W.C. No. 4-694-444.Industrial Claim Appeals Office.
August 27, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) dated April 4, 2008 that denied and dismissed her claim for permanent partial disability benefits. We affirm.
The claimant was injured in an admitted injury on July 21, 2006. The authorized treating physician placed the claimant at maximum medical improvement (MMI) with no impairment and no restrictions on her physical activities and the respondents filed a final admission of liability. The claimant objected and requested a Division-sponsored independent medical examination (DIME). In the initial DIME, the DIME physician concluded that the claimant was not at MMI. Respondents challenged the opinions of the DIME physician with regard to the issue of MMI. ALJ Friend concluded that it was highly probable that the DIME physician’s opinion concerning MMI was incorrect. The claimant was referred back to the DIME physician for a follow-up DIME. The DIME physician gave the claimant a rating of impairment upon the diagnosis of thoracic outlet syndrome measuring the impairment at 11 percent of the upper extremity. The DIME physician also gave the claimant a cervical impairment rating based upon a four percent specific disorder rating under Table 53 of the American Medical Association Guidelines to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides) and a six percent rating for range of motion. The respondents challenged these ratings and the ALJ found that the respondents had proven that it was highly probable and free from serious and substantial doubt that the DIME physician’s opinions concerning permanent impairment were erroneous. The ALJ denied and dismissed all claims for permanent partial disability benefits.
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On appeal, the claimant argues that the ALJ’s ruling that the respondents had overcome the DIME physician’s opinion on medical impairment for the neck was not supported by substantial evidence in the record. We disagree.
Section 8-42-107(8)(c), C.R.S. 2007, provides that the DIME physician’s finding of medical impairment is binding unless overcome by clear and convincing evidence. “Clear and convincing” evidence has been defined as evidence which demonstrates that it is “highly probable” that the DIME physician’s rating is incorrect. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Therefore, the standard of review remains whether the ALJ’s findings of fact are supported by substantial evidence in the record. Id. This standard of review is deferential and the scope of our review is “exceedingly narrow.” Metro Moving Storage Co., 914 P.2d at 415.
Under this standard of review, it is the ALJ’s sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. We may not substitute our judgment for that of the ALJ regarding credibility matters unless there is such hard, certain evidence contradicting the ALJ’s determination that it would be error as a matter of law. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). The existence of evidence in the record which, if credited, might permit a contrary result also affords no basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). Moreover, the ALJ’s order is sufficient for purposes of review if the legal and factual bases of the order are apparent from the findings of fact and conclusions of law. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Furthermore, inconsistencies, contradictory evidence, and incomplete testimony are not uncommon in workers’ compensation claims and it was the ALJ’s sole prerogative as the fact finder to resolve any inconsistencies in the testimony. See West v. Aranda, No. 92CA1576 (Colo.App., July 1, 1993) (not selected for publication).
The claimant contends that the findings of the ALJ made in Finding of Fact No. 29, were not supported by the evidence. We are not persuaded. In that section of his order the ALJ made the following findings of fact. The second DIME report did not reflect that the DME physician physically examined the claimant’s cervical spine, except with reference to his range of motion testing. The DIME physician testified that palpitation of the spine was not necessary and was immaterial to an evaluation of impairment.
In our review of the second DIME report, we see no specific mention of the results of a physical examination of the cervical spine. Exhibit 6. Further, the DIME physician
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did testify that the palpitation of the spine was immaterial. Mechanic Depo. at 43. In our view, there was ample evidence to support in the record for these findings.
Further we are not convinced by the claimant’s arguments that it is not a plausible inference that the DIME physician did not physically examine the claimant’s cervical spine merely because it was not stated in the second DIME report. In our view, this is a plausible inference. Although the claimant cites to additional evidence to support the inference she desired the ALJ to make, the existence of evidence which, if credited, might support a determination contrary to that reached by the ALJ does not afford us grounds to grant appellate relief. Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d. 28 (1963).
The claimant next argues that the findings of the ALJ made in Finding of Fact No. 30 were not supported by the evidence. In that part of his order the ALJ made the following findings of fact. The second DIME report reflects no subjective complaints of neck pain on the part of the patient. The DIME physician testified that no complain of pain was needed in order to justify an impairment rating. In out opinion there is ample support in the record for these findings.
We note that in our review of the second DIME report, we see no description of any subjective complain of neck pain. Exhibit 6. Further, the DIME physician testified that his second report did not have to contain her complaints in order to determine her medical impairment. Mechanic Depo. at 49. The claimant cites evidence explaining the actions of the DIME physician, but the ALJ was not bound to credit this evidence nor draw the inferences from it that the claimant suggests.
The claimant next argues that the findings of the ALJ made in Finding of Fact No. 37 were not supported by the evidence. In that portion of his order the ALJ made the following findings of fact. The second DIME report does not reflect any physical examination of the cervical spine, except for range of motion testing. Indeed, the DIME physician failed to satisfy his own criteria for rating an impairment of the cervical spine. Under those circumstances, it would be inappropriate to render an impairment rating, according to Dr. Brodie. The DIME physician’s rating of cervical impairment was not justified by his report and was not in accordance with the level II accreditation curriculum. Therefore, the ALJ found that it was highly probable that the DIME physician was in error in this regard. It is again our opinion that there is substantial evidence in the record to support these findings.
The DIME physician gave the claimant a cervical impairment rating based upon a four percent specific disorder rating under Table 53 of the AMA Guides. Table 53 provides a four percent specific whole person impairment for an unoperated cervical
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intervertebral disc or soft-tissue lesion, with medically documented injury and a minimum of six months of medically documented pain and rigidity with or without muscle spasm, associated with none-to minimal degenerative changes on structural tests. Exhibit BB.
The DIME physician admitted that a claimant would not be eligible for an impairment rating under the AMA Guides if the specific criteria of Table 53 were not met. Mechanic Depo. at 29. Dr. Bodie testified that the prerequisites of pain and rigidity were not really in the DIME’s report. The ALJ found, with record support, that the DIME physician failed to satisfy this criteria for rating an impairment of the cervical spine. Dr. Brodie testified that the DIME physician did not really examine the cervical spine, other than doing a range of motion test. Tr. at 26-27. Dr. Bodie testified that so many, if not all, of the necessary components under the AMA guides were not documented and that the DIME physician admitted that he deliberately did not document the necessary components. Tr. at 27. Therefore, Dr. Bodie opined that the DIME’s impairment rating was not justified. Tr. at 27. Dr. Bodie also testified that because the DIME’s report did not show any diagnosis of any cervical pathology, under the Level II accreditation guidelines it was inappropriate therefore to give a cervical spine rating. Tr. at 25.
The claimant next argues that the findings of the ALJ made in Finding of Fact No. 49 were not supported by the evidence. In that part of his order the ALJ made the following findings of fact. The DIME physician’s own concessions contraindicated his cervical impairment rating. He admitted that a claimant would not be eligible for an impairment rating under the AMA Guides if the specific criteria of Table 53 were not met. Specifically, a patient with limited range of motion would not be eligible for a rating if there was no spasm or rigidity found in the spine. Yet the DIME physician claimed that there was no requirement that he palpate the spine or even elicit a complaint of pain. To find spasm or rigidity in the spine, a doctor must palpate the spine. Even if palpation were not required, the criteria of Table 53 cannot be met without a specific finding of spasm or rigidity in the spine. The DIME physician’s report reflects no clinical evidence of spasm or rigidity. Applying his own conclusions and opinions to the facts, the criteria of Table 53 were never met and thus the claimant was not eligible for a cervical impairment rating. It is again our opinion that there is substantial evidence in the record to support these findings.
The ALJ determined that there was a lack of a specific finding of spasm or rigidity in the spine in the DIME physician’s report. We again note that this finding is supported by the report itself. Exhibit 6. However, the claimant contends there is evidence outside of the report for the DIME physician’s finding of rigidity. This does not alter the fact that there is support for the ALJ’s finding that the report itself lacks a finding of spasm or
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rigidity. Further as noted above the existence of evidence which, if credited, might support a determination contrary to that reached by the ALJ does not afford us grounds to grant appellate relief. Colorado Fuel and Iron Corp. v. Industrial Commission, supra.
The claimant argues that Table 53 of the AMA Guides only requires documented pain and rigidity and that an impairment can be found with or without muscle spasm. Here the ALJ in discussing whether there was a need for palpation noted that a patient with limited range of motion would not be eligible without a specific finding of spasm or rigidity. The ALJ’s statement regarding clinical evidence of spasm or rigidity is perhaps not as clear as it could be. Nevertheless, we are convinced that the ALJ understood that the presence of spasm is not required to meet the requirements of the relevant section of Table 53 of the AMA Guides.
Further, the DIME physician himself testified that in a situation where a person has limited range of motion and no spasm or rigidity in the spine then that individual would not qualify for a permanent medical impairment under the AMA Guides. Mechanic Depo. at 29. In our opinion, there is ample support in the record for the findings made by the ALJ in Finding of Fact No. 49.
The claimant finally argues that the findings of the ALJ made in Finding of Fact No. 50 were not supported by the evidence. In that section of his order the ALJ made the following findings of fact. In the second report, the DIME physician made no diagnosis of cervical spine pathology, elicited no complain of pain, took no history of complaints and never palpated the spine. In fact, the second DIME report reflects no description of a physical examination at all.
It is again our opinion that there is substantial evidence in the record to support these findings. The DIME’s second report itself bears this characterization. Exhibit 6. In addition, Dr. Brodie testified that the DIME physician did not really examine the cervical spine, other than dong a range of motion test. Tr. at 26-27. Further Dr. Raschbacher testified that the DIME’s second report did not reflect any examination of the cervical spine, other than range of motion, that the report did not meet the criteria of Table 53, that there was no clear diagnosis made, and under these circumstances it was wrong for the DIME physician to give a cervical impairment rating under level II accreditation courses. Raschbacher Depo. at 20.
Here, as it was his sole prerogative to do, the ALJ weighed the competing medical evidence and determined its respective probative value. The ALJ’s findings and conclusions are reasonable inferences drawn from the record and we may not disturb the order.
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IT IS THEREFORE ORDERED that the ALJ’s order issued April 4, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
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Copies of this order were mailed to the parties at the addresses shown below on
MAXINE P MEDINA-WEBER, 11078 W POLK PLACE, LITTLETON, CO, (Claimant) DENVER PUBLIC SCHOOLS, Attn: MS KAREN BRIGHT/MS ANNETTE SOLANO, DENVER, CO, (Employer)
PINNACOL ASSURANCE, Attn: MS SHIRIN CHOWDHURY, CO, (Insurer)
FOGEL, KEATING, WAGNER, POLIDORI SHAFNER, LLC, Attn: BRADLEY R UNKELESS, ESQ., 1290 BROADWAY, 6TH FLOOR, DENVER, CO, (For Claimant) NATHAN, BREMER, DUMM, MYERS, PC, Attn: ANNE SMITH MYERS, ESQ., 3900 E MEXICO AVE, SUITE 1000, DENVER, CO, (For Respondents) CLIFFORD J ENTEN, ESQ., 50 S STEELE ST., CO, (Other Party)
DENVER PUBLIC SCHOOLS, Attn: MR STEPHEN FINLEY, C/O: DIRECTOR — RISK MANAGER, GRANT STREET, DENVER, CO, (Other Party 2)
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