W.C. No. 4-631-447.Industrial Claim Appeals Office.
November 13, 2006.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Connick (ALJ) dated May 4, 2006, that found the claimant failed to overcome the permanent impairment rating of a Division-sponsored independent medical examination (DIME) physician. We affirm.
This matter went to hearing on the claimant’s challenge to the DIME and on issues of temporary disability benefits, ongoing medical benefits, and average weekly wage. The case was transferred to the ALJ after the hearing and she determined, among other things, that the claimant failed to overcome by clear and convincing evidence the DIME physician’s zero percent impairment rating. Several of the ALJ’s findings in support of her decision are summarized as follows. The claimant sustained an admitted back injury on October 14, 2004 and received medical treatment. He eventually returned to full duty, but continued to experience pain and was released to modified duty. The respondents secured a surveillance videotape that showed claimant lifting furniture, including a couch that he lifted overhead with another man, during late February 2005. At the time, the claimant was subject to a lifting restriction of ten pounds. Two treating physicians reviewed the tape and each opined that the claimant was at maximum medical improvement as of April 18, 2005, with no permanent impairment. At least one of the treating physicians further opined that the claimant needed no work restrictions. The respondent insurer filed a final admission of liability, accordingly.
The claimant sought a DIME, which Dr. Hompland performed. Dr. Hompland calculated a nine percent whole person impairment under the AMA Guides to the Evaluation of Permanent Impairment (AMA Guides), but assessed a zero percent impairment rating based upon several factors including his observations of the claimant in the videotape, the claimant’s history, the physical examination of the claimant, and the physician’s clinical judgment. Dr. Hompland also contacted a furniture store and was advised that the average couch weighs between 200-300 pounds, and the physician “drew the inference” that the claimant demonstrated his ability to lift about 150 pounds easily over his head. Findings of Fact, Conclusions of Law, and Order (Order) at 4, ¶ 15.
The ALJ rejected the claimant’s challenges to the reliability of the videotape and concluded that the DIME physician could properly consider the tape in developing his opinion. The ALJ considered the claimant’s additional contention that the DIME physician erroneously relied on “outside information” concerning average couch weights. Order at 7. She concluded that case law supported the use of such information and, also, that to do so did not violate the AMA Guides. The ALJ further concluded that the DIME physician’s reliance on the furniture company information was not dispositive of whether the claimant overcame Dr. Hompland’s impairment rating since it was but one piece of evidence, which evidence included the claimant’s ten-pound lifting restriction.
On appeal, the claimant argues that the DIME physician’s communication with a furniture store and his acquisition of information concerning average couch weights violated W.C. Rule of Procedure 11-2(K), 7 Code Colo. Reg. 1101-3. However, our review of the record does not indicate that this argument was presented to the ALJ for her consideration. Issues not raised before the ALJ may not be considered for the first time on appeal. Kuziel v. Pet Fair, Inc., 948 P.2d 103 (Colo.App. 1997); Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
We understand the claimant to also be arguing that the DIME physician’s impairment rating should be interpreted to award him a nine percent whole person permanent impairment rating because Dr. Hompland’s zero percent permanent impairment rating contravenes the AMA Guides. According to the claimant, Dr. Hompland violated the AMA Guides by obtaining information from a furniture store about couch weights, because the physician effectively “went outside of the IME process to obtain information and apply that information in his assessment of impairment.” Claimant’s Brief at 8. We disagree.
The claimant refers to the glossary of terminology contained in Appendix A of the AMA Guides, which explains that an “evaluation or rating impairment” means “an assessment of data collected during a clinical evaluation.” AMA Guides, Appendix A at 244. However, we do not find it necessary to circumscribe the limits of data collection under the AMA Guides to dispose of the claimant’s assertions. Information considered by DIME physicians in evaluating their impairment ratings has included surveillance videotapes. See Andrade v. Industrial Claim Appeals Office, 121 P.3d 328, 331 (Colo.App. 2005) (ALJ properly considered DIME physician’s deposition testimony revising original opinion after viewing surveillance videotape of claimant performing activities inconsistent with reported symptoms and disabilities) Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082, 1083-84 (Colo.App. 2002) (DIME physician retracted nine percent impairment rating after viewing videotape showing claimant performing duties inconsistent with reported symptoms and disability).
Moreover, deviations from the AMA Guides do not necessarily require the conclusion that a DIME rating is incorrect. Instead, 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, 914 P.2d 411 (Colo.App. 1995); Valasquez v. UPS,
W.C. NO. 4-573-459 (April 13, 2006). The ALJ expressly considered the ten-pound lifting restriction imposed upon the claimant, together with the claimant’s estimate of couch weight of 70 to 80 pounds (apparently inferred from the claimant’s report of lifting 35 to 40 pounds of the couch’s weight) when she considered Dr. Hompland’s evaluation of the claimant’s lifting ability as demonstrated in the videotape. Order at 4, ¶¶ 15-16 and at 8.
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. 2006. 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. The record contains substantial evidence supporting a zero percent impairment rating by the DIME physician. For instance, Dr. Hompland’s impairment rating is consistent with the ratings of two treating physicians See Exhibits K-M.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 4, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
Juan Francisco Gurrola, Henderson, CO, Split Rail Fence Company, Littleton, CO, Ruegsegger, Simons, Smith Stern, LLC, Connie K. Hulst, Esq., Denver, CO, (For Respondents)
The Frickey Law Firm, Maria De Leon, Esq., Lakewood, CO, (For Claimant)
Pinnacol Assurance, Harvey D. Flewelling, Esq., Denver, CO,