W.C. No. 4-346-007.Industrial Claim Appeals Office.
November 9, 1999.
ORDER OF REMAND.
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which approved the respondents’ final admission of liability for medical impairment benefits based on impairment of 9 percent of the whole person. The claimant argues that the Division-sponsored Independent Medical Examination (IME) impairment rating was overcome as a matter of law. Further, the claimant argues the ALJ misapplied the burden of proof, and that the ALJ’s order is not supported by the evidence. We remand the matter for entry of a new order.
In March 1997 the claimant sustained a compensable injury to her left shoulder and neck. In December 1997 one examining physician determined the claimant had an overall whole person impairment of 19 percent. This rating included 13 percent impairment for cervical range of motion deficits.
The claimant then underwent a Division-sponsored IME. In a report dated March 24, 1998, the Division IME physician assessed a 9 percent whole person impairment based on 5 percent impairment of the left upper extremity and 4 percent impairment for a specific disorder of the cervical spine. The IME physician also reported the claimant had a “markedly limited range of motion” of the cervical spine. However, he determined the claimant’s measurements failed “to meet internal validity criteria” and scheduled the claimant for repeat measurements.
In a report dated March 31, 1998, the IME physician reported that the claimant’s cervical range of motion measurements were “internally consistent.” However, he stated that he was “at a loss to completely be able to completely explain the severe range of motion limitations based on normal structural testing” and that he did not feel her range of motion measurements should be counted.” Thus, the IME physician reiterated the 9 percent impairment rating.
The claimant sought a hearing to overcome the Division IME physician’s impairment rating. At the hearing the claimant presented a medical report from a personal IME physician, who opined the claimant has a 34 percent whole person impairment rating which includes 13 percent impairment for reduced cervical range of motion, and five percent for mental impairment attributable to depression.
At the hearing, the claimant called the Division IME physician as a witness. The Division IME physician admitted that the March 31 examination had produced “valid” cervical range of motion measurements under the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides). The physician also admitted that the AMA Guides do not permit him to disregard valid range of motion measurements when determining the claimant’s medical impairment. However, the physician testified that the Division of Workers’ Compensation accreditation course teaches that a Division IME may discount valid range of motion measurements if, as here, they are inconsistent with prior measurements and inconsistent with the claimant’s clinical presentation as shown by MRI findings. (Tr. pp. 27-28).
Under these circumstances, the ALJ credited the Division IME physician’s testimony, stating that it was “well reasoned and clearly showed that he applied the AMA Guides and Level II accreditation courses in arriving at” the 9 percent rating. The ALJ explicitly relied on the Division IME physician’s testimony that the Level II accreditation course teaches that IME physicians may disregard valid range of motion measurements under certain circumstances. (Finding of Fact 27). Consequently, the ALJ determined that the evidence presented a mere “disagreement among the physicians” concerning the proper rating, and the claimant failed to present clear and convincing evidence to overcome the 9 percent rating. Thus, the ALJ approved the respondents’ final admission of liability.
I.
The claimant first contends that the Division IME admitted that he deviated from the AMA Guides by failing to include an impairment rating based on the claimant’s valid cervical range of motion measurements. Because § 8-42-107(8)(c), C.R.S. 1999, requires medical impairment ratings to be based on the AMA Guides, the claimant argues that he overcame the 9 percent rating as a matter of law. We disagree.
We do not dispute the claimant’s contention that the Act requires medical impairment ratings to be calculated in accordance with the AMA Guides. Section 8-42-101(3.7), C.R.S. 1999; §8-42-107(8)(c); Gonzales v. Advanced Component Systems, 949 P.2d 569 (Colo. 1997). However, we disagree that every violation of the rating protocols established by the AMA Guides constitutes “clear and convincing” evidence that the rating has been overcome. To the contrary, Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995), expressly states that the questions of whether the IME physician properly applied the AMA Guides, and whether the IME’s impairment rating has been overcome by clear and convincing evidence, are questions of fact for determination by the ALJ. Moreover, we have repeatedly held, and the Court of Appeals has agreed, that deviation from the AMA Guides is merely one evidentiary fact which the ALJ may consider in determining the overall question of whether the IME physician’s rating has been overcome. Rivale v. Beta Metals, Inc., W.C. No. 4-265-360 (April 16, 1998), aff’d., Rivale v. Industrial Claim Appeals Office, (Colo.App. No. 98CA0858, January 28, 1999) (not selected for publication); 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). Indeed, in the Rivale case, the Court of Appeals stated that a “deviation from the AMA Guides may be considered inconsequential when the balance of the evidence demonstrates that it does not cause substantial doubt concerning the overall validity of the rating.”
It follows that we disagree with the claimant’s assertion that any deviation from the AMA Guides which resulted from the Division IME’s failure to include a rating for cervical range of motion required the ALJ to find as a matter of law that the rating was overcome. The cases cited by the claimant do not persuade us to the contrary because they do not expressly address the issue at hand.
II.
The claimant next contends the ALJ misapplied the burden of proof. The claimant argues that because the Division IME physician testified that the valid cervical range of motion measurements would amount to a 20 percent whole person impairment, the ALJ was bound to include this impairment in the rating and shift the burden to the respondents to overcome it. We also reject this argument.
In Lambert Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656 (Colo.App. 1998), the Division IME physician issued conflicting opinions concerning whether the claimant’s 12 percent impairment was attributable to the industrial injury or to a prior injury. However, the ALJ resolved the ambiguity and determined the IME physician attributed the 12 percent impairment rating to the industrial injury. Under these circumstances, the Court of Appeals concluded that the respondents, who were challenging the IME physician’s failure to apportion based on the prior injury, had the burden of proof to overcome the 12 percent impairment rating by clear and convincing evidence.
Here, the ALJ was clearly persuaded that the IME physician’s impairment rating was 9 percent as a whole person. While this rating may or may not be in accordance with the AMA Guides, and therefore, may or may not be correct, the burden rests with the claimant to establish by clear and convincing evidence that the rating is incorrect.
III.
The claimant next contends that even if a deviation from the AMA Guides does not require a finding that the IME physician’s rating has been overcome, the evidence in this case establishes that the rating was overcome with respect to cervical range of motion. Because we conclude the ALJ misapplied the law to the facts of this case, we remand for entry of a new order.
As noted previously, the law requires that medical impairment ratings be determined in accordance with the AMA Guides. Deviations from the AMA Guides constitute evidence which the ALJ may consider in determining whether the IME physician’s rating has been overcome by clear and convincing evidence. Metro Moving Storage Co, v. Gussert, supra.
Here, the Division IME physician admitted that he deviated from the AMA Guides because the Guides do not permit the rating physician to ignore valid range of motion measurements when assessing impairment. The ALJ apparently determined that this deviation was of no evidentiary effect because the Division IME testified that the Level II accreditation course teaches that an IME physician need not consider valid range of motion tests under circumstances present in this case. However, it is the AMA Guides themselves, not the teachings of the Level II accreditation course, which establish the statutory standards for assessing medical impairment. Therefore, the ALJ erred insofar as she concluded that the Division IME physician’s deviation from the AMA Guides was of no evidentiary significance because it was excused by information provided at the Level II accreditation course.
Under these circumstances, the matter must be remanded to the ALJ for entry of a new order determining whether or not the Division IME physician’s impairment rating was overcome by clear and convincing evidence. In this regard, the ALJ must consider the IME physician’s admitted deviation from the AMA Guides in determining whether his impairment rating was overcome by clear and convincing evidence. In reaching this result, we should not be understood as expressing any opinion concerning the weight of the evidence, the credibility of the witnesses, or the inferences to be drawn from the record.
We specifically note that in Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998), the Court of Appeals stated that determination of the cause of an impairment is an inherent part of the diagnostic process mandated by the AMA Guides and the IME review. See also, Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998). Here, the IME physician’s opinion could be read as expressing the opinion that, although the claimant’s measurements were indicative of measureable impairment, the cause of the impairment was the claimant’s failure to cooperate with the process of measurement. If the ALJ were to reach this interpretation of the evidence, she would be permitted to determine that the IME physician’s rating was not overcome, even though the IME physician technically misapplied the AMA Guides by suggesting that it was proper to ignore valid range of motion measurements baased on instructions received during training.
We need not address the claimant’s remaining arguments concerning psychological impairment since the ALJ’s assessment of the evidence pertaining to that issue may be influenced by her consideration of the issues addressed in this order.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 29, 1999, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Bill Whitacre
Copies of this decision were mailed November 9, 1999 to the following parties:
Mary Otero Cass, 3784 Quitman St., Denver, CO 80212.
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