W.C. No. 4-191-759Industrial Claim Appeals Office.
May 6, 1996
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Henk (ALJ) which awarded permanent partial disability benefits. We affirm.
The claimant underwent a Division sponsored independent medical examination (IME) by Dr. Arnold, pursuant to the provisions of §8-42-107(8)(c), C.R.S. (1995 Cum. Supp.). Dr. Arnold obtained range of motion measurements, some of which met the validity criteria in the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides). However, Dr. Arnold determined that the measurements were invalid based upon his determination that the claimant was trying to manipulate the results by giving less than maximum effort. Therefore, Dr. Arnold determined that the claimant suffered zero medical impairment from his industrial injury.
The ALJ determined that Dr. Arnold did not properly apply the AMA Guides when he stated that the claimant has no medical impairment despite valid range of motion measurements. The ALJ also found that according to Dr. Arnold, “the AMA Guides are merely a guide which he does not have to strictly follow.” Based upon these findings, the ALJ determined that the claimant overcame Dr. Arnold’s medical impairment rating by clear and convincing evidence.
Crediting the opinion of Dr. Young, the ALJ further found that a proper application of the AMA Guides establishes that the claimant sustained a 17 percent whole person impairment as a result of his industrial injury. Therefore, the ALJ ordered the respondents to pay permanent partial disability benefits in accordance with Dr. Young’s impairment rating.
On appeal, the respondents contend that the Workers’ Compensation Act requires the presentation of expert medical testimony to overcome the IME physician’s opinion concerning the proper application of the AMA Guides. In support, the respondents rely upon Melville v. Southward, 791 P.2d 383
(Colo. 1990). The respondents also contend that the claimant failed to present any expert medical evidence that Dr. Arnold improperly applied the AMA Guides. Therefore, the respondents argue that there is not substantial evidence in the record to support the ALJ’s finding that Dr. Arnold’s medical impairment rating was overcome by clear and convincing evidence. We reject these arguments.
In Seagrave v. Sanders, W.C. No. 3-107-326, June 5, 1996, we rejected a similar argument by the respondent-insurer which was premised on Melville v. Southward, supra. Specifically, the argument is based upon an analogy to medical malpractice cases where the standard of care must be established by expert testimony. However, Melville v. Southward concerns the requirement of expert testimony where the “trier or fact” is a jury. Further, Melville is predicated on the belief that “matters relating to medical diagnoses and treatment ordinarily involve a level of technical knowledge and skill beyond the lay knowledge and experience,” of the jurors. 791 P.2d at 387.
In contrast, the ALJ is the trier of fact in workers’ compensation claims. See §§ 8-43-201 8-43-207(1), C.R.S. (1995 Cum. Supp.). Furthermore, ALJs are presumed to possess special expertise and competence in dealing with medical evidence. Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941).
The respondents’ arguments to the contrary are not persuasive. Therefore, we reject the respondents’ argument that expert medical testimony is required to overcome the IME physician’s impairment rating.
In any event, the record contains expert medical evidence to support the ALJ’s determination that Dr. Arnold improperly applied the AMA Guides. Dr. Arnold testified as a medical expert. (Tr. p. 40). He stated his belief that the AMA Guides allow the rating physician to issue a zero impairment rating if the physician does not believe the claimant has given a full and honest effort in the range of motion tests, or that the measurements are inconsistent with objective tests. (Tr. pp. 48, 73, 77, 90). However, Dr. Arnold was not able to identify any specific language in the AMA Guides which allows a physician to invalidate otherwise valid range of motion measurements on this basis. (Tr. pp. 80-82, 88-89, 95). Accordingly, Dr. Arnold’s own testimony supports the ALJ’s finding that Dr. Arnold did not correctly apply the AMA Guides.
Furthermore, the ALJ’s findings are supported by Dr. Young’s testimony. Dr. Young’s testified that, under AMA Guides, Dr. Arnold should not have invalidated those range of motion measurements which met the validity criteria in the AMA Guides. (Tr. p. 33). Dr. Young’s testimony is buttressed by those sections of the AMA Guides which were submitted to the ALJ.
As argued by the respondents, Dr. Young also admitted that he did not know whether the AMA Guides allow the physician to give a zero impairment rating if the physician believes that the claimant did not give a full and honest effort in the range of motion measurements. (Tr. p. 32). However, the ALJ was not required to credit all of Dr. Young’s testimony and, insofar as it was inconsistent, it was the ALJ’s sole prerogative to resolve the inconsistencies by crediting the testimony which indicated that Dr. Young disagreed with Dr. Arnold’s interpretation of the AMA Guides. El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993).
We also note Dr. Dotson’s September 15, 1994 report which contains his opinion that the claimant sustained a loss of range of motion measured as 45 percent whole person impairment under the AMA Guides. Dr. Dotson also stated that “I know of no procedure for assigning a zero rating for inconsistency at one sitting.” Under these circumstances, we cannot say that the ALJ erred in determining that the claimant overcame the IME physician’s rating by clear and convincing evidence. Metro Moving Storage Co. v. Gussert, ___ P.2d ___ (Colo.App. No. 94CA1926, June 15, 1995), cert. denied April 15, 1996 (ALJ’s finding that IME physician’s impairment rating is overcome by “clear and convincing evidence is binding if supported by substantial evidence in the record).
IT IS THEREFORE ORDERED that the ALJ’s order dated July 20, 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 6, 1996 to the following parties:
Matthew Gonzales, P.O. Box 441, Taos, NM 87571
Blount, Inc., 4520 Executive Park Drive, Montgomery, AL 36116
Colorado Compensation Insurance Authority, Attn: C. Boyd (Interagency Mail)
Douglas A. Thomas, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701 (For the Respondents)
Michael W. Seckar, Esq., 402 W. 12th St., Pueblo, CO 81003 (For the Claimant)
BY: _______________________