W.C. No. 4-346-007Industrial Claim Appeals Office.
May 4, 2000
FINAL ORDER
The claimant seeks review an order of Administrative Law Judge Wheelock (ALJ) which determined that the Division-sponsored independent medical examination (IME) physician assessed a 9 percent whole person impairment, and that the claimant failed to overcome this rating by clear and convincing evidence. We affirm.
This matter was before his previously. Our Order of Remand dated November 9, 1999, contains a statement of the facts, and we incorporate that statement here. In our order, we directed the ALJ to consider whether the IME physician’s admitted deviation from the rating protocols of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides) warranted a factual finding that the IME physician’s impairment rating was overcome by clear and convincing evidence. However, citing Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998), and Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998), we noted that the IME physician’s deviation from the AMA Guides would not require a finding that the rating was overcome if, in the IME physician’s opinion, the claimant’s cervical range of motion impairment was not caused by the industrial injury.
On remand, the ALJ inferred from reports and testimony that the IME physician “did not believe that there was any causal connection between the claimant’s [cervical] range of motion deficits and her injury.” In support of this finding, the ALJ relied on the IME physician’s opinion that the claimant’s severe range of motion deficits were not consistent with the physical examination, the results of MRI and electrical studies, or medical history indicating the claimant previously had full range of motion. Instead, the IME physician opined that the claimant’s range of motion measurements resulted from a less than “maximal effort” during testing. (Tr. p. 35). Consequently, the ALJ determined the IME physician’s rating was not overcome with respect to the failure to assess impairment based on reduced cervical range of motion.
The ALJ also credited the IME physician’s statements that when he examined the claimant she did not complain of depression, nor was there any indication of depression in her medical records. Consequently, the ALJ determined that the IME physician’s rating was not overcome with respect to the failure to assess impairment based on depression.
I.
On review, the claimant reiterates her prior arguments that the ALJ misapplied the burden of proof, and that any deviation from the AMA Guides requires a determination that the IME physician’s impairment rating was overcome as a matter of law. These arguments were substantially addressed in our Order of Remand, and we adopt our prior rulings as if fully set forth herein.
Moreover, as a matter of diagnosis, the AMA Guides require the rating physician to identify all losses and restrictions which were caused by the industrial injury. An IME physician’s finding that a component of the claimant’s impairment was not caused by the injury must be overcome by clear and convincing evidence. See Qual-Med, Inc. v. Industrial Claim Appeals Office, supra. The ALJ’s determination that a finding was not overcome by clear and convincing evidence must be upheld if supported by substantial evidence in the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo. 1995).
The claimant’s argument notwithstanding, substantial evidence supports the ALJ’s determination that the IME physician’s finding concerning the cause of the claimant’s cervical impairment was not overcome. Although the cervical range of motion measurements were “valid,” the IME physician was persuaded that the observed limitations were so severe, and so inconsistent with the claimant’s medical history and objective findings, that they were the product of the claimant’s deliberate refusal to cooperate with the examination. There is legal authority and evidence to support the IME physician’s interpretation and application of the AMA Guide under these circumstances. Further, we cannot say, as a matter of law, that the ALJ was required to find the 9 percent impairment rating was overcome by clear and convincing evidence.
II.
The claimant next contends the ALJ erred in determining that she was not entitled to an impairment rating based on depression. In support of this contention, the claimant cites the IME physician’s testimony that pain and other symptoms were minimally affecting the claimant’s activities of daily living. The claimant also relies on the impairment rating for depression issued by her own independent IME physician. We find no error.
It is true that a mental impairment rating may be assessed for mental or behavioral disorders which affect activities of daily living. See Rule of Procedure XIX, 7 Code Colo. Reg. 1101-3 at pp. 124-125, 129-130. However, the rating physician must “limit such rating to mental or mental behavioral disorder impairments not likely to remit despite medical treatment.” (Emphasis added). Rule of Procedure XIX (E) (1) (a).
In this case, the IME physician testified that although the symptoms which affected the claimant’s activities of daily living may be associated with mental disorders, they may also be caused by soft tissue injuries like that suffered by the claimant. (Tr. p. 24). The IME physician also testified, in direct contravention to the claimant, that the claimant did not report symptoms of depression during the IME examination. Finally, the IME physician noted the absence of any medical history indicating the claimant was suffering from depression. Consequently, the IME physician opined the claimant did not suffer from rateable depression. (Tr. p. 22).
Thus, it was the IME physician’s opinion that the claimant was not suffering an injury-related mental disorder and, therefore, was not entitled to a mental impairment rating. Although the claimant presented conflicting medical opinion, it was the ALJ’s province to assess the weight and credibility of such evidence. Metro Moving and Storage Co. v. Gussert, supra.
The ALJ credited the opinions of the IME physician, and was not compelled to find that his opinion was overcome by the conflicting opinions and evidence presented by the claimant.
Insofar as claimant makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 10, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Bill Whitacre
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, 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. 1999. 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 decision were mailed May 4, 2000
to the following parties:
Mary Otero Cass, 10995 W. 23rd Ave. Drive, Lakewood, CO 80215
St. Mary Corwin Hospital, 1008 Minnequa Ave., Pueblo, CO 81004
Kathy Lindgren, Catholic Health Initiatives, Alternative Insurance Management Services, 1115 Elkton Dr., #400, Colorado Springs, CO 80907
Jean Lindsey, Centura Health, The Raleigh Professional Building, 4200 W. Conejos Pl., #524, Denver, CO 80204
Martin J. Linnet, Esq., 4155 E. Jewell Ave., #500, Denver, CO 80222 (For Claimant)
Anne Smith Myers, Esq., and Karen R. Wells, Esq., 3900 E. Mexico, #1000, Denver, CO 80210 (For Respondents)
BY: A. Pendroy