W.C. No. 4-646-000 4-646-001.Industrial Claim Appeals Office.
November 13, 2006.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) dated June 9, 2006 that determined the respondents had failed to prove by clear and convincing evidence that the medical impairment determination of the Division-sponsored independent medical examination (DIME) physician was incorrect. We affirm.
The claimant sustained two industrial injuries to his low back while working for the employer. The claimant saw various physicians and on June 3, 2005, Dr. Danahey, an authorized treating physician, determined that the claimant was at maximum medical improvement (MMI) due to noncompliance and that he suffered no permanent impairment. The insurer filed a final admission of liability based on the report of Dr. Danahey. The parties combined the two claims and sought a single DIME. The DIME physician diagnosed low back pain with radiculopathy, chronic low back pain with herniated disc at L4-5 encroaching on the L5 nerve root, and left S1 radiculopathy. The DIME physician determined the claimant had seven percent impairment under Table 53 of The American Medical Association Guidelines to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides), for specific disorders of the lumbar spine. The DIME physician determined the claimant also had a range of motion impairment of eleven percent and one percent whole person impairment due to radiculopathy. The DIME physician opined that the claimant had a total eighteen percent whole person impairment. Dr. Lesnak agreed that claimant suffered a seven percent impairment pursuant to Table 53 but did not included a rating for loss of range of motion impairment rating because the measurements he obtained were inconsistent with his observation of the claimant’s range of motion. Dr. Lesnak also disagreed with any rating for radiculopathy because the claimant demonstrated no evidence of radiculopathy during his examination.
The ALJ noted that Dr. Lesnak clearly disagreed with the DIME rating but that disagreement did not demonstrate that that it was highly probable or free from serious or substantial doubt that the DIME physician was wrong regarding the range of motion or the radiculopathy components of the rating. The ALJ found that no clear and convincing evidence demonstrated that the eighteen percent whole person impairment rating by the DIME physician was incorrect.
On appeal the respondents contend that they sustained their burden of overcoming the DIME physician’s opinion in regards to the range of motion and the radiculopathy components of the rating by demonstrating that the DIME physician’s impairment rating was not conducted in accordance with the AMA Guides. The respondents argue that given inconsistencies in various range of motion tests by different medical care providers they proved by clear and convincing evidence that the range of motion testing by the DIME physician was invalid.
A DIME physician must rate medical impairment in accordance with the provisions of the AMA Guides. Sections 8-42-101(3.7), 8-42-107(8)(c), C.R.S. 2006. The DIME physician’s finding concerning a claimant’s impairment rating is binding on the parties unless overcome by clear and convincing evidence. Section 8-42-107(8)(c); Whiteside v. Smith, 67 P.3d 1240, 1246-47
(Colo. 2003). Whether the DIME physician correctly applied th AMA Guides, and whether the rating itself has been overcome, are questions of fact for determination by the ALJ. Wilson v. Industrial Claim Appeals Office of the State of Colorado, 81 P.3d 1117, (Colo.App. 2003) ; See Wackenhut Corp. v. Indus. Claim Appeals Office, 17 P.3d 202, 204 (Colo.App. 2000).
The report from the DIME physician’s indicates that the permanent impairment was calculated according to the AMA Guides
and that the range of motion was measured according to Tables 60 and 61 of the AMA Guides. Exhibit 2 at 6. It is true that the medical record contains range of motion tests that are inconsistent with the results found during the DIME examination and which might have supported a contrary result, but the mere existence of conflicting evidence affords no basis for concluding that the ALJ erred in finding the respondents failed to overcome the DIME physician’s rating. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
The ALJ was persuaded that the DIME physician’s rating was not overcome, and this record reveals no basis for interfering with that factual determination. It was for the ALJ to determine the weight and credibility of the expert medical opinions offered in this case, and we cannot say he erred as a matter of law in determining that the opinion of Dr. Lesnak and other evidence presented by the respondents was insufficient to overcome the DIME physician’s rating by clear and convincing evidence.
The respondents further contend that the ALJ erred in determining that the respondents did not overcome the DIME opinion by clear and convincing evidence regarding the impairment based upon the claimant’s radiculopathy. We disagree.
As noted above, the question of whether the DIME physician properly applied the AMA Guides, and ultimately whether the rating has been overcome, are questions of fact. Dr. Lesnak found no evidence of radiculopathy. However, the ALJ found, with record support, that other physicians had diagnosed radiculopathy, with leg symptoms. Dr. Danahey diagnosed radiculopathy. Exhibit D at 17. Dr. Ogsbury’s impression included radiculopathy. Exhibit G at 77. The DIME physician testified that she gave the claimant one percent whole person impairment for radiculopathy because of a sensory deficit and she further noted that the claimant had leg symptoms that were very suggestive of an active L-5 radiculopathy. Exhibit 4 at 13. Under these circumstances, we perceive no basis on which to interfere with the ALJ’s finding.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 9, 2006, is affirmed
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Curt Kriksciun
___________________________________ Thomas Schrant
Stephen Fisher, Denver, CO, Cherry Hills Healthcare c/o Kindred Healthcare, Delores Sharp, Louisville, KY, Insurance Company of the State of Pennsylvania c/o Constitution State Service Company, Larry Peluso, Denver, CO, Senter, Goldfarb, Rice, Joe M. Espinosa, Esq., Denver, CO, (For Respondents)
Mark A. Simon Esq., Denver, CO, (For Claimant)