finding that Dr. Hall failed to comply with AMA Guides when determining the claimant’s impairment rating. The claimant also contends that the evidence does not support the ALJ’s apportionment based on the medical impairment stemming from the claimant’s football injury. The claimant also disputes the ALJ’s reliance on Dr. Woelfel’s impairment rating. We perceive no error.
Section 8-42-107(8)(c), C.R.S. 1998, provides that the finding of an IME physician concerning the claimant’s impairment rating “shall be overcome only by clear and convincing evidence.” The statute also requires that the impairment rating be determined in accordance with the AMA Guides. See also, § 8-42-101(3.7), C.R.S. 1998.
The issues of whether the IME physician has properly applied the AMA Guides, and whether his rating has been overcome by clear and convincing evidence, are questions of fact for determination by the ALJ. Metro Moving 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 of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. See § 8-43-301(8), C.R.S. 1998. These fundamental principles of appellate review are “not altered by the fact that the evidentiary standard of proof under § 8-42-107(8)(c) has been changed to `clear and convincing evidence.'” Metro Moving Storage Co. v. Gussert, 914 P.2d at 415.
Where, as here, rating of the claimant’s impairment involves an issue of apportionment under § 8-42-104(2), C.R.S. 1998, the ALJ must consider special legal requirements. In Askew v. Industrial Claim Appeals Office, supra, the Supreme Court addressed the circumstances in which a preexisting medical impairment may be apportioned. The court held that the preexisting impairment must have constituted a “disability” as assessed by nonmedical means. Further, the court concluded that apportionment is proper only where the prior impairment “has been sufficiently identified, treated, or evaluated to be rated as a contributing factor in the subsequent disability.” Applying these principles, the Askew court held that asymptomatic preexisting conditions are not subject to apportionment. See also, Lambert Sons, Inc. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA1774, July 9, 1998).
The claimant’s argument notwithstanding, the record supports the ALJ’s determination that Dr. Hall violated principles of the AMA Guides in failing to apportion the claimant’s impairment rating. Dr. Hall testified that he declined to apportion his impairment rating based on his understanding that apportionment is improper unless the prior impairment has been assigned an “impairment rating.” However, as noted in Askew, the AMA Guides state that “if there was no valid pervious evaluation, information about the condition still could be used to estimate a rating according to Guides criteria.” 927 P.2d at 1338; See also, Rule of Procedure XIX (C), 7 Code Colo. Reg. 1101-3 at 123 (requiring Level II accredited physicians to apportion “where medical records or other objective evidence” substantiate preexisting impairment).
Here, the record contains medical documentation of the claimant’s football injury including MRI results and chiropractic records. Dr. Macaulay’s report indicates that this medical documentation is sufficient to support apportionment under the AMA Guides. Consequently, there is substantial evidence to support the ALJ’s finding that Dr. Hall violated the AMA Guides by failing to apportion the claimant’s overall rating between the football injury and the industrial injury. While there was conflicting evidence, we may not substitute our judgment for that of the ALJ concerning the weight of the evidence. Metro Moving Storage Co. v. Gussert, supra.
Similarly, the record supports the ALJ’s finding that Dr. Hall violated the AMA Guides by failing to contact Dr. Woelfel in an attempt to reconcile the disparity between their respective impairment ratings. A portion of the AMA Guides admitted during Dr. Hall’s deposition states as follows:
“If the findings of the impairment evaluation are not consistent with those in the record, the step of determining the percentage of impairment is meaningless and should not be carried out until communication between the involved physicians or further clinical investigation resolves the disparity.”
Here, Dr. Hall conceded that he did not attempt to contact Dr. Woelfel in order to reconcile the disparate impairment ratings. However, the claimant asserts that Dr. Hall’s failure to contact Dr. Woelfel should not be considered because it is “well known that according to the rules set forth by the Division of Workers’ Compensation the Division independent medical evaluation doctor is not to communicate with other parties, or for that matter, it is implied that he is not to communicate with other doctors.” (Claimant’s Brief at p. 8). In our opinion, the claimant’s argument is an incorrect statement of the law.
Rule of Procedure XIV (L)(k), 7 Code Colo. Reg. 1101-3 at 54-55, provides that Division IME physicians must comply with the following requirement:
“in order to assure fair and unbiased Division IME’s, not engage in communication regarding the IME with any person other than Division staff, except under the following circumstances:
The claimant, during the IME examination, the requesting party when setting the appointment, by approval of the director, both party written agreement [sic], an order by an administrative law judge, by deposition or subpoena as approved by an administrative law judge;”
Similarly, Rule of Procedure XIV (L)(6)(a), 7 Code Colo. Reg. 1101-3 at 59, prohibits parties from having communication with the IME physician without approval of the director or an ALJ.
Thus, the Rules of Procedure do not prohibit an IME physician from contacting another physician in an attempt to reconcile differences in impairment ratings. Rather, the rules require the IME physician to contact the “Division staff” and obtain the Director’s approval before having any conversations with other physicians. Presumably, this procedural safeguard ensures that communications between the IME physician and other rating physicians will occur in a manner which facilitates fairness and a frank exchange of information.
Thus, the rules are not inconsistent with the AMA Guides requirement that the IME physician contact other physicians in cases of disparate impairment ratings. Consequently, the ALJ did not err in finding that Dr. Hall violated the AMA Guides by failing to make any effort to contact Dr. Woelfel through proper channels.
The claimant also points out that the AMA Guides provide that “further clinical investigation” is an alternative to contact with other rating physicians. While this may be true, the claimant does not cite any evidence that Dr. Hall engaged in further “clinical investigation” after ascertaining that his rating was significantly different than that of Dr. Woelfel.
It follows that we find no error in the ALJ’s reliance on Dr. Woelfel’s impairment rating as the baseline measurement of the overall impairment. Here, the record supports the ALJ’s determination that Dr. Hall’s IME rating was not in accordance with the AMA Guides. Having determined that it is highly probable that Dr. Hall’s rating is incorrect, the ALJ was free to evaluate all the evidence to determine the best indicator of the claimant’s impairment rating. The ALJ’s decision to utilize Dr. Woelfel’s rating was a plausible interpretation of the evidence, and we may not reweigh the expert medical testimony. Metro Moving Storage Co. v. Gussert, supra.
The claimant next argues that the ALJ’s findings of fact concerning apportionment are not supported by the evidence. The claimant asserts that the ALJ’s finding that the claimant was symptomatic from the football injury prior to the industrial injury is contrary to the respondents’ admission of liability that an injury occurred on April 27. However, there is no inherent conflict in finding that the claimant was symptomatic from the football injury at the time he sustained the industrial injury on April 27, 1996. The ALJ found, in effect, that the April 27 injury was an aggravation of the claimant’s prior back condition.
Neither did the ALJ err in considering the claimant’s testimony about the symptoms he experienced before and after the April 27, 1996 injury. Contrary to the claimant’s argument, the ALJ did not find the claimant had specific “medical knowledge” about the source of his pain. The respondents attempted to establish that the claimant was symptomatic prior to April 27 in an effort to support their argument that the claimant had a preexisting medical impairment under Table 53 of the AMA Guides. Table 53 II C mentions “medically documented injury and a minimum of six months of medically documented pain and rigidity with or without muscle spasm.” The claimant’s testimony that he had pain prior to April 27 was relevant to establish the respondents’ argument for apportionment, and the ALJ correctly considered it for that purpose.
The claimant’s remaining arguments are factual in nature, and we find them to be without merit.
II.
Following the filing of his Petition to Review the ALJ’s order, the claimant filed a “Request for Reevaluation by IME Physician Robert F. Hall, MD.” This motion argued that “insufficient facts were presented at the hearing” for the ALJ to apportion based on the impairment ratings of Dr. Hall and Dr. Woelfel. Thus, the claimant requested an opportunity to “facilitate fact finding” by having Dr. Hall “perform an apportionment consistent with the order issued by the ALJ for apportionment (7%).” However, the ALJ denied this motion on June 4, 1998.
On review, the claimant requests that we overrule the ALJ’s order and return the matter with instructions to submit the issue of apportionment to Dr. Hall for further evaluation. We decline to do so.
Pursuant to § 8-43-301(5), C.R.S. 1998, the ALJ has authority to set the matter for further hearing to receive evidence after the apparent conclusion of the hearing process. However, this authority is discretionary, and we will not interfere with ALJ’s refusal to take additional evidence unless an abuse of discretion is shown. See IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). In evaluating whether to take additional evidence, the ALJ may consider such factors as whether the evidence would be “outcome determinative,” and the inconvenience and expense to the opposing party if further hearing is granted. IPMC Transportation Co. v. Industrial Claim Appeals Office, supra, Raffaelo v. Industrial Commission, 670 P.2d 805
(Colo.App. 1983).
Here, we perceive no abuse of discretion in the ALJ’s refusal to grant a delay in the proceedings to accept additional evidence. The claimant has not shown that allowing Dr. Hall to apportion the claimant’s impairment rating would be “outcome determinative.” In fact, it seems unlikely that Dr. Hall’s opinion on apportionment would be outcome determinative in view of the ALJ’s finding that Dr. Hall’s impairment rating was overcome by clear and convincing evidence. Further, at the time of the hearing, the claimant argued against submitting the matter to Dr. Hall for an additional opinion. (Tr. p. 7). Finally, the delay caused by a further hearing weighs against finding an abuse of discretion.
III.
Respondents argue that the ALJ erred in relying on §8-42-102(4) when calculating the claimant’s permanent partial disability benefits based on the maximum rate for temporary total disability benefits. However, the Court of Appeals decision i Arkansas Valley Seeds, Inc. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. 97CA1504, July 23, 1998), is dispositive of the respondents’ arguments. Thus, the ALJ did not err.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 23, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Bill Whitacre
NOTICE This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed October 09, 1998 to the following parties:
Edward Estes, P.O. Box 1085, Aztec, NM 87410
Steve Langdon, Roy Moss, Sutherland’s Lumber, 2405 “F” Road, Grand Junction, CO 81505
Debbie Kaufman, Lumbermen’s Underwriting Alliance, 15055 W. Sequoia Pkwy., #120, Portland, OR 97224-7197
Gregory K. Chambers, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For the Respondents)
Keith Killian, 225 N. 5th St., #1010, P.O. Box 4848, Grand Junction, CO 81502 (For the Claimant)
BY: _______________________