W.C. No. 4-303-252Industrial Claim Appeals Office.
January 7, 2002
FINAL ORDER
The respondents seek review of an order of former Administrative Law Judge Corchado (ALJ) which required them to pay permanent partial disability benefits based on 13 percent whole person impairment. We affirm.
In 1996, the claimant suffered a work-related injury to her right thigh when she was severely bitten by a dog. The claimant subsequently complained of low back pain.
The claimant underwent a Division-sponsored independent medical examination (DIME) by Dr. Tolge. At the time of the DIME, the claimant presented lower lumbar pain bilaterally, but greater on the right. In a report dated January 25, 2000, Dr. Tolge opined the claimant suffered 23 percent impairment to the lower extremity due to range of motion deficits in the right hip, and 5 percent for peripheral nervous system impairment. Further, Dr. Tolge assigned 2 percent whole person impairment for limited range of motion in the lumbar spine. Dr. Tolge converted the lower extremity rating to whole person impairment and, therefore, assigned a combined rating of 13 percent whole person impairment.
The respondents subsequently took Dr. Tolge’s deposition. During the deposition, Dr. Tolge was equivocal about the cause of the claimant’s impaired range of motion. However, the claimant was also examined by Dr. Ryan, who opined that the claimant’s low back pain was secondary to the claimant’s persistent antalgic gait. (Tr. p. 76). Dr. Ryan stated it was appropriate for Dr. Tolge to include a rating for impaired range of motion to the claimant’s lumbar spine. (Tr. p. 37).
At the hearing before the ALJ, the respondents’ attorney argued that Dr. Tolge changed her opinion during her deposition and only found 5 percent lower extremity impairment. Accordingly, the respondents argued it was the claimant’s burden to prove the DIME physician’s rating was incorrect. The claimant disagreed.
After reading Dr. Tolge’s deposition, the ALJ determined Dr. Tolge assigned a combined rating of 13 percent whole person impairment. Therefore, the ALJ determined the respondents bore the burden to prove the correct impairment rating was limited to 5 percent of the lower extremity. Relying on the testimony of Dr. Ryan, the ALJ also determined the respondents failed to sustain their burden to overcome the DIME physician’s rating. Consequently, the ALJ ordered the respondents to pay permanent partial disability benefits based upon Dr. Tolge’s 13 percent whole person impairment rating.
On review, the respondents contend the ALJ misapplied the law in placing the burden of proof to overcome the DIME physician’s rating on the respondents. Alternatively, the respondents contend the ALJ erred in failing to find they sustained their burden of proof. We reject these arguments.
Initially, we note that the respondents’ Designation of Record includes the “complete Division of Workers’ Compensation file.” The record transmitted to us on appeal apparently does not include the complete Division of Workers’ Compensation file. However, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the respondents requested the ALJ to consider the entire Division of Workers’ Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(7), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers’ Compensation file, but restricted our review to the record made at the hearing.
Under the applicable law [amended by § 8-42-107(7)(b)(I), C.R.S. 2000 for injuries occurring on or after July 1, 1999], where an industrial accident results in at least one injury listed on the schedule of disabilities in § 8-42-107(2), and at least one injury that is not listed on the schedule, the scheduled injury must be converted to a whole person impairment rating, and all effects of the accident are compensated as a percentage of whole-person impairment. Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo 1996). Further, the statutory language currently codified at § 8-42-107(8)(c), C.R.S. 2001, provides that the DIME physician’s impairment rating is binding unless the party who disputes the accuracy of the rating presents “clear and convincing evidence” that the rating is wrong. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Clear and convincing evidence is evidence which demonstrates that it is “highly probable” the DIME physician’s rating is incorrect. Page v. Clark, 197 Colo. 306, 592 P.2d 792
(1979).
Contrary to the respondents’ contention, their interpretation of the DIME report is not determinative of which party has the burden to overcome the DIME physician’s rating. Rather, where the DIME report is subject to conflicting inferences, or there a factual dispute concerning the exact meaning of the DIME report, the ALJ must determine the meaning of the DIME report as a matter of fact. Moreover, that determination must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001; Blue Mesa Forest v. Lopez, 928 P.2d 831
(Colo.App. 1996).
Here, there was a factual dispute concerning the permanent impairment rating assigned by Dr. Tolge. The respondents argued Dr. Tolge retracted all of the January 25 impairment rating except 5 percent for peripheral nervous system impairment. (Tr. pp. 4, 8). The claimant disagreed that Dr. Tolge retracted any part of the January 25 rating. Consequently, the ALJ was required to determine as a matter of fact what impairment rating Dr. Tolge assigned to the industrial injury.
During her deposition, Dr. Tolge did not expressly withdraw any part of her permanent impairment rating. However, she stated that she was unable to express her opinions on the cause of the hip and back impairment within a reasonable degree of medical probability. (Tolge depo. pp. 11-12, 14). On the other hand, she admitted she could not state within a reasonable degree of medical probability that the claimant’s impaired range of motion was not related to the dog bite and she stated that she knew of no cause other than the pain and gait changes from the injury which would have caused the claimant’s hip problem. (Tolge depo. pp. 22, 23).
The ALJ found Dr. Tolge’s testimony was internally inconsistent and subject to conflicting inferences. Within his sole prerogative, the ALJ resolved the inference in favor of the claimant and rejected the respondents’ contention that Dr. Tolge retracted her impairment rating for range of motion deficits in the right hip and low back. Accordingly, insofar as the respondents asserted that the claimant was limited to permanent partial disability benefits for 5 percent of the lower extremity, the ALJ correctly determined that the respondents had the burden to overcome the DIME physician’s opinions.
Further, we must uphold the ALJ’s finding that the respondents failed to sustain their burden of proof if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. Application of the substantial evidence test requires that we 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, supra. Accordingly, the scope of our review is narrow. Metro Moving Storage Co. v. Gussert, supra.
We have reviewed the record and perceive no basis on which to disturb the ALJ’s determination that the respondents failed to overcome Dr. Tolge’s rating. There is substantial evidence in the medical reports of Dr. Olson, as well as the testimony of Dr. Tolge, Dr. Ryan, and the claimant to support the ALJ’s finding that the industrial injury caused the claimant to develop an antalgic gait. Further, the ALJ reasonably inferred from the testimony of Dr. Tolge and Dr. Ryan that pain from the gait caused the claimant’s impaired range of motion to the right hip and low back. These findings support the ALJ’s determination that Dr. Tolge did not err in assigning a medical impairment rating for range of motion deficits in the right hip and low back.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 22, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ Kathy E. Dean
________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate this Orderis commenced in the Colorado Court of Appeals, 2 East 14th Avenue,Denver, CO 80203, by filing a petition for review with the Court, withintwenty (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 mustserve a copy of the petition upon all other parties, including theIndustrial Claim Appeals Office, which may be served by mail at 1515Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed January 7, 2002 to the following parties:
Shelly Finn, 807 County Road 17, Gunnison, CO 81230
Glenn Mickelson, United Parcel Service, 5020 Ivy St., Commerce City, CO 80022
Liberty Mutual Fire Insurance, 13111 E. Briarwood Ave., #100, Englewood, CO 80112
Sandy Parrott, Liberty Mutual Insurance Company, 2100 Walnut Hill Lane, #100, Irving, TX 75038
William J. Macdonald, Esq., 3515 S. Tamarac Dr., #200, Denver, CO 80237 (For Claimant)
Jonathan S. Robbins, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
BY: A. Chick