W.C. No. 4-522-608Industrial Claim Appeals Office.
November 24, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Muramoto (ALJ) which denied the claim for permanent partial disability benefits. The claimant contends the ALJ erred in finding the respondents overcame the impairment rating of the Division- sponsored independent medical examination (DIME) physician by clear and convincing evidence. We affirm.
The claimant sustained an admitted injury on August 20, 2001, when some sheet metal struck him causing him to twist his back. The claimant came under the care of Dr. Miller, who provided various modalities of conservative treatment. During treatment, the claimant presented with diffuse low back pain, but Dr. Miller did not believe the level of pain was substantiated by objective findings. (Miller depo., January 15, 2002, p. 6).
In January 2002, Dr. Miller reviewed a videotape which depicted the claimant performing various activities, including feeding farm animals, “pitchforking hay,” and moving without apparent discomfort. Based on the discrepancy between the claimant’s reported symptoms and the level of activity revealed by the videotape, Dr. Miller placed the claimant at maximum medical improvement with no permanent impairment.
The claimant underwent a DIME on the issue of impairment. The DIME physician opined the claimant sustained a 5 percent impairment for a specific disorder of the lumbar spine under Table 53 (II) (B) of the AMA Guides, and 7 percent impairment for reduced range of motion, for a combined 12 percent whole person impairment.
Relying principally on the reports and deposition testimony of Dr. Miller, the respondents sought to overcome the DIME physician’s impairment rating. Crediting Dr. Miller’s opinions, the ALJ found it highly probable the DIME physician’s impairment rating is incorrect. Thus, the ALJ found the claimant sustained no permanent impairment.
On review, the claimant argues that Dr. Miller’s reports and testimony do not constitute substantial evidence to support the finding that the respondents overcame the DIME physician’s rating by clear and convincing evidence. In support of this contention, the claimant cites evidence that Dr. Miller did not discuss the videotape with the claimant, admitted that the mechanism of injury might have been sufficient to cause injury, and that a March 2002 MRI showed differences from an MRI conducted earlier. The claimant also asserts that Dr. Miller admitted the DIME physician’s rating could be correct given the most recent MRI findings and the passage of time. We find no error.
The finding of the DIME physician concerning the claimant’s medical impairment must be overcome by clear and convincing evidence, or the rating is binding on the parties. Section 8-42-107(8)(c), C.R.S. 2003. The rating of medical impairment under the AMA Guides requires the rating physician, as a matter of diagnosis, to “identify and evaluate all losses and restrictions that result from the injury.” Mosley v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA1788, September 11, 2003). Hence, the DIME physician’s opinion that a particular condition is or is not caused by the industrial injury must be overcome by clear and convincing evidence. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002); Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998). The AMA Guides contemplate that resolution of the causation issue depends, in part, on the rating physician’s clinical evaluation and information gathered during that process. See Wackenhut Corp. v. Industrial Claim Appeals Office, 17 P.3d 202
(Colo.App. 2000).
Ultimately, 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 questions of fact for determination by the ALJ. Wilson v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA2140, August 14, 2003); McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo.App. 1999). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. This is a narrow standard of review which requires us to view the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, supra. In particular, the relative weight and credibility to be assigned competing expert medical opinions is the ALJ’s province as fact-finder. Cordova v. Industrial Claim Appeals Office, supra.
We disagree with the claimant’s argument that Dr. Miller’s opinions do not constitute substantial evidence to support the ALJ’s finding that the DIME physician’s rating was overcome. Dr. Miller opined the claimant’s MRI findings probably represent preexisting degenerative changes. Further, based on a comparison of the claimant’s reported symptoms during clinical evaluation to the activities depicted in the videotape, Dr. Miller opined it is highly unlikely the claimant sustained any permanent impairment caused by the August 2001 injury. (Miller depo., January 15, 2003, pp. 11-13, 15-16, 25, 29). The weight to be assigned Dr. Miller’s opinion was for the ALJ, particularly since it was a product of clinical evaluation.
It is true some evidence in the record could support a contrary result. However, that fact does not justify interference with the ALJ’s credibility determinations. Wilson v. Industrial Claim Appeals Office, supra. The claimant’s assertions notwithstanding, even if Dr. Miller’s testimony can be construed as agreeing that the DIME physician’s rating could be correct, that testimony was predicated on fundamental assumptions with which Dr. Miller disagrees. Further, the mere fact that the claimant has MRI findings does not compel the conclusion that the findings were caused or aggravated by the industrial injury so as to justify an impairment rating. The claimant’s remaining arguments are purely factual in nature and are without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 19, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate this 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, within twenty (20) days after the date this Order was mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2003. The appealing party must serve a copy of the Petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on November 24, 2003 by A. Hurtado.
Terry Meyer, 18198 Sagebrush Way, Brighton, CO 80603
Robinson Mechanical Company, 5541 Central Ave., Boulder, CO 80301
American Casualty Company, c/o Kimberly Dick, RSKCo, P. O. Box 17369, Denver, CO 80217
Barrie G. Sullivan, II, Esq., 1325 S. Colorado Blvd., #405, Denver, CO 80222 (For Claimant)
Gregory K. Chambers, Esq. and C. Sandra Pyun, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondents)