W.C. No. 4-362-073Industrial Claim Appeals Office.
April 16, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which awarded permanent partial disability benefits based on medical impairment of 24 percent of the whole person. The claimant contends the evidence compelled the ALJ to find the rating of the Division independent medical examination (DIME) physician was overcome by clear and convincing evidence. We affirm.
The claimant sustained a compensable neck injury on July 14, 1997, and underwent two surgeries to fuse the C6-7 vertebrae. The treating physician placed the claimant at maximum medical improvement (MMI) on October 30, 1998, with a 26 percent whole person impairment rating. This rating included 19 percent impairment for reduced range of motion of the cervical spine.
The claimant underwent a DIME on the issue of medical impairment. The DIME physician opined the claimant had a 24 percent whole person impairment rating, including 13 percent impairment for reduced range of motion of the cervical spine. The range of motion measurements were conducted by a physical therapist at the request of the DIME physician.
The claimant presented the testimony of Dr. Ryan, who opined the DIME physician deviated from the rating protocols of the American Medical Association Guides to the Evaluation Permanent Impairment, Third Edition (Revised) (AMA Guides), because she did not personally perform the range of motion measurements, nor did she supervise the physical therapist’s measurements. Dr. Ryan assigned a 27 percent whole person impairment rating, of which 15 percent was based on reduced range of motion of the cervical spine.
The ALJ found that, although the DIME physician “did not strictly comply with directives of the Division of Worker’s Compensation” because she did not supervise the physical therapist’s range of motion measurements, that fact did not prove by clear and convincing evidence that the DIME physician’s impairment rating was incorrect. Instead, the ALJ found the DIME physician’s range of motion measurements “did not significantly differ from those” of other rating physicians, including Dr. Ryan. Further, the ALJ concluded that “mere variability in the actual range of motion measurements does not carry claimant’s burden of proof.” The ALJ also found the claimant’s testimony that the physical therapist did not use a “measuring device” when conducting the measurements was not credible or persuasive.
On review, the claimant contends the record compelled the ALJ to find he overcame the DIME physician’s rating by clear and convincing evidence. The claimant argues the DIME physician’s failure personally to perform the range of motion measurements, or personally supervise the physical therapist, casts “substantial doubt” on the impairment rating. The claimant also asserts there are no indicia of reliability to support the range of motion measurements relied upon by the DIME physician. We are not persuaded.
Section 8-42-107(8)(c), C.R.S. 2000, provides that the DIME physician’s finding of medical impairment “shall be overcome only by clear and convincing evidence.” Thus, the party challenging the DIME physician’s impairment rating bears the burden of proof. Lambert and Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656 (Colo.App. 1998). Under this statute, the question of whether the DIME physician properly applied the AMA Guides in determining the impairment rating, and whether the rating itself was overcome by clear and convincing evidence, are issues of fact to be determined by the ALJ. McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo.App. 1999); Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). We have previously held that not every deviation from the rating protocols of the AMA Guides requires the ALJ to find the DIME physician’s rating has been overcome by clear and convincing evidence. Rather, the ALJ must consider the deviation in the context of all other relevant evidence, and determine whether the deviation casts substantial doubt on the overall validity of the rating. Sutton v. Alpen Construction, W.C. No. 4-225-415
(April 1, 1997), aff’d., Sutton v. Industrial Claim Appeals Office,
(Colo.App. No. 97CA0711, November 13, 1997) (not selected for publication).
Because the issues are factual in nature, we must uphold the ALJ’s determinations if supported by substantial evidence of the record. Section 8-43-301(8), C.R.S. 2000. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the record. Metro Moving and Storage Co. v. Gussert, supra. In rendering the decision, the ALJ need not make findings of fact concerning all of the testimony, so long as he enters findings concerning the evidence which he finds dispositive of the issues. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Neither is the ALJ required to explain credibility determinations. Wells v. Del Norte School District C-7, 753 P.2d 770 (Colo.App. 1987).
The record supports the ALJ’s finding that the claimant failed to overcome the DIME physician’s impairment rating by clear and convincing evidence. Although the DIME physician deviated from the rating protocols of the AMA Guides by failing personally to supervise the range of motion measurements, the ALJ was not persuaded that this deviation proved the overall rating was invalid. To the contrary, the ALJ compared the range of motion measurements taken by the physical therapist to those taken by other physicians who rated the claimant. As the ALJ found, there are variations between the measurements of the physical therapist and the physicians, and between the measurements of the physicians themselves. However, the record supports the ALJ’s finding that the variations were relatively minor, and did not produce wide differences in the range of motion impairment ratings. Consequently, the ALJ reasonably concluded the claimant’s evidence was not of sufficient weight to cast substantial doubt on the DIME physician’s impairment rating.
The claimant also asserts the ALJ “did not address the testimony of Dr. Ryan.” Therefore, the claimant reasons the findings are not sufficient to support appellate review. However, the ALJ’s order implicitly credits Dr. Ryan’s opinion that the DIME physician deviated from the AMA Guides by failing to supervise the range of motion measurements. (Finding of Fact 14 at p. 4). The ALJ merely concluded that this deviation was not sufficient to establish that the DIME physician’s rating was overcome.
The claimant argues the ALJ erred by not explaining why he discredited the claimant’s testimony concerning the physical therapist’s alleged failure to use a measuring device. However, the ALJ was not required to explain this credibility determination. In any event, we infer the ALJ found the claimant’s testimony incredible because the ALJ did not believe the physical therapist could have arrived at range of motion measurements so closely aligned with those of other examiners without using a measuring device.
Insofar as the claimant makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 4, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. 2000.
Copies of this decision were mailed April 16, 2001 to the following parties:
Robert Lupien, 2600 S. Parker Rd., #2-220, Aurora, CO 80014
Liberty Mutual Insurance Company, 13111 E. Briarwood Ave., Englewood, CO 80112
Rebecca Greben, IME Coordinator, Tower 2, #640, Division of Workers’ Compensation — Interagency Mail
Kerry L. Sullivan, Esq., 1325 S. Colorado Blvd., #405, Denver, CO 80222 (For Claimant)
Scott M. Busser, Esq., 300 S. Jackson St., #570, Denver, CO 80209 (For Respondent)
By: L. Epperson