W.C. No. 4-160-133Industrial Claim Appeals Office.
July 20, 1999.
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Stuber (ALJ) which awarded permanent partial disability benefits based on a 39 percent whole person medical impairment rating issued as a result of a Division-sponsored Independent Medical Examination (IME). The claimant argues the IME physician’s rating was not in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides), and that he overcame the rating as a matter of law. The claimant also contends the ALJ erroneously permitted the respondents to withdraw a final admission of liability. We affirm.
The claimant sustained compensable injuries to her cervical and lumbar spine in January 1993. In July 1995 she underwent a C3-5 laminectomy and foraminotomy. In July 1997 she underwent an L4-S1 fusion.
On August 18, 1997, one of the claimant’s treating physicians, Dr. Kurica, issued an impairment rating for the claimant’s lumbar spine. Dr. Kurica assessed 13 percent impairment under Table 53, § IV B and C of the AMA Guides, and 21 percent impairment for lost range of motion. The lost range of motion rating included seven percent for a reduced lumbar extension. Using the Combined Values Chart of the AMA Guides, Dr. Kurica assessed a total impairment of 31 percent of the whole body.
Based upon Dr. Kurica’s impairment rating, the respondents filed a final admission of liability dated September 15, 1997. However, the claimant filed a timely objection on grounds that Dr. Kurica’s rating did not include an impairment rating for the claimant’s cervical spine. (Tr. p. 23).
In November 1997 Dr. Rook, another treating physician, rated the claimant’s cervical impairment. Dr. Rook found an 11 percent impairment due to specific disorders of the spine resulting from the three level cervical laminectomy. Dr. Rook also found 15 percent impairment for lost range of motion, which included 4 percent impairment for reduced cervical extension. Thus, Dr. Rook’s overall cervical rating was 24 percent of the whole person. Dr. Rook combined this rating with Dr. Kurica’s rating for an total impairment of 48 percent of the whole person.
The respondents then requested a Division IME on the issue of medical impairment. The Division IME was performed by Dr. Finn on March 9, 1998, and March 24, 1998. On March 9 Dr. Finn assessed the claimant’s cervical impairment as 25 percent of the whole person. This included 12 percent for specific disorders of the cervical spine in accordance with Table 53, § II E and D of the AMA Guides. Dr. Finn also found 15 percent impairment for reduced range of motion. However, he did not include any rating for the claimant’s cervical extension because he did not believe the claimant was giving “full effort,” and because the measurements “do not correlate with Dr. Rook’s range of motion testing.” Dr. Finn rated the claimant’s lumbar impairment as 19 percent of the whole person. The lumbar rating included 11 percent impairment for specific disorders of the spine under Table 53, § II D and E, and 9 percent impairment for reduced range of motion. Dr. Finn did not include any rating for reduced lumbar flexion because the claimant did not meet the validity criteria for the straight leg raising test. Dr. Finn repeated the cervical extension and lumbar flexion measurements on March 24, but again rejected them for inclusion in the rating. Dr. Finn’s overall rating was 39 percent of the whole person. The respondent filed a Final Admission of Liability for permanent partial disability benefits consistent with Dr. Finn’s rating. The claimant timely objected and sought a hearing to overcome Dr. Finn’s IME rating on grounds that it was not in accordance of the AMA Guides.
The ALJ concluded the claimant failed to overcome the IME rating by clear and convincing evidence. Specifically, the ALJ determined that Dr. Finn had discretion to exclude a rating for cervical extension which was not based on the claimant’s true ability. Further, the ALJ found there was no evidence that Dr. Finn improperly performed the straight leg raising tests, and the ALJ was unpersuaded by measurements procured by Dr. Kurica. Finally, the ALJ was unpersuaded that Dr. Finn acted improperly by rating the claimant’s lumbar disorder under Table 53, § II rather than § IV. The ALJ noted that use of Table 53 depends on the rating physician’s diagnosis, and concluded the claimant failed to overcome Dr. Finn’s diagnosis.
I.
On review, the claimant contends he overcame Dr. Finn’s IME rating as a matter of law. The claimant argues the evidence, principally the testimony of Dr. Rook, establishes that Dr. Finn misapplied Table 53 of the AMA Guides, improperly invalidated the claimant’s cervical extension measurements, and improperly used straight leg testing when invalidating lumbar flexion measurements. We disagree with these arguments.
The Division IME must apply the AMA Guides when evaluating the claimant’s permanent medical impairment. Section 8-42-107(8)(c), C.R.S. 1998. The IME physician’s rating then becomes binding on the parties unless overcome by clear and convincing evidence. Section 8-42-107(8)(c). Under this statutory scheme the party seeking to overcome the Division IME physician’s rating has the burden of proof. Lambert Sons, Inc. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA1774, July 9, 1998).
The questions of whether the IME physician properly applied the AMA Guides, and whether the rating has been overcome by clear and convincing evidence, are questions of fact for determination by the ALJ. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995). Moreover, an IME physician’s deviation from the rating protocols of the AMA Guides does not require the ALJ to conclude that the overall rating has been overcome by clear and convincing evidence. Rather, deviations from the AMA Guides constitute some evidence from which the ALJ may conclude the rating was improper. Rivale v. Beta Metals, Inc., W.C. No. 4-265-360 (April 16, 1998), aff’d. Rivale v. Industrial Claim Appeals Office, (Colo.App. No. 98CA0858, January 28, 1999) (not selected for publication); 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).
Because the question of whether the IME physician’s rating was overcome is one of fact, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. In applying this standard we must view the evidence in a light most favorable to the prevailing party. Further, we must defer to the ALJ’s decisions concerning the weight of the evidence, the credibility of the witnesses (including medical experts), and the plausible inferences to be drawn from the record. Metro Moving and Storage Co. v. Gussert, supra. The ALJ was not required to address evidence which he did not find determinative of the issues involved, and evidence not mentioned in the order is considered to have been implicitly discredited. Cooper v. Industrial Claim Appeals Office, ___ P.2d ___, (Colo.App. No. 98CA1343, March 18, 1999).
The claimant makes two arguments concerning Dr. Finn’s use of Table 53 in calculating the claimant’s impairment rating. First, the claimant argues that she underwent a three level cervical laminectomy, and therefore, under Table 53, § II the proper rating for her specific spinal disorder was 11 percent, not the 12 percent assessed by Dr. Finn. The claimant acknowledges that the alleged error inured to her benefit, but reveals that Dr. Finn lacked a “grasp” of the AMA Guides.
However, even if we were to agree that Dr. Finn erred in calculating the claimant’s specific disorder of the cervical spine, we would not be required to set aside the ALJ’s order. The mere fact that Dr. Finn may have underrated the claimant’s cervical impairment does not require the inference that his ratings for lost range of motion and lumbar impairment were incorrect, or that the overall rating was incorrect. To the contrary, such an error constitutes some evidence which the ALJ could consider in evaluating the validity of the overall rating. In fact, because the alleged error benefited the claimant, it makes it less likely that Dr. Finn was manipulating the rating so as to benefit the respondents.
Moreover, the ALJ was not obliged to conclude that Dr. Finn was required to utilize Table 53, § IV rather than Table 53, § II in rating the claimant’s specific disorder of the lumbar spine. Although Dr. Rook opined that the claimant’s lumbar fusion surgery required use of § IV, he admitted on cross-examination that the claimant’s MRI showed a disc herniation and narrowing of an interverebral disc. (Tr. p. 37-38). Thus, the ALJ was presented with a conflict of expert medical opinion concerning the proper application of the AMA Guides to the claimant’s particular condition, and the ALJ was not required to credit Dr. Rook’s opinion over that of Dr. Finn. We may not substitute our judgment for that the ALJ in this regard.
The claimant next argues that Dr. Finn had no basis to invalidate the claimant’s cervical extension measurements on grounds that he believed the claimant was not giving full effort, and because his measurements did not correlate with Dr. Rook’s measurements. The claimant generally asserts that the AMA Guides contain no provision “for the invalidation of valid test results because the examiner thinks the Claimant should be able to do better.” (Claimant’s Brief at p. 5).
We note that the AMA Guides, § 1.2 at p. 3, provide that “the first key to effective and reliable evaluation of impairment is a review of office and hospital records maintained by the physicians who have provided care since the onset of the medical condition.” The same provision goes on to state that if the examiner’s impairment evaluation is not consistent with the findings in the medical records, “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. Rook acknowledged that Dr. Finn acted appropriately in repeating the claimant’s cervical and lumbar range of motion tests. (Tr. p. 35). Thus, it could be inferred that Dr. Finn acted properly by invalidating the claimant’s range of motion measurements which were at odds with the medical records and Dr. Finn’s own clinical observations. While the record is subject to conflicting inferences, we may not interfere with the ALJ’s resolution of conflicts of the evidence.
Finally, the claimant asserts the evidence establishes that Dr. Finn improperly performed straight leg raising tests so as to invalidate the claimant’s lumbar flexion measurements. The claimant also asserts that the record proves Dr. Finn “misapprehended” his role as an IME physician because the claimant overheard Dr. Finn state that his purpose was to “lower” the claimant’s rating.
The ALJ found “no evidence” that Dr. Finn improperly performed the straight leg testing. This finding is supported by Dr. Rook’s admission on cross-examination that he did not observe Dr. Finn performing the disputed tests and his opinion concerning Finn’s technique amounted to “speculation.” (Tr. p. 36).
In addition, the ALJ implicitly rejected the claimant’s testimony suggesting that Dr. Finn was biased. The claimant admitted that it was possible Dr. Finn was talking about another patient when he discussed “lowering” the rating, and that Dr. Finn was not even in the same room as the claimant when she overheard the conversation.
II.
The claimant next contends the respondents were not entitled to withdraw their September 1997 final admission of liability insofar as it admitted for permanent partial disability benefits based on Dr. Kurica’s 31 percent lumbar impairment rating. In support of this proposition, the claimant cites our decision i Weber v. Mesa County Sheriff’s Department, W.C. No. 3-113-179
(May 28, 1998), aff’d. Mesa County Sheriff’s Department v. Industrial Claim Appeals Office, (Colo.App. No. 98CA1119, February 25, 1999) (not selected for publication).
In Weber, the respondents filed a final admission of liability for permanent partial disability benefits. The claimant did not object to the admission, but the respondents filed their own objection alleging that new evidence showed the claimant’s impairment rating was lower than that on which the admission was based. Relying on § 8-43-203(2)(b), C.R.S. 1998, we held the plain language of the statute prohibits respondents from objecting to their own final admissions, and that the right to object is reserved to claimants. We also noted that if the claimant does not object to a final admission in a timely fashion the “issues” admitted are closed and may be reopened only in accordance with §8-43-303, C.R.S. 1998.
However, we have also held that if the claimant files a timely objection to a final admission of liability the admitted “issues” remain open and the respondents may seek a prospective withdrawal of the final admission under HLJ Management Group v. Kim, 804 P.2d 250 (Colo.App. 1990). Morales v. United Airlines,
W.C. No. 4-146-432 (June 20, 1994); Bauer v. Boulder County, W.C. No. 4-020-145 (March 22, 1993). Thus, our decision in Weber is not dispositive, and we find no reason to depart from our prior decisions holding that once the claimant objects to a final admission the respondents may seek prospective relief if the final admission was “improvident.” As the respondents point out, this conclusion is consistent with Rule of Procedure IV (N) (7), 7 Code Colo. Reg. 1101-3 at 7, which provides that, “The insurance carrier may modify an existing admission regarding medical impairment, whenever the medical impairment rating is changed pursuant to a binding IME, a division IME, or an order.” The rule goes on to provide that modifications of admissions of liability “shall not affect an earlier award or admission as to monies previously paid.”
It follows the ALJ correctly held the respondents were not prospectively bound by their September 1997 admission of liability based on Dr. Kurica’s impairment rating. To the contrary, the respondents were entitled to dispute Dr. Kurica’s rating pursuant to the IME process, so long as they continued to pay benefits in accordance with their admission until the issue was determined at hearing.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 16, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the 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, 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed July 20, 1999 to the following parties:
Jo Beth Fausnacht, 628 Dove Pl., Colorado Springs, CO 80906
Inflated Dough, Inc., 1737 B. St., Colorado Springs, CO 80906-5365
David L. Smith, 600 17th St., Ste. 1600 N. Denver, CO 80202
William A. Alexander, Jr., 3608 Galley R., Colorado Springs, CO 80909 (For Claimant)
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority — Interagency Mail (For Respondents)
By: A. Pendroy