W.C. No. 4-516-629.Industrial Claim Appeals Office.
August 17, 2005.
FINAL ORDER
The claimant seeks review of an order entered on remand by Administrative Law Judge Martinez (ALJ), which determined the claimant failed to overcome the Division-sponsored independent medical examination (DIME) physician’s finding that there was no compensable psychological impairment. We affirm.
In September 2001 the claimant suffered an admitted lumbar injury. On January 7, 2003, Dr. Marshall opined the claimant reached maximum medical improvement (MMI) for the lumbar injury. The claimant requested a DIME on the issues of MMI and permanent impairment. Specifically, the claimant requested an evaluation of impairment caused by headaches and injuries to the neck and back.
In March 2003 Dr. Marshall prescribed medications of Effexor and Welbutrin in response to the claimant’s complaints of depression and anxiety. Although Dr. Marshall opined the claimant’s depression was not related to the industrial injury, he admitted a lack of expertise in the area of psychology. Therefore, Dr. Marshall also referred the claimant to Dr. Leopoldt for further evaluation. On May 1, 2003, Dr. Leopoldt, diagnosed a major depressive disorder secondary to the industrial injury.
The DIME was performed in July 2003. The DIME physician agreed with Dr. Marshall that the claimant’s headaches and cervical condition were unrelated to the industrial injury. The DIME did not expressly evaluate the claimant’s psychiatric condition.
The claimant applied for a hearing to overcome the DIME and argued the DIME physician erroneously failed to attribute the depression to the industrial injury. The respondents argued the claimant “waived” litigation of whether the depression was work-related by failing to request an evaluation of mental impairment on the DIME application. The ALJ agreed and also found the claimant failed to overcome the DIME concerning the cause of the headaches and cervical pain.
On review, we concluded the ALJ erroneously found the DIME application listing of body parts to be evaluated constituted a knowing waiver of the claimant’s right to litigate the accuracy of the DIME physician’s opinions on the cause of all other conditions or impairment. Consequently, we remanded the matter to the ALJ to determine whether the claimant sustained his burden to overcome the DIME physician’s finding that there was no compensable psychological impairment.
On remand the ALJ acknowledged the record contains some evidence in the claimant’s testimony and the medical reports of Dr. Leopoldt which, would support a finding that the claimant’s psychological condition is work-related. However, the ALJ found no other physician besides Dr. Leopoldt linked the claimant’s psychological condition to the industrial injury. The ALJ also found that Dr. Leopoldt did not analyze or discuss the cause of claimant’s psychological symptoms in his medical records after identifying stressors in the claimant’s life unrelated to the industrial injury that could have caused the claimant’s depressive symptoms. Under these circumstances, the ALJ determined the evidence did not rise to the level of “clear and convincing” evidence that the DIME physician erroneously failed to attribute the claimant’s depression to the industrial injury. Therefore, on April 18, 2005, the ALJ denied the claim for permanent partial disability benefits based on mental impairment.
On review of the April 18 order, the claimant contends the DIME physician deviated from the rating protocols required by the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides), in failing to perform a psychological evaluation. Under these circumstances, the claimant argues his testimony that the depression began 3 to 6 months after the 2001 industrial injury (Tr. p. 29), and the opinions of Dr. Leopoldt were sufficient to overcome the DIME. We reject the claimant’s arguments.
It is well established that the DIME physician’s medical impairment rating is binding unless overcome by “clear and convincing evidence.” Section 8-42-107(8)(c), C.R.S. 2004; Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). “Clear and convincing evidence” is evidence which proves that it is “highly probable” the DIME physician’s opinion is incorrect. Metro Moving Storage Co. v. Gussert, supra.
The Workers’ Compensation Act requires that the DIME physician’s impairment rating be conducted in accordance with the AMA Guides. Section 8-42-101(3.7). C.R.S. 2004. The ALJ may consider a technical deviation from the AMA Guides in determining the weight to be given the DIME physician’s findings but such deviation does not compel automatic rejection of the DIME opinion. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003); Metro Moving Storage Co. v. Gussert, supra.
Further, the DIME process requires physicians to determine all losses caused by the industrial injury. Consequently, the courts have held that the DIME physician’s determination that an impairment is or is not caused by the industrial injury is also subject to the clear and convincing evidence standard. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002); Qual-Med, Inc. v. Industrial Claim Appeals Office, supra.
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. Accordingly, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004. 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. Where, as here, the medical evidence is subject to conflicting inferences, it is the ALJ’s sole prerogative to resolve the conflict. Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998). Thus, the scope of our review is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert, 914 P.2d at 415.
Initially, we reject the claimant’s contention the ALJ failed to make adequate findings concerning why the DIME failed to discuss the claimant’s psychological condition. When read in its entirety, the ALJ’s order reflects his finding that the DIME physician did not evaluate the claimant’s psychological condition because the claimant did not assert any work-related mental impairment on the DIME application. Moreover, the ALJ apparently inferred from the omission that the DIME did not independently find any work-related psychological impairment. (See
Conclusion of Law 3).
The claimant’s arguments notwithstanding, the DIME is consistent with the medical records of Dr. Marshall and Dr. Sacha, who performed an independent medical examination. Although Dr. Sacha noted the claimant’s presentation of mild anxiety and depression, Dr. Sacha testified that he did not attempt to evaluate the claimant’s psychological condition. (Respondents’ Hearing Submission R; Sacha depo. p. 23). Nevertheless, Dr. Sacha stated that based on the claimant’s medical history, the mechanism of the injury and Dr. Sacha’s physical examination, he agreed with Dr. Marshall that the claimant’s depression, and anger management were not related to the industrial injury. (Sacha Depo. pp. 20, 23). The DIME is also consistent with the May 6, 2003 medical report of Dr. Tice and the medical reports of Dr. Nystrom (Claimant’s Exhibits 6). Thus, there is substantial evidence that the DIME did not err in failing to attribute the claimant’s depression to the industrial injury.
Insofar as the claimant contends the DIME physician’s opinion has no probative value because the DIME physician failed to comply with the AMA Guides, we agree with the respondents that the argument was not raised by the claimant before the ALJ. (See Claimant’s Post Hearing Position Statement, August 9, 2004). Johnson v. Industrial Commission, 761 P.2d 1140
(Colo. 1988) Robbolino v. Fischer-White Contractors, 738 P.2d 70
(Colo.App. 1987). Therefore, we shall not consider the argument for the first time on appeal. Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
In any case, it is arguable that Dr. Leopoldt did not comply with the AMA Guides or other rating protocols in evaluating the claimant’s psychological condition. Further, the ALJ reasonably inferred that Dr. Leopoldt did not explain his reasoning in the diagnosis of a “Major Depressive Disorder due to chronic pain and disability arising from on-the-job injury.” (See Claimant’s Hearing Exhibits 2). Neither did Dr. Leopoldt explain how, if at all, the claimant’s child custody conflicts contributed to the depression. Under these circumstances, we cannot say the ALJ erred in finding that Dr. Leopoldt’s opinions did not rise to clear and convincing evidence to overcome the DIME physician’s implicit determination that there was no compensable mental impairment.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 18, 2005, is affirmed.
Justin W. Gray, Grand Junction, CO, Dunning Construction, Grand Junction, CO, Legal Department, Pinnacol Assurance — Interagency Mail, Luke Brennan, Esq., Grand Junction, CO, (For Claimant).
Eliot Wiener, Esq., Denver, CO, (For Respondents).