W.C. No. 4-131-497Industrial Claim Appeals Office.
May 1, 1996
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Wells (ALJ) which required the respondent to pay permanent partial disability benefits based upon medical impairment of 14 percent of the whole person. We affirm.
The record reveals that the claimant suffered a back injury in 1992 while employed for the respondent. Apparently, the claimant also suffered a prior back injury in 1989 during military service.
The primary treating physician for the industrial injury, Dr. Bainbridge, determined the claimant to be at maximum medical improvement (MMI) on October 13, 1992, with permanent medical impairment of 17 percent of the whole person under the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides). Dr. Bainbridge apportioned 8.5 percent of the impairment to the claimant’s pre-existing back condition and therefore, rated the claimant’s impairment from the industrial injury as 8.5 percent of the whole person.
Dr. Tyler performed a Division sponsored independent medical examination (IME) under the provisions of § 8-42-107(8)(c), C.R.S. (1995 Cum. Supp.). In a report dated August 3, 1994, Dr. Tyler agreed with Dr. Bainbridge’s determination of MMI. Furthermore, Dr. Tyler relied upon the range of motion measurements of Dr. Bainbridge to find that the claimant sustained medical impairment of 14 percent of the whole person under the AMA Guides. However, Dr. Tyler did not apportion any part of the claimant’s impairment to the prior back injury.
The claimant was also evaluated by Dr. Roth who agreed with Dr. Tyler’s MMI date. Further, Dr. Roth rated the claimant’s impairment as 20 percent of the whole person under the AMA Guides, and apportioned part of the impairment to the claimant’s pre-existing condition. As a result, Dr. Roth opined that the 1992 injury caused impairment of 9 percent of the whole person which he subsequently corrected to 11 percent. During testimony Dr. Roth stated that he apportioned the impairment pursuant to Level II accreditation instructions and the Rules of Procedure, Part XIX 7 Code Colo. Reg. 1101-3 at 123 (1995) [adopted 10/12/95 effective 11/30/95]. Dr. Roth also stated that Dr. Tyler’s failure to apportion the claimant’s impairment was inconsistent with the AMA Guides and Level II accreditation instructions.
The ALJ determined that the AMA Guides contain no definitive method for apportioning medical impairment, and that there was no method prescribed by statute or procedural rule which is applicable to this claim. The ALJ further determined that Dr. Roth’s testimony concerning the proper method to apportion impairment might be sufficient under a preponderance of the evidence standard, but did not constitute “clear and convincing evidence” to overcome Dr. Tyler’s medical impairment rating as required by § 8-42-107(8)(c). Therefore, the ALJ concluded that Dr. Tyler’s medical impairment rating was binding on the respondent.
On appeal, the respondent essentially contends that the ALJ erred in failing to find that the respondent overcame Dr. Tyler’s rating by “clear and convincing evidence.” In support the respondent cites the fact that Dr. Tyler did not conduct his own range of motion measurements in rating the claimant’s lumbar spine impairment, and the evidence that Dr. Tyler did not apportion part of the claimant’s impairment to the 1989 injury. We perceive no error.
Admittedly, an IME physician’s apportionment of permanent medical impairment must based upon the AMA Guides. Askew v. Sears Roebuck Co., ___ P.2d ___ (Colo.App. No. 94CA1932, June 15, 1995), cert. granted, April 8, 1996. However, where the IME physician’s determination of apportionment is in accordance with the AMA Guides it is binding in the absence of “clear and convincing evidence” to the contrary.
Clear and convincing evidence is evidence which demonstrates that it is “highly probable” the IME physician’s rating is incorrect. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979); Metro Moving Storage Co. v. Gussert, ___ P.2d ___ (Colo.App. No. 94CA1926, June 15, 1995), cert. denied April 15, 1996. Put another way, to overcome the IME physician’s determination on the issue of apportionment, there must be evidence which is unmistakable and free from serious or substantial doubt that the IME physician’s determination is incorrect. DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318 (1980).
The question of whether the IME physician has properly applied the AMA Guides is itself a question of fact. Askew v. Sears Roebuck Co., supra; Metro Moving Storage Co. v. Gussert, supra. Similarly, the question of whether the respondent sustained its burden to prove that the IME physician’s opinion concerning apportionment has been overcome by clear and convincing evidence is one of fact for the ALJ. Askew v. Sears Roebuck Co., supra.
In Askew v. Sears Roebuck Co., supra, the Court of Appeals upheld an IME physician’s apportionment to a pre-existing back condition. However, the Askew court recognized that the AMA Guides are not entirely clear concerning apportionment of pre-existing conditions, and that medical experts may hold conflicting opinions concerning apportionment in particular cases. Thus, Askew stands for the proposition that the evidence in that particular case was sufficient to support the apportionment, not that there must always be apportionment of pre-existing conditions.
Here, Dr. Roth admitted that the AMA Guides do not include instructions on apportionment. (Tr. p. 42). Therefore, the record contains substantial evidence to support the ALJ’s determination that the AMA Guides do not prescribe a particular method for apportionment and specifically, the method used by Dr. Roth to apportion the claimant’s impairment.
Dr. Roth also admitted that the Workers’ Compensation Act does not include any instructions on impairment. (Tr. p. 43). Further, Rule XIX which Dr. Roth relied upon in apportioning the claimant’s impairment was not in effect at the time of Dr. Tyler’s medical impairment rating or the ALJ’s determination of the claimant’s permanent partial disability. Consequently, we cannot say that the ALJ erred in finding that there is no statute or rule governing the “correct” method for apportionment. Under these circumstances, the ALJ could and did, determine Dr. Roth’s testimony was not unmistakable evidence that Dr. Tyler improperly applied the AMA Guides on the issue of apportionment.
Similarly, we cannot say from this record that the ALJ erred in failing to find that Dr. Tyler improperly applied the AMA Guides by failing to conduct lumbar range of motion measurements. From substantial evidence in Dr. Tyler’s August 3 report, the ALJ found that Dr. Tyler did not ignore the AMA Guide’s requirement to consider range of motion measurements in rating lumbar impairment. (Tr. p. 65); CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev’d on other grounds at 783 P.2d 269 (1989) (the ALJ’s oral findings may be considered to interpret the ALJ’s written findings). Rather, the ALJ determined that because medical impairment is to be determined at the time of MMI, Dr. Tyler relied upon the range of motion measurements taken by Dr. Bainbridge rather than taking new measurements two years after MMI.
Contrary to the respondent’s contention, the “General Principles of Measurement” for impairment of the spine on page 78 of the AMA Guides do not expressly preclude the examining physician from relying on valid range of motion measurements taken at the time of MMI instead of conducting new measurements at the time of the IME evaluation. In fact, page 78 states that range of motion measurements are to be taken when the individual’s condition has become “static and well stabilized.”
Similarly, Dr. Roth could not identify any specific section of the AMA Guides which support his opinion that Dr. Tyler’s failure to conduct his own range of motion measurements was inconsistent with the AMA Guides. (Tr. p. 34). In fact, Dr. Roth stated that he did not know if the AMA Guides contained such language. Instead, Dr. Roth stated that he believed the requirement was “implied” in the AMA Guides and that it was the method taught in the Level II accreditation courses. (Tr. pp. 35, 37).
The ALJ did not find this testimony to rise to the level of “clear and convincing” evidence that the AMA Guides preclude a physician from relying on range of motion measurements taken at the time of MMI rather than taking new measurements. The respondent invites us to reweigh the evidence and draw a different conclusion concerning the credibility and probative value of Dr. Roth’s testimony. However, on this record, interference with the ALJ’s order is impermissible since the ALJ’s findings of fact are supported by substantial evidence. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.) Metro Moving Storage Co. v. Gussert, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 18, 1995, 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 iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed May 1, 1996 to the following parties:
James G. Foster, 880 Beaconlite Rd., Monument, CO 80132
Dwayne Holmes, Claims Administrator, Continental Airlines, P.O. Box 4607, Houston, TX 77210-4607
Connie Cridlebaugh, Scott Wetzel Services, Inc., P.O. Box 6578, Englewood, CO 80155-6578
William A. Alexander, Jr., Esq., 3608 Galley Road, Colorado Springs, CO 80909-4349 (For the Claimant)
Scott L. Evans Esq., 3900 East Mexico Ave., Ste. 1300, Denver, CO 80210 (For the Respondents)
BY: _______________________