W.C. No. 4-336-566Industrial Claim Appeals Office.
September 5, 2001
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Wheelock (ALJ) which awarded permanent partial disability benefits based upon 51 percent whole person impairment. We affirm.
In 1997, the claimant suffered a repetitive trauma injury to her right arm. Later she developed pain in her left arm. Dr. Griffis treated the claimant for Reflex Dystrophy Syndrome (RSD) and depression. At maximum medical improvement, Dr. Griffis assigned a 37 percent whole person impairment rating due to 30 percent impairment of the right upper extremity and 10 percent psychological impairment. The claimant disputed Dr. Griffis’ impairment rating and requested a Division-sponsored independent medical examination (DIME).
The DIME physician, Dr. Jenks, assigned a 15 percent rating for impairment of right upper extremity, 5 percent for impairment to the left upper extremity, and 5 percent for mental impairment. Dr. Jenks’ combined rating was 23 percent whole person impairment.
Following a hearing, the ALJ found that Dr. Jenks admitted his physical and psychological impairment ratings were wrong. Therefore, the ALJ determined the claimant sustained her burden to overcome the DIME physician’s rating. The ALJ also found errors in Dr. Griffis’ physical impairment rating. Under these circumstances, the ALJ determined she was “free to enter an order of impairment based upon the preponderance of the evidence.” (Conclusions of Law 2).
The ALJ adopted Dr. Griffis’ rating for psychological impairment, but determined that neither Dr. Griffis nor Dr. Jenks correctly rated the claimant’s physical impairment. Ultimately, the ALJ found the claimant sustained 45 percent impairment to the upper extremities under the provisions found at page 107 of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides) and required the respondent to pay permanent disability benefits based upon a combined rating of 51 percent whole person impairment.
On review, the respondent does not dispute the ALJ’s findings that the claimant overcame Dr. Jenks’ mental and physical impairment ratings. Instead, the respondent contends the ALJ exceeded her authority by independently calculating the claimant’s permanent medical impairment. The respondent argues that once the ALJ found the DIME physician’s rating was overcome, the ALJ was required to award benefits based upon one of the other impairment ratings of record. Here, the record contains only two impairment ratings. The claimant contends that because Dr. Griffis and Dr. Jenks agreed Dr. Griffis’ 30 percent rating for permanent physical impairment was correct, the ALJ erred in failing to adopt that rating as the correct measure of the claimant’s permanent physical impairment. We disagree.
Initially, we note that the respondent’s Designation of Record includes the “entire Division of Workers’ Compensation file.” The record transmitted to us for review apparently does not include the complete Division of Workers’ Compensation file. However, our review is limited to the evidentiary record before the ALJ, and the record does not show the respondent requested that the ALJ 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 considered the Division of Workers’ Compensation file.
Section 8-42-107(8)(c), C.R.S. 2000, requires that all whole person impairment ratings be conducted by Level II accredited physicians in accordance with the AMA Guides. However, the General Assembly recognized that the AMA Guides are subject to more than one interpretation, and therefore, § 8-42-107(8)(c) allows a DIME physician’s rating to be overcome by “clear and convincing evidence.” Furthermore, the ultimate determination of whether the physician correctly applied the AMA Guides is a factual issue reserved to the ALJ. See Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
In determining whether the DIME physician’s rating is correct, the ALJ must consider whether the DIME physician correctly applied the AMA Guides and other rating protocols. It follows the ALJ must also determine whether the medical opinions offered to overcome the DIME physician’s rating are themselves consistent with the AMA Guides and other rating protocols.
Contrary to the respondent’s contention, § 8-42-107(8)(c) does not compel the ALJ to award permanent partial disability benefits based upon one of the medical impairment ratings of record. Cf. Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995) (statute only requires deference to treating physician’s opinion of medical impairment in the absence of a DIME). In fact, because all whole person medical impairment ratings must be in accordance with the AMA Guides, it would be contrary to the statute to read § 8-42-107(8)(c) to compel the ALJ to award permanent partial disability benefits based upon a rating the ALJ finds was inconsistent with the AMA Guides.
Rather, where the ALJ determines that the DIME physician’s rating has been overcome, the question of the claimant’s correct medical impairment rating becomes a question of fact for the ALJ. Compare Arapahoe County v. Industrial Claim Appeals Office, Colo. App. No. 99CA2151, July 13, 2000 (not selected for publication) (Court of Appeals remanded the matter to the ALJ for a determination of whether the claimant’s “sleep disorder” was ratable). The only limitation is that the ALJ’s findings must be supported by the record and consistent with the AMA Guides and other rating protocols. Thus, the ALJ did not err in finding that in the absence of any existing medical impairment rating which complied with the AMA Guides, she was free to calculate the claimant’s impairment based upon the preponderance of the evidence. See
§ 8-43-201, C.R.S. 2000; Younger v. City and County of Denver, 810 P.2d 647 (Colo. 1991)
We must uphold the ALJ’s factual determinations if supported by substantial evidence in the record and the applicable law. Section 8-43-301(8), C.R.S. 2000; Metro Moving Storage Co. v. Gussert, supra. The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ’s assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert, 914 P.2d at 415.
Here, the ALJ adopted Dr. Griffis’ 10 percent rating for psychological impairment. However, the ALJ found errors in Dr. Griffis’ rating for physical impairment. In particular, the ALJ found Dr. Griffis erred in failing to assign a rating for bilateral impairment to the upper extremities. Further, Dr. Griffis admitted that a rating physician who fails to address the claimant’s ability to perform activities of daily living has not properly applied the AMA Guides in evaluating impairment to the upper extremities due to RSD under page 107 of the AMA Guides. (Tr. p. 86). The ALJ found that even though Dr. Griffis admitted the claimant has difficulty with self care activities, Dr. Griffis failed to address this factor in his medical impairment rating report. The ALJ’s findings are supported by substantial evidence and plausible inferences drawn from the record. (See Tr. p. 34, Dr. Griffis July 31 and September 3, 1997 reports; Dr Goldman November 12, 1997 report).
We also note that once the ALJ determined Dr. Jenks’ medical impairment rating was overcome, she was not required to afford any special weight to Dr. Jenks’ testimony concerning the correct impairment rating. Cf. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844
(Colo.App. 2000); Henderson v. Eastman Kodak, Inc., W.C. No. 4-256-823
(February 24, 2000), aff’d., Henderson v. Industrial Claim Appeals Office, Colo. App. No. 99CA1532, February 24, 2000 (not selected for publication) (IME physician opinion on need for Grover benefits not subject to special weight). Rather, the ALJ was free to credit part or none of Dr. Jenks’ testimony. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). It follows that the ALJ was not bound by Dr. Jenks’ opinion that Dr. Griffis’ 30 percent physical impairment rating was correct. See Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981) (even uncontroverted medical evidence not binding on the ALJ). Therefore, the ALJ was not compelled to award benefits based upon Dr. Griffis’ rating.
We also reject the respondent’s contention that there is insufficient evidence to support the ALJ’s 45 percent physical impairment rating. Dr. Griffis and Dr. Jenks agreed the AMA Guides require RSD to be rated under section 4.1b of Chapter 4 (The Nervous System) for injuries involving spinal cord disorders. They also agreed that it was proper to apply the tables on page 107 of the AMA Guides to determine the extent of upper extremity impairment attributable to the RSD. The second of the two tables applies where the spinal cord disorder affects both upper extremities.
Dr. Griffis and Dr. Jenks both rated the claimant’s impairment using the first table on page 107. However, at hearing, Dr. Jenks admitted the appropriate method for rating the claimant’s physical impairment was application of the second table. Dr. Jenks also agreed that the severity of the claimant’s upper extremity impairment was most consistent with category 3 of the second table which recommends an impairment rating of 45 to 80 percent where the claimant “can use both extremities but has difficulty with self care activities.” (Tr. p. 134, 136). Dr. Jenks’ testimony is consistent with the testimony of the claimant and Dr. Griffis concerning the claimant’s difficulties with self care activities and supports the ALJ’s finding that the claimant suffered permanent medical impairment at the lower end of the impairment rating range provided in category 3. Under these circumstances, the record sufficiently supports the ALJ’s decision to assign a 45 percent impairment rating as opposed to 80 percent or something in between. In any case, the ALJ’s refusal to assign a higher rating enured to the benefit of the respondent. Cf. Williamson v. School District No. 2, 695 P.2d 1173
(Colo.App. 1984) (party challenging order as abuse of discretion must show sufficient prejudice before it is reversible error).
The respondent’s remaining arguments have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 30, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
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 September 5, 2001 to the following parties:
Juliann Garlets, P. O. Box 1615, Centralia, WA 98531
Vicki Alexander, Memorial Hospital, 1400 E. Boulder St., Colorado Springs, CO 80909
Jon C. Thomas, Esq., 1032 N. Wahsatch Ave., Colorado Springs, CO 80903-2484 (For Claimant)
Susan K. Reeves, Esq., 111 S. Tejon St., #700, Colorado Springs, CO 80903 (For Respondent)
BY: A. Pendroy