W.C. No. 4-484-715Industrial Claim Appeals Office.
February 4, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Muramoto (ALJ) which determined the claimant failed to overcome the impairment rating of the Division-sponsored independent medical examination (DIME) physician. We affirm.
On March 12, 1999, the claimant sustained injuries to her right shoulder, back, and right lower extremity when she stepped in a hole and fell against a dumpster. In October 2000, a treating physician placed the claimant at maximum medical improvement (MMI) with a 16 percent whole person permanent impairment rating. The rating was based on impairment of the right upper extremity and the lumbar spine.
The claimant underwent a DIME on the issue of impairment. The DIME physician assessed a 24 percent whole person impairment based on diminished range of motion in the right upper extremity, plus a specific disorder and impaired range of motion of the lumbar spine. The DIME physician opined the claimant’s right ankle had “returned to normal,” and noted no ratable impairment of the cervical spine because there were no “severe abnormalities.”
The claimant obtained an IME from Dr. Bralliar. Dr. Bralliar assessed a 37 percent whole impairment which, in addition to the areas rated by the DIME physician, included impairment of the cervical and thoracic spine, and impairment of the right lower extremity.
Following a hearing at which the DIME physician and Dr. Bralliar testified, the ALJ found the claimant failed to overcome the DIME physician’s impairment rating by clear and convincing evidence. In support of this determination, the ALJ found the differences between the DIME physician and Dr. Bralliar represent a difference of opinion which is insufficient to overcome the DIME physician’s rating. The ALJ noted Dr. Bralliar was the only physician to rate the claimant’s cervical spine, and that Dr. Bralliar’s report failed to discuss 7 months of treatment which was rendered between March 2000 and the date of MMI.
On review, the claimant contends, in essence, that the evidence compelled the ALJ to find the DIME physician’s rating was overcome by clear and convincing evidence. Specifically, the claimant argues the medical records establish permanent impairment of the cervical and thoracic spines, as well as permanent impairment of the right lower extremity (ankle and knee). The claimant asserts the DIME physician failed to consider pertinent medical records, and the ALJ should have relied on Dr. Bralliar’s rating. We are not persuaded.
The impairment rating of the DIME physician is binding on the parties unless overcome by clear and convincing evidence. Section 8-42-107(8)(c), C.R.S. 2002. The questions of whether the DIME physician properly applied the AMA Guides in arriving at the rating, and whether the rating itself has been overcome, are questions of fact for determination by the ALJ. McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263
(Colo.App. 1999). In this regard, we note the AMA Guides contemplate the rating physician will perform a clinical evaluation and apply the findings to the rating criteria in the guides. See Wackenhut Corp. v. Industrial Claim Appeals Office, 17 P.3d 202 (Colo.App. 2000).
Because the question of whether the DIME physician’s rating has been overcome by clear and convincing evidence is one of fact, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. 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. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). The weight and credibility to be assigned expert medical opinion is a matter within the ALJ’s province as fact-finder. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186
(Colo.App. 2002). Further, the fact that a physician may possess an incomplete understanding of the claimant’s medical history goes to the weight, not the admissibility of the opinion. Industrial Commission v. Albo, 167 Colo. 467, 447 P.2d 1006 (1968).
The claimant argues the DIME physician’s opinion that the claimant did not sustain any cervical impairment is overcome because the DIME physician incorrectly stated the claimant did not report much cervical pain shortly after the accident. The claimant points out, inter alia, that chiropractic records document a diagnosis of “cervical strain” in April 2000.
However, the DIME testified he was aware of the claimant’s cervical complaints documented in the medical records, but, in his clinical opinion did not warrant a rating for the cervical spine. The DIME physician’s opinion was corroborated by the treating physician who also declined to rate cervical impairment. (Tr. Pp. 10, 40). Moreover, the DIME physician pointed out the claimant’s cervical EMG tests were negative, and many affected muscles are associated with the claimant’s shoulder condition. (Tr. Pp. 27, 30). Under these circumstances, we cannot say the ALJ erred in concluding that Dr. Bralliar’s opinions were not so compelling that as a matter of law they overcame the DIME physician’s rating.
Much the same may be said of the DIME physician’s refusal to rate thoracic and lower extremity impairment. Again, the DIME physician’s opinion was corroborated by the treating physician’s rating. Although Dr. Bralliar expressed conflicting views, the ALJ did not find her opinion sufficiently persuasive. As the ALJ pointed out, there is evidence that Dr. Bralliar made selective references to the medical records. Under these circumstances, we cannot say the ALJ was required to credit Dr. Bralliar’s opinions as being sufficient to overcome the DIME physician’s rating.
The claimant also relies on evidence that the DIME physician misunderstood the procedures established by the AMA Guides for measuring lost range of motion. However, even if true, this would not establish as a matter of law that the DIME was incorrect in declining to rate cervical, thoracic, or lower extremity impairment. Rather, such evidence merely constitutes some evidence affecting the weight to be accorded the DIME physician’s rating.
Insofar as the claimant makes other arguments we find them to be factual in nature and without merit based on the record before us.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 29, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________
David Cain
___________________________________
Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced 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. 2002. The appealing party must serve a copy of thepetition upon all other parties, including the Industrial Claim AppealsOffice, which may be served by mail at 1515 Arapahoe Street, Tower 3,Suite 350, Denver, CO 80202.
Copies of this decision were mailed ________February 4, 2003
to the following parties:
Connie L. Ray, 4801 Eaton St., Denver, CO 80212
Deborah Lucero, Claims Adjuster, City County of Denver, 201 W. Colfax Ave., Dept. 1105, Denver, CO 80202
Dan N. Hover, Esq., 1805 S. Bellaire St., #205, Denver, CO 80222 (For Claimant)
Olivia L. Hudson Smith, Esq., 201 W. Colfax Ave., Dept. 1108, Denver, CO 80202 (For Respondent)
By: __________A. Hurtado__________