W.C. No. 4-128-469Industrial Claim Appeals Office.
October 23, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Rumler (ALJ) which awarded permanent partial disability benefits based upon a medical impairment of five percent of the whole person. We affirm.
The facts are essentially undisputed. The claimant’s sustained a compensable head injury in April 1992. Ultimately, the claimant requested a Division-sponsored independent medical examination (IME) concerning the degree of permanent medical impairment. The Division selected Dr. Brownstone, a neurologist.
In a report dated February 4, 1993, Dr. Brownstone noted the claimant’s history of headaches, memory difficulties and “frustration.” The doctor diagnosed “posttraumatic headaches and mild postconcussive syndrome,” with a resulting permanent impairment of five percent of the whole person. In calculating this impairment, Dr. Brownstone relied on Chapter 4, page 105 of the American Medical Association Guides to the Evaluation of Permanent Impairment (3rd Edition) (AMA Guides). Specifically, the doctor stated that the claimant “has the lowest degree of impairment of complex integrated cerebral functions.”
In May 1995, the claimant requested a second Division-sponsored IME for purposes of assigning a “psychiatric impairment rating.” The Division accommodated the claimant and selected Dr. Miller, a psychiatrist, to conduct the IME. Dr. Miller noted symptoms similar to those reported by Dr. Brownstone, and assessed the claimant as suffering a fifteen percent “neuropsychiatric impairment” under Chapter 14 of the AMA Guides. In support of this conclusion, Dr. Miller stated that the claimant has “demonstrated significant enough difficulties in thinking, concentration, persistence and pace, and adaptation to stress that place him in the mild to moderate category of impairment.”
Subsequently, the respondents requested that the claimant undergo an IME by Dr. Gutterman, a psychiatrist. Dr. Gutterman opined that the AMA Guides do not permit an examiner to consider both Chapter 4 and Chapter 14 when rating psychological problems. Rather, he opined that these sections are mutually exclusive, and that “Dr. Brownstone’s impairment rating of 5% is more consistent with my assessment.”
The ALJ concluded that because Dr. Miller and Dr. Brownstone were both Division-sponsored IME physicians their opinions are “entitled to equal weight.” The ALJ then concluded that the “most appropriate impairment rating in this case” is the five percent whole person rating given by Dr. Brownstone and Dr. Gutterman. In support of this determination, the ALJ cited evidence that the claimant demonstrated “significant inconsistencies” in reporting his symptoms, and that some physicians questioned the credibility of the claimant’s complaints.
On review, the claimant contends the ALJ failed to give sufficient weight to Dr. Miller’s opinion. The claimant argues that, as a Division-sponsored IME physician, the ALJ was required to credit Dr. Miller’s impairment rating unless overcome by clear and convincing evidence. Moreover, the claimant contends that Dr. Miller’s rating is not inconsistent with Dr. Brownstone’s rating because Dr. Miller rated the claimant’s “psychiatric impairment” while Dr. Brownstone rated the claimant’s “neurological impairment.” We are not persuaded.
As the respondents argue, we have previously held that §8-42-107(8)(c) does not contemplate multiple IMEs for purposes of rating the claimant’s medical impairment. The following language from Sprueil v. Echols, W.C. No. 4-214-745, June 14, 1996, is pertinent:
“The plain language in § 8-42-107(8)(c) does not contemplate a second IME once the ALJ determines that the initial IME is not binding. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Moreover, a second IME under § 8-42-107(8)(c), would be inconsistent with the legislative intent of reducing litigation concerning permanent disability. Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995).”
It is true that, under some circumstances, a claimant may be entitled to multiple IME ratings where there are physical and psychiatric components to the injury. However, such a situation arises only if the initial IME physician lacks Level II accreditation to rate both the psychiatric and physical components of the impairment. See Cruz v. Eden Foundation, Inc.,
W.C. No. 4-157-935, April 1, 1996. The need for multiple IMEs does not arise where the IME physician possesses full Level II accreditation.
Here, there is no assertion that Dr. Brownstone lacked the Level II accreditation required to rate both the physical and psychiatric components of the claimant’s industrial injury. Consequently, Dr. Brownstone’s impairment rating was binding unless overcome by clear and convincing evidence, without regard to Dr. Miller’s examination. Metro Moving Storage Co. v. Gussert, supra; Sprueil v. Echols, supra.
It follows that we agree with the respondents that any error in the ALJ’s consideration of Dr. Miller’s report was harmless because it inured to the claimant’s benefit. The ALJ’s order notwithstanding, Dr. Miller’s rating was not entitled to be given “equal weight” with Dr. Brownstone’s rating. Rather, Dr. Brownstone’s rating could be overcome only by clear and convincing evidence, and Dr. Miller’s opinion was not entitled to special weight. Moreover, it is apparent from the ALJ’s reliance on Dr. Brownstone’s rating, as well as her citation of Dr. Gutterman’s opinion, that she would not have considered Dr. Miller’s opinion “clear and convincing evidence” that Dr. Brownstone’s rating was incorrect.
We have considered the claimant’s alternative argument that Dr. Brownstone and Dr. Miller were rating distinct components of the claimant’s injury. However, the ALJ credited Dr. Gutterman’s opinion that it was possible to rate claimant’s injury under Chapter 4 or Chapter 14 of the AMA Guides, and that utilization of Chapter 4 was most appropriate under the circumstances. We may not interfere with the ALJ’s factual determination concerning the proper application of the AMA Guides to these facts. Metro Moving Storage Co. v. Gussert, supra.
In light of this disposition, it is unnecessary to consider the remaining arguments.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 27, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed October 23, 1996 to the following parties:
Leon Pinley, 1060 17th Ave., #2, Longmont, CO 80501
Gulley Enterprises of Colorado, Inc., P.O. Box 1451, Gillette, WY 82717-1451
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)
John G. Taussig, Jr., Esq., 1919 14th St., Ste. 805, Boulder, CO 80302 (For the Claimant)
By: _________________________