W.C. No. 4-693-581.Industrial Claim Appeals Office.
June 4, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated January 15, 2009, that determined the respondents had overcome the Division-sponsored independent medical examination (DIME) physician’s opinion on impairment and that ordered the insurer to pay the claimant permanent partial disability benefits based upon an impairment rating of ten percent of the whole person. We affirm.
The ALJ entered the following pertinent findings of fact. The claimant sustained an admitted injury to his right shoulder on July 11, 2006. The claimant’s right shoulder condition was diagnosed as Chronic Regional Pain Syndrome (CRPS). CRPS is a condition involving a disorder of the nervous system. The DIME physician rated the claimant’s impairment as 27 percent of the whole person. The respondents applied for a hearing to overcome the DIME physician’s rating and the claimant stipulated it was highly probable that the DIME physician erred in rating the claimant’s CRPS. Therefore, the ALJ ruled that the respondents had overcome the DIME physician’s impairment rating by clear and convincing evidence.
Dr. Raschbacher rated the claimant’s impairment at ten percent of the whole person based upon spinal cord impairment, under Table 1, page 109 of the American Medical Association Guidelines to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides). Dr. Finn agreed with Dr. Raschbacher that the claimant’s impairment would fall under the spinal cord injury section of the AMA
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Guides. However, Dr. Finn rated the claimant’s impairment as 30 percent of the whole person.
The ALJ found that the respondents showed it more probably true than not that Dr. Rasachbacher’s ten percent whole person rating more accurately assessed the claimant’s dysfunction than the 30 percent rating of Dr. Finn. Therefore, the ALJ concluded that the insurer should pay the claimant permanent partial disability benefits based upon impairment of ten percent of the whole person. The claimant brings this appeal.
Having found that the respondents overcame the impairment rating of the DIME physician the question became what impairment rating was appropriate under the circumstances. See DeLeon v. Whole Foods Market, Inc., W.C. No. 4-600-477 (November 16, 2006). The claimant’s correct medical impairment rating becomes a question of fact for the ALJ’s resolution based on a preponderance of the evidence. Garlets v. Memorial Hospital, W.C. No. 4-336-566 (September 5, 2001). The pertinent issue is whether the ALJ erred or abused his discretion in selecting the impairment rating that he ultimately awarded. Ortiz v. Service Experts, Inc., W.C. No. 4-657-974 (January 22, 2009).
The claimant’s physical impairment must be based on the AMA Guides. Section 8-42-110(3.7), C.R.S. 2008; McLane Western, Inc. v. Industrial Claim Appeals Office, 996 P.2d 263, 265 (Colo.App. 1999). Here, the ALJ credited Dr. Rasachbacher’s testimony that impairment resulting from the effects of the claimant’s disorder should be valued under Table 1, Section A, of the AMA Guides. Table 1 provides the following values for assessing impairment of the use of the dominate upper extremity:
(Category 1) Some difficulty with digital dexterity (5-10)
(Category 2) Has no digital dexterity (15-25)
(Category 3) Has difficulty with self-care (30-35)
(Category 4) Cannot carry out self care (40-60)
AMA Guides at 109, Exhibit B at 6.
In arriving at his ten percent whole person impairment rating Dr. Rasachbacher evaluated the claimant’s impairment in providing self-care under the first category based upon the effect of some difficulty with digital dexterity. The ALJ found with record support that Dr. Raschbacher testified that the claimant’s medical records document that the claimant retained some use of his fingers for digital dexterity. Tr. at 21-22. The ALJ found by the claimant’s own testimony that he is capable of working in a sedentary level and can use the computer, which supports Dr. Raschbacher’s opinion that the claimant retains some digital dexterity in his right hand. Tr. at 61. Medical records showed the claimant had been enrolled in college and had used a computer for on-line classes.
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Exhibit D at 66; Dr. Raschbacher found these activities indicated that the claimant retained some digital dexterity in his right hand. Tr. at 21-22, 25; Exhibit B at 7.
The ALJ found that Dr. Raschbacher persuasively explained that the categories under Table 1 are progressive in describing dysfunction in self-care, such that categories with higher values necessarily include dysfunction described in categories with lower values. Dr. Rasachbacher stated that the third category for “difficulty with self-care” logically included the second category i.e., difficulty with self-care and lack of digital dexterity. Dr. Rasachbacher testified that Dr. Finn’s rating of 30 percent for difficulty with self-care was incorrect under the AMA Guides, unless claimant also had no digital dexterity. The ALJ found that Dr. Finn failed to give a persuasive rationale for rating the claimant’s dysfunction in providing self-care under the third category of Table 1. In contrast, the ALJ found that the evidence demonstrated that the claimant retained some digital dexterity for providing self-care and thus found the medical opinion of Dr. Raschbacher more persuasive than Dr. Finn’s.
Because the issue of the extent of the claimant’s permanent partial disability is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999).
In our view, Dr. Raschbacher’s interpretation of the particular provision of the AMA Guides at issue is reasonable. Further, the ALJ’s findings regarding the dysfunction in claimant’s self-care is supported by substantial evidence. Therefore, we are not persuaded to interfere with the ALJ’s exercise of discretion in crediting Dr. Raschbacher’s interpretation of the AMA Guides.
The claimant argues that the ALJ and Dr. Raschbacher ignored the Division of Workers’ Compensation’s own guidelines. We note that the regulatory interpretations of the Director of the Division of Workers’ Compensation are generally entitled to a degree of deference. See Lenox v. United Airlines, W.C. No. 4-616-469 (June 2, 2006) (affording “great weight” to director’s interpretive bulletin on AMA Guides).
The claimant cites to the “Neurological Impairment Section” of the Division guidelines that provides a table for rating upper extremity disorders. These guidelines provide a table, again with four categories, which generally track the four categories contained in the AMA Guide’s Table 1 described above. There are slight differences used in the language in the Division’s guidelines when compared with the AMA Guide’s Table 1. However, in our view, these differences do not compel the conclusion that Dr.
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Rasachbacher’s opinion on impairment was incorrect or that the ALJ erred in relying on his opinion in determining the claimant’s permanent impairment rating.
Further, it does not appear that the claimant raised the argument involving the Division’s guidelines before the ALJ and therefore it has not been preserved for our review. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987); Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
The outcome of the case depended heavily on the opinions of medical experts. The ALJ credited the medical opinion of Dr. Raschbacher as more persuasive than Dr. Finn’s opinion. In particular, we note that the weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). It was the ALJ’s prerogative to weigh the evidence, and that the ALJ might have reached a contrary conclusion is immaterial on review. Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo.App. 1999).
IT IS THEREFORE ORDERED that the ALJ’s order issued January 15, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
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JERRY J LACLAY, 918 N MURRAY BLVD #205, COLORADO SPRINGS, CO, (Claimant).
TRAVELERS INSURANCE COMPANY, Attn: MARCHELLE ROBINSON, DENVER, CO, (Insurer).
LAW OFFICES OF FRANKLIN D AZAR ASSOCIATES, PC, Attn: JOHN M CONNELL, ESQ., AURORA, CO, (For Claimant).
LAW OFFICE OF HALL EVANS, LLC, Attn: DOUGLAS KOTAREK, ESQ., DENVER, CO, (For Respondents).
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