W.C. No. 4-503-378 4-536-958Industrial Claim Appeals Office.
March 26, 2004
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Muramoto (ALJ) which awarded permanent partial disability benefits based on a 6 percent loss of the arm at the shoulder. The claimant contends the evidence does not support the ALJ’s finding that the respondent overcame the whole person cervical impairment rating issued by the Division- sponsored independent medical examination (DIME) physician. The claimant also contends the evidence required the ALJ to convert the scheduled rating to a whole person rating. We affirm.
The claimant sustained two workers’ compensation injuries, and the claims for these injuries have been consolidated for the purpose of determining the claimant’s permanent impairment.
The first injury occurred On May 21, 2001, when the claimant fell from a truck injuring his right shoulder, neck, and knee. The claimant underwent surgical repair of the biceps tendon and labrum. On February 11, 2002, the primary treating physician for this injury, Dr. Smith, placed the claimant at maximum medical improvement (MMI) with a rating of 5 percent impairment of the right upper extremity. This rating was based on a “musculoskeletal defect” caused by debridement of the labrum. Dr. Smith also noted the claimant’s cervical strain had “resolved.” The respondent filed a final admission of liability based on Dr. Smith’s impairment rating.
The claimant sustained a second injury on February 14, 2002, when he was cranking a tarp roller. The claimant was treated by Dr. Smith and Dr. Reichhardt for right shoulder pain, cervical pain and periscapular symptoms. On October 18, 2002, Dr. Reichhardt placed the claimant at MMI, noting the claimant had symptoms which “begin over the scapular region and extend up into the neck and occasionally cause headaches.” Dr. Reichhardt assessed an impairment rating of 5 percent of the right upper extremity, which he converted to a 3 percent whole person impairment. The rating was attributed to reduced range of motion in the right shoulder, and was in addition to the upper extremity impairment previously assessed by Dr. Smith for the May 2001 injury. Dr. Reichhardt opined there was “not a specific cervical spine injury” and the claimant’s “pain generator on a medically probable basis is myofascial pain rather than a specific spinal disorder.” The respondent filed a final admission of liability based on Dr. Reichhardt’s 5 percent upper extremity impairment rating.
In January 2003 the claimant underwent an MRI of the cervical which revealed a “minimal disk bulge” at C6-7 “without spinal or foraminal stenosis.” An MRI of April 18, 2003, was reported as normal except for a curvature of the cervical thoraco junction. X-rays of the cervical spine were reported as normal.
On March 12, 2003, the claimant underwent a DIME. The DIME physician assessed a 15 percent whole person impairment rating. This rating included 6 percent impairment of the claimant’s right upper extremity, which converted to 4 percent whole person impairment. The DIME physician further assigned 11 percent whole person impairment for the claimant’s cervical spine, and opined this impairment was caused “by [the claimant’s] work-related injury.” The components of the cervical rating included 5 percent impairment for a specific disorder of the cervical spine and 6 percent impairment for reduced range of motion. The DIME physician predicated the cervical impairment rating on the claimant’s history of “near- daily neck pain,” neck “cracking,” and “charges or cramping” of the neck, trapezius and upper arm. Although the DIME physician never saw the January 2003 MRI or MRI report, he assumed based on the claimant’s statement that the “bulging disc” is present. However, the DIME physician also stated that it was “not completely knowable” whether the “presumed” MRI findings correlated with the claimant’s symptoms, particularly because there were no radicular symptoms.
The respondent filed an application for hearing seeking to overcome the DIME physician’s impairment rating insofar as it assessed whole person impairment for the claimant’s cervical spine. The ALJ found the respondent overcame the DIME physician’s rating by clear and convincing evidence because the DIME physician violated the rating protocols of the AMA Guides in several respects. In particular, the ALJ found the DIME physician improperly rated for a specific disorder of the cervical spine without reviewing the January 2003 MRI report and attempting to correlate it with the claimant’s symptoms. Further, the ALJ found the DIME physician improperly “split the cervical classification” between section II(B) and II(C) of Table 53, and because there were no supporting “structural tests.” Finally, the ALJ credited the opinion of Dr. Reichhardt that the claimant’s shoulder, neck and head pain are myofascial in origin and not the result of a separate injury to the cervical spine.
Under these circumstances, the ALJ awarded permanent partial disability benefits based on a scheduled rating of 6 percent loss of the arm at the shoulder. The ALJ stated the respondent “presented no persuasive evidence that it is highly probable [the DIME physician’s] permanent medical impairment rating is incorrect with regard to claimant’s shoulder.”
I.
On review, the claimant first contends the ALJ erred in finding the respondent overcame the DIME physician’s whole person impairment rating of the cervical spine. The claimant asserts the DIME physician’s rating was based on “substantial evidence” and that a mere difference of opinion between physicians cannot rise to the level of clear and convincing evidence. The claimant further asserts the ALJ’s findings concerning the DIME physician’s deviations from the AMA Guides are trivial and do not cast doubt on the overall validity of the rating. Finally, the claimant challenges the sufficiency of the evidence to support particular findings. We perceive no error.
The DIME physician’s rating of whole person medical impairment must be conducted in accordance with the rating protocols of the AMA Guides. The DIME physician’s rating of whole person medical impairment is binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(c), C.R.S. 2003; Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117
(Colo.App. 2003). The questions of whether the DIME correctly applied the AMA Guides, and whether the rating itself has been overcome are questions of fact for determination by the ALJ. Wilson v. Industrial Claim Appeals Office, supra.
The determination of impairment under the AMA Guides inherently requires the rating physician, when diagnosing the claimant’s condition, to evaluate and identify all losses caused by the industrial injury. Consequently, the DIME physician’s opinion that a particular impairment was or was not caused by the industrial injury is binding unless overcome by clear and convincing evidence. Again resolution of this issue is one of fact for the ALJ. Mosley v. Industrial Claim Appeals Office, 78 P.3d 1150 (Colo.App. 2003); Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998).
Because these issues are factual in nature, we must uphold the ALJ’s findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. This standard of review requires that we defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Thus, we may not substitute our judgment for that of the ALJ concerning the weight or credibility of medical opinions. We must also view the evidence in a light most favorable to the prevailing party, and the mere possibility that some evidence could support a different result affords no basis for appellate relief. Wilson v. Industrial Claim Appeals Office, supra.
Here, there is ample evidence to support the ALJ’s finding that the respondent overcame the DIME physician’s opinion that the claimant has ratable cervical impairment caused by one or both of the industrial injuries. As the ALJ recognized, the AMA Guides call for the rating physician to review the claimant’s medical history and records in an attempt to correlate the claimant’s reported symptoms with the clinical findings, including the results of medical tests. See McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo.App. 1999); Respondent’s Exhibit Q, AMA Guides Chapter 2. The DIME physician, by his own admission, did not review the January 2003 MRI or MRI report before concluding that the industrial injuries caused the alleged cervical impairment. Indeed, the DIME acknowledged that it was “unknowable” whether the “presumed MRI findings correlate with [the claimant’s] current symptoms.” Further, as the ALJ recognized, Table 53 II(B) requires none to minimal degenerative changes on structural tests and II(C) requires moderate to severe changes on structural changes. The DIME rated the claimant as falling between the criteria of II(B) and II(C) but failed to identify the degenerative changes on “structural tests.” The claimant’s argument notwithstanding, these deviations from the AMA Guides cast doubt on the accuracy of the DIME physician’s findings concerning the existence of cervical impairment and the causes of such impairment. The weight to be assigned and inferences to be drawn from these deviations from the AMA Guides was a matter for the ALJ.
Similarly, the DIME physician’s opinion concerning cervical impairment was disputed by Dr. Reichhardt who opined the claimant’s pain is not attributable to a separate neck injury but to the referred symptoms of shoulder and periscapular myofascial pain. This opinion apparently did not change after the January 2003 MRI. (Claimant’s Exhibit 2 p. 5). The weight to be assigned Dr. Reichhardt’s opinions was a matter for the ALJ and we have no basis for interfering with the ALJ’s decision to credit it.
The claimant’s argument notwithstanding, there is substantial evidence to support Finding of Fact 10. The claimant told the DIME physician about neck “cracking” and “charges” of pain. We find no evidence that the claimant reported such symptoms before the DIME, and the claimant points to no specific instances of such reports.
Therefore, substantial evidence supports the ALJ’s finding that the respondent overcame the DIME physician’s cervical rating by clear and convincing evidence. The mere fact some evidence would support a contrary conclusion does not permit us to set aside the order. Wilson v. Industrial Claim Appeals Office, supra.
II.
The claimant next contends the ALJ erred in awarding scheduled impairment for the upper extremity injury rather than a whole person impairment. The claimant argues that some evidence in the record would support the conclusion that the claimant suffered functional impairment beyond the arm at the shoulder. However, we conclude the claimant waived this argument.
The respondent admitted liability for a scheduled impairment of the upper extremity only. To the extent the claimant wished the ALJ to convert the scheduled impairment to a whole person rating, he was required to prove functional impairment beyond the arm at the shoulder. Section 8-43-201, C.R.S. 2003 (claimant has burden of proof to establish entitlement to benefits); § 8-42-107(b)(I), C.R.S. 2003 (scheduled injuries to be compensated under the schedule and nonscheduled injuries compensated as medical impairment benefits); Strauch v. Industrial Claim Appeals Office, 917 P.2d 366 (Colo.App. 1996). The question of whether the claimant proved functional impairment beyond the arm at the shoulder is an issue of fact for the ALJ, and the opinion of the DIME physician is not entitled to special weight on this question. See Delaney v. Industrial Claim Appeals Office, 30 P.3d 691 (Colo.App. 2000).
Our review of the record indicates the claimant never raised the issue in his pleadings or argued to the ALJ that the scheduled impairment of the upper extremity should be converted to a whole person impairment under § 8-42-107(8)(c). Consequently, the issue was waived by the claimant and may not now be raised on appeal. Cf. Kuziel v. Pet Fair, Inc., 948 P.2d 103 (Colo.App. 1997).
IT IS THEREFORE ORDERED that the ALJ’s order dated October 15, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Robert M. Socolofsky
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 March 26, 2004 by A. Pendroy.
Victor Potter, P. O. Box 1152, Greeley, CO 80632
Michelle Raimer, Weld County, P. O. Box 758, Greeley, CO 80631
Landon Wallis, CTSI, 800 Grant St., #400, Denver, CO 80203
William F. Garcia, Esq., 912 8th Ave., Greeley, CO 80631 (For Claimant)
David J. Dworkin, Esq. and Margaret Garcia, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondent)