W.C. No. 4-498-415Industrial Claim Appeals Office.
March 25, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which determined the respondents overcame the impairment rating issued by the Division-sponsored independent medical examination (DIME) physician. The claimant argues the evidence does not support the ALJ’s finding that the claimant did not have a specific disorder of the spine. The claimant further contends the ALJ erred because he did not award ongoing medical benefits. We affirm.
The claimant sustained a compensable low back injury on March 12, 2001, and a second injury to her back on April 2, 2001. These injuries have been treated as the same injury for purposes of determining maximum medical improvement (MMI) and the degree of medical impairment.
The treating physician diagnosed cervical, thoracic, and lumbar strains. The claimant was placed at MMI for the cervical condition on May 21, 2001, at which time the treating physician observed the claimant to have a full range of cervical motion. The claimant was placed at MMI for the thoracic and lumbar injuries on July 2, 2001. At that time the treating physician observed the claimant to have essentially normal range of motion. The treating physician assessed no permanent impairment.
The claimant underwent a DIME in November 2001. The DIME physician assigned a 32 percent whole person impairment rating based on specific disorders and reduced range of motion in the cervical, thoracic, and lumbar spine. The claimant reported to the DIME physician that she was significantly limited in her ability to perform her work as a prep cook.
The respondents sought a hearing to overcome the DIME physician’s impairment rating. The ALJ credited the testimony of the treating physician and found the claimant did not sustain any ratable specific disorder under Table 53 of the AMA Guides. In support, the ALJ found that the treating physician documented only two months of cervical pain and rigidity, and only four months of lumbar and thoracic pain and rigidity, before placing the claimant at MMI. The ALJ found the DIME physician’s opinion was not credible because it was predicated on the claimant’s history of inability to perform work without significant limitations. However, the ALJ found this history was inaccurate as shown by the credible testimony of the claimant’s supervisor. Consequently, the ALJ adopted the treating physician’s zero percent impairment rating.
I.
Relying on McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo.App. 1999), the claimant first contends the ALJ erroneously relied on the treating physician’s finding that the claimant had less than two months of cervical pain and rigidity and less than four months of thoracic and lumbar pain and rigidity when the claimant was placed at MMI in July 2001. We perceive no error.
Table 53 of the AMA Guides permits rating of specific disorders of the cervical, thoracic, and lumbar spine if the injured person has a soft-tissue lesion which is “unoperated, with medically documented injury and six months of medically documented pain and rigidity with or without muscle spasm, associated with none-to-minimal degenerative changes on structural tests.” In McLane Western the court held that the AMA Guides do not require that the pain and rigidity occur before MMI in order to award a rating under Table 53.
However, we do not read the ALJ’s order as finding the claimant was not entitled to a rating under Table 53 simply because the claimant was placed at MMI before six months elapsed. Rather, we understand the ALJ to have found that, contrary to the DIME physician’s opinion, and in accordance with the treating physician’s opinion, the claimant’s records do not reflect rigidity of six months duration. Rather, the ALJ was persuaded by the treating physician’s observations that the claimant was experiencing no rigidity by the time he was placed at MMI. To the contrary the claimant had a full range of motion in all of the spinal regions.
The claimant also argues the ALJ erred in finding the respondents overcame the DIME physician’s rating by clear and convincing evidence. The claimant asserts that even the treating physician agreed the claimant had ratable impairment under Table 53 by the time the claimant was examined by the DIME physician. The claimant also asserts that range of motion and Table 53 impairment are different issues, and that the ALJ improperly considered the claimant’s ability to work. Finally, the claimant asserts the ALJ should not have placed greater reliance on the treating physician’s opinion because the treating physician examined the claimant more often than the DIME physician. We perceive no error.
Section 8-42-107(8)(c), C.R.S. 2002, provides that impairment ratings must be determined in accordance with the AMA Guides, and the DIME physician’s finding concerning the claimant’s impairment rating “shall be overcome only by clear and convincing evidence.” The questions of whether the DIME physician properly applied the AMA Guides, and whether the rating itself has been overcome by clear and convincing evidence, are issues of fact for determination by the ALJ. McLane Western Inc. v. Industrial Claim Appeals Office, supra. Because these issues are factual, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. 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. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
As noted in Wackenhut Corp. v. Industrial Claim Appeals Office, 17 P.3d 202 (Colo.App. 2000), the AMA Guides require the rating physician to conduct a clinical and historical evaluation of the claimant’s health status and compare the results to the rating criteria contained in the AMA Guides. Thus, a rating physician is not required to award impairment under Table 53 merely because the claimant reports pain and rigidity, or merely because the claimant’s medical records document reports of pain and rigidity of six months duration. To the contrary, a physician may conclude the claimant’s overall clinical picture is inconsistent with impairment under Table 53 and decline to assess such impairment. See Villareal v. K-Mart, W.C. No. 4-509-526 (March 13, 2003).
Here, the treating physician declined to assess any impairment under Table 53 because the claimant exhibited full range of motion in all spinal regions despite reports of ongoing pain. Under these circumstances, the treating physician was not convinced the claimant was suffering from any rigidity, especially because her records documented a history of non-physiologic pain complaints. Moreover, the claimant advised the treating physician she was able to perform her work as a prep cook without restriction. (Tr. Pp. 49-51). In contrast, the ALJ found the claimant provided a misleading history to the DIME physician concerning the claimant’s ability to work, and this history influenced the DIME physician’s rating. Under these circumstances, it was for the ALJ to assess the relative weight of the two experts’ opinions, and we cannot say the ALJ erred in finding the treating physician’s opinion is sufficiently persuasive to overcome the DIME physician’s rating. Metro Moving Storage Co. v. Gussert, supra.
It is true the treating physician’s opinion contains some inconsistencies and is subject to various interpretations. However, it was for the ALJ to resolve the inconsistencies and credit that portion of the testimony which he found credible, if any. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
It follows that the ALJ did not err in considering the testimony concerning the claimant’s ability to perform her work. The issue of whether the claimant’s clinical picture supported impairment under Table 53 implicated her ability to perform physical functions, including work. This is not a case in which the ALJ confused the concepts of impairment and disability, as the claimant contends.
Neither did the ALJ err in taking notice that the claimant’s ability to move her neck was significantly more limited when asked to move it during cross-examination than it was when she did not realize she was being observed. The ALJ was free to evaluate the claimant’s courtroom demeanor as an element of credibility. People v. Sandoval, 709 P.2d 90 (Colo.App. 1985).
Finally, the ALJ did not err in considering the number of times the treating physician examined the claimant as opposed to the single DIME examination. It is certainly true that the DIME physician is presumed to be unbiased and the DIME physician’s rating is accorded substantial evidentiary weight. However, the ALJ ultimately decides the weight of the evidence when determining whether the DIME physician’s rating has been overcome. Egan v. Industrial Commission, 971 P.2d 664 (Colo.App. 1998). Where, as here, the claimant’s medical history and credibility play an important role in determining whether a rating is appropriate, the ALJ may consider the number of examinations when evaluating the weight of a physician’s opinion. Cf. Cameron v. Ultamar Diamond Shamrock,
W.C. No. 4-406-168 (April 1, 2002) (ALJ could consider the amount of time examining physician and DIME physician spent with the claimant when deciding whether DIME physician’s mental impairment rating was overcome).
II.
The claimant also contends he is entitled to ongoing medical benefits after maximum medical improvement. It is unclear from this record whether the issue was presented to the ALJ or not. In any event, the ALJ reserved issues not decided. Under these circumstances we understand the ALJ to have reserved the issue of future medical benefits. Consequently, the matter may be submitted to the ALJ for determination by requesting a hearing.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 6, 2002, 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,CO 80203, by filing a petition for review with the Court, within twenty(20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party mustserve a copy of the petition upon all other parties, including theIndustrial Claim Appeals Office, which may be served by mail at 1515Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed March 25, 2003 to the following parties:
Elsa Marquez, 9825 E. Jirard Ave., Bldg. 21, Apt. 318, Denver, CO 80032
Inverness Hotel Golf Club, 200 Inverness Drive West, Englewood, CO 80112
Ragn Buchanan, Royal SunAlliance, P. O. Box 6506, Englewood, CO 80155-6506
Janie C. Castaneda, Esq., 1120 Lincoln St., #703, Denver, CO 80203 (For Claimant)
Christopher Condit, Esq., 625 E. 16th Ave., #100, Denver, CO 80203 (For Respondents)
By: A. Hurtado