W.C. No. 4-401-701Industrial Claim Appeals Office.
July 27, 2001
FINAL ORDER
The claimant seeks review of an Supplemental Order of Administrative Law Judge Jones (ALJ) which determined the respondents overcame the permanent medical impairment rating of the Division-sponsored independent medical examiner (DIME), and denied permanent partial disability benefits. We affirm.
The claimant suffered an admitted injury on October 27, 1998, and as a result, experienced neck and left shoulder pain. The injury was treated by Dr. Belleville, who removed him from work. MRI studies revealed a mild bulge at C4/5 and C5/6 with central canal stenosis. In January 1999, Dr. Belleville released the claimant to return to part-time modified employment which did not require lifting, pushing or pulling more than 15 pounds and climbing. On February 11, 1999, Dr. Belleville reduced the claimant’s restrictions to allow lifting up to 20 pounds. In late February, the claimant reported no improvement and complained of severe pain and headaches. In March, the claimant sought emergency treatment for complaints of muscle spasms in the left shoulder. Repeat MRI studies showed no change from the prior MRI.
The respondents obtained surveillance video of the claimant on December 18, 1999, January 4, 1999, and March 6, 1999. After reviewing the surveillance videos, Dr. Belleville opined that the claimant’s cervical range of motion in the video was inconsistent with the range of motion often demonstrated by the claimant during clinical examination. Dr. Belleville further opined that the physical abilities demonstrated on the video “clearly exceed” the claimant’s subjective reports of his limitations. In a report dated March 23, 1999, Dr. Belleville discharged the claimant from treatment, placed the claimant at maximum medical improvement (MMI), assigned a 0 percent medical impairment rating, and released the claimant to return to work without restrictions.
The claimant requested a DIME on the issue of medical impairment. The DIME physician, Dr. Curiel, assigned a 13 percent whole person impairment rating for a specific disorder of the cervical spine under Table 53 of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides), and range of motion deficits to the cervical spine. Dr. Curiel opined the surveillance tapes did not contradict the claimant’s assertions of neck pain as documented on past physical exams.
The ALJ found Dr. Curiel failed to follow the AMA Guides insofar as he failed to contact Dr. Belleville to discuss disparities between their impairment ratings. The ALJ also determined the unresolved disparity in the impairment ratings, the surveillance videos, and the testimony of Dr. Belleville and physical therapist, Catherine Sterkel, was “clear and convincing evidence” that the DIME physician’s medical impairment rating was probably incorrect. Determining that Dr. Belleville’s rating was the most accurate reflection of the claimant’s condition, the ALJ denied the claim for medical impairment benefits.
On appeal, the claimant contends the ALJ erred in finding the DIME physician’s opinions were overcome based Dr. Curiel’s failure to consult with Dr. Belleville about the discrepancies in their medical impairment ratings. The claimant contends consultation is only necessary if the “findings of the impairment evaluator are not consistent with those in the record.” The claimant contends Dr. Curiel did not find any inconsistencies between his observations and those in the clinical record, and therefore, he was not required to contact Dr. Belleville. The claimant also contends Dr. Belleville incorrectly rated his impairment, and therefore argues the ALJ erroneously relied on Dr. Belleville’s medical impairment rating.
The respondents contend the claimant waived the argument that Dr. Belleville failed to comply with the AMA Guides in rating the claimant’s permanent medical impairment. We disagree. We conclude it is inherent in the claimant’s defense of Dr. Curiel’s medical impairment rating that Dr. Belleville incorrectly rated the claimant’s permanent medical impairment. Therefore, the argument is properly before us on review.
Under § 8-42-107(8)(c), C.R.S. 2000, the DIME physician is required to determine the claimant’s permanent medical impairment in accordance with the AMA Guides. The statute also provides that the DIME physician’s medical impairment rating is binding unless overcome by “clear and convincing evidence.” Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995). “Clear and convincing evidence” is evidence which is stronger than a preponderance, is unmistakable and is free from serious or substantial doub . DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318
(1980); Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979).
Whether the DIME physician’s medical impairment rating has been overcome by clear and convincing evidence is a question of fact for the ALJ. Metro Moving Storage Co. v. Gussert, supra. In resolving this issue, the ALJ must consider the factual question of whether the DIME physician properly applied the AMA Guides and other rating protocols. See Metro Moving Storage Co. v. Gussert, supra. Proof of a DIME physician’s deviation from established rating protocols is some evidence the ALJ may consider in determining whether the DIME’s rating has been overcome by clear and convincing evidence. Metro Moving Storage Co. v. Gussert, supra; 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).
We must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. Further, application of the substantial evidence test requires that we defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she 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.
Dr. Belleville testified that the preferred rating protocol under the AMA Guides is for the DIME physician to contact the primary treating physician where there is a “substantial discrepancy” between the medical impairment rating of the DIME and the primary treating physician. (Tr. December 17, 1999, pp. 58, 64). Dr. Belleville opined there was a discrepancy between his rating and the DIME physician’s rating because the medical record does not support the diagnosis of “spasm/rigidity, greater than [sic] six months of pain” as required for an impairment rating under Table 53 of the AMA Guides, and the claimant does not meet the criteria for an impairment rating under any other subsection of Table 53. (Tr. December 17, 1999, p. 59).
Expressly crediting Dr. Belleville’s testimony the ALJ implicitly found a substantial discrepancy between the medical impairment ratings of Dr. Belleville and Dr. Curiel. Furthermore, it is undisputed that Dr. Curiel did not attempt to contact Dr. Belleville to discuss the discrepancy between their assigned impairment ratings. Therefore, the ALJ reasonably inferred that Dr. Curiel deviated from the AMA Guides in failing to consult with Dr. Belleville.
Moreover, there is substantial evidence in the testimony of Dr. Belleville, Ms. Sterkel, and Dr. Bender that the claimant’s clinical presentation was inconsistent with the functional activities demonstrated on the surveillance videos. The claimant requests that we reweigh the evidence on review. However, we have no authority to substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the evidence. See City of Durango v. Dunagan, 939 P.2d 496
(Colo.App. 1997). Consequently, we may not disturb the ALJ’s finding that the respondents overcame the DIME physician’s medical impairment rating.
We also note that our review is limited to the record before the ALJ. City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995). Therefore, we have not considered the portions of the AMA Guides attached to the claimant’s brief in support of the petition to review.
In reaching our conclusions, we agree with the claimant that the record does not support the ALJ’s finding that the surveillance video shows the claimant carrying two newly filled propane tanks in snowy weather. The respondents concede the surveillance video shows the claimant carrying and loading one propane tank into his vehicle. However, we conclude the error is harmless.
The ALJ explicitly credited Dr. Belleville’s opinions concerning the significance of the activities depicted on the surveillance video. Unlike the ALJ, Dr. Belleville correctly recognized the claimant was filled carrying one propane tank. (See Belleville, March 23, 1999).
The claimant also disputes the ALJ’s finding that the propane tank was filled. However, the ALJ was not required to credit the claimant’s testimony, even if uncontroverted. See Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970); Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (ALJ may credit all, part, or none of a witness’ testimony). We have viewed the surveillance videos. Based upon our review of the surveillance videos, we conclude the ALJ reasonably inferred that the propane tank was not empty when the claimant loaded it into his vehicle.
The claimant also contends that the other activities demonstrated on the surveillance video fell within his lifting restrictions. However, we agree with the ALJ that the surveillance videos support Dr. Belleville’s opinions that the claimant’s range of motion was inconsistent with clinical reports of the claimant’s limitations.
Finally, we reject the claimant’s contention the ALJ erroneously relied on Dr. Belleville’s medical impairment rating. Contrary to the claimant’s contention, we are not persuaded the record compels a finding that Dr. Belleville demonstrated bias in favor of the employer, or that Dr. Belleville “ignored” documented evidence of the claimant’s cervical injury.
Further, Dr. Belleville testified Level II accreditation training from the Division of Workers’ Compensation precludes a rating for range of motion deficits in the absence of rateable impairment for a specific disorder under Table 53. (Tr. December 17, 1999, p. 60). Because the ALJ credited Dr. Belleville’s opinion that the claimant sustained no rateable impairment under Table 53, the ALJ could, and reasonably did infer Dr. Belleville did not deviate from the AMA Guides in failing to perform inclinometer testing of the claimant’s range of motion. Dr. Belleville’s opinions are buttressed by the testimony of Ms. Sterkel and Dr. Bender. Therefore, we cannot say the ALJ erred in giving the greatest weight to the opinions of Dr. Belleville. See Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000) (credibility determinations binding except in extreme circumstances).
Nevertheless, the claimant contends the ALJ was precluded from relying on Dr. Belleville’s opinions because Dr. Belleville deviated from the AMA Guides in rating medical impairment based upon a review of surveillance videos without conducting a physical examination of the claimant. Again, we disagree.
Once the ALJ determines the DIME physician’s rating has been overcome, the determination of the claimant’s permanent medical impairment becomes a question of fact for resolution by the ALJ. Cf. Metro Moving Storage Co. v. Gussert, supra. Her , as we understand the ALJ’s order, she independently determined from her own observations that the claimant’s physical activity as demonstrated on the surveillance videos, was inconsistent with the claimant’s reports to his physicians. (See Findings of Fact 11,13, 17, 26). Consequently, the ALJ could discredit the claimant’s assertion of permanent impairment, and rely on Dr. Belleville’s opinion to the extent that it was consistent with her own assessment. (See Finding of Fact 30). Therefore, regardless of the merits of the claimant’s contention, the ALJ could rely on Dr. Belleville’s opinions as some evidence that the claimant’s functional abilities on the surveillance videos did not reflect measurable medical impairment.
IT IS THEREFORE ORDERED that the ALJ’s Supplemental Order dated February 20, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
NOTICE
An action to modify or vacate this Order may be commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed July 27, 2001 to the following parties:
Richard G. Frisby, 6300 West County Road 50, Bellvue, CO 80512-5801
Anheuser Busch Companies, Inc., 1 Busch Pl., St. Louis, MO 63118-1849
Susan Morehouse, Anheuser Busch Companies, Inc., 2351 Busch Dr., Ft. Collins, CO 80521
Pacific Employers Insurance (CIGNA), P. O. Box 2941, Greenwood Village, CO 80150
Craig Stirn, Esq., 2629 Redwing Rd., #280, Ft. Collins, CO 80526 (For Claimant)
Kim D. Starr, Esq., 2629 Redwing Rd., #330, Ft. Collins, CO 80526 (For Respondents)
BY: A. Pendroy