W.C. No. 4-528-594.Industrial Claim Appeals Office.
May 31, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which determined the claimant failed to overcome the medical impairment rating of the Division-sponsored independent medical examination (DIME) physician and, therefore, denied additional permanent partial disability (PPD) benefits. We affirm.
In September 2001, the claimant suffered compensable injuries to his neck and shoulders bilaterally. On May 12, 2004, the authorized treating physician (ATP) opined the injuries caused 4 percent permanent medical impairment for a specific disorder of the cervical spine. Based upon range of motion (ROM) measurements the ATP also assigned 14 percent impairment to the cervical spine, 3 percent impairment to the left shoulder and 2 percent impairment to the right shoulder. The ATP’s combined rating was 22 percent.
In July 2004, the DIME physician assigned 21 percent whole person impairment consisting of 5 percent for a specific disorder of the cervical spine, 10 percent ROM deficits to the cervical spine and 2 percent permanent mental impairment. The DIME also conducted ROM measurements of the claimant’s shoulders, which would have resulted in a total impairment rating of 27 percent. However, because the ROM measurements taken on May 12 were “better” than the measurements taken during the DIME, the DIME relied on the ATP’s ratings of 3 percent impairment to left shoulder and 2 percent impairment to the right shoulder.
The respondents filed a Final Admission of Liability (FAL) for a scheduled disability award consistent with the DIME physician’s upper extremity ratings for impairment to the right and left shoulders, and medical impairment benefits for 15 percent whole person impairment. The respondents also admitted liability for 12 weeks of mental impairment benefits. However, the respondents asserted the award was limited to $60,000 § 8-42-107.5, C.R.S. 2004, which applies to impairment ratings of 25 percent or less.
The ALJ determined the claimant failed to overcome the DIME physician’s 21 percent whole person impairment rating. However, the ALJ found the claimant’s shoulder impairment was not fully compensated on the schedule of disabilities. Therefore, the ALJ determined the claimant would be entitled to additional compensation for whole person impairment to the shoulders, if not for the $60,000 cap on medical impairment ratings of 25 percent or less. Therefore, the ALJ approved the respondents’ FAL and denied PPD benefits in excess of the admitted liability.
The claimant timely appealed the ALJ’s order. However, the claimant’s brief in support of the petition was filed 1 day late. Consequently, the ALJ granted the respondents’ motion to strike the brief in support of the petition. See § 8-43-301(4), C.R.S. 2004.
Subsequent to our receipt of the record, the claimant filed a “Motion to Reinstate Brief.” We note that the claimant’s brief is included in the record transmitted to us on review, as requested in the claimant’ motion. Nevertheless, we decline to disturb the ALJ’s order striking the brief. Therefore, we have not considered the claimant’s brief. Instead, we have relied on the respondents’ brief in opposition to the petition to review, which lists the claimant’s appellate arguments.
The claimant contends the DIME physician’s rating was 27 percent whole person impairment. Therefore, the claimant contends the ALJ erred in finding that the DIME physician’s “finding” of PPD was the rating which resulted after the DIME physician decided to rely on the ATP’s ROM measurements in the shoulders. Further, the claimant contends the ALJ was bound by the DIME physician’s actual physical impairment rating of 27 percent unless overcome by the respondents. The ALJ expressly rejected these arguments and we perceive no basis to interfere with his determination.
The respondents contend the claimant’s appellate arguments were waived because they are different than the issues raised by the claimant in his post-hearing position statement. Further, the respondents contend the claimant’s contentions were not raised in the Petition to Review. We disagree with the respondents.
It is true that an issue not raised before the ALJ may not be raised for the first time on appeal. Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131
(Colo.App. 1994). However, neither the claimant nor the respondents has provided a transcript of the hearing on December 15, 2004. Under these circumstances, we cannot say the claimant failed to preserve these issues for appellate review.
In any case, the ALJ’s order expressly states that the issue for adjudication was “medical impairment benefits.” Because medical impairment benefits is a form of PPD benefits, we conclude that the claimant’s February 1, 2005, Petition to Review which alleges that the ALJ “erred in his determination of” PPD benefits, encompasses the claimant’s challenge to the ALJ’s interpretation of the DIME physician’s PPD rating. See Ray v. Industrial Claim Appeals Office, 920 P.2d 868 (Colo.App. 1996).
Moreover the claimant could not allege any “errors” in the ALJ’s order until after it was actually issued. Consequently, any disparity between the arguments raised by the claimant’s post-hearing position statement and the claimant’s petition to review are immaterial.
A DIME physician must rate impairment in accordance with the provisions of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides). Section 8-42-101(3.7), C.R.S. 2004; § 8-42-107(8)(c), C.R.S. 2004; Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). The DIME physician’s finding of impairment is binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(c). The questions of whether the DIME physician properly applied the AMA Guides, and ultimately whether the rating has been overcome by clear and convincing evidence are issues of fact for determination by the ALJ Wackenhut Corp. v. Industrial Claim Appeals Office,
17 P.3d 2002 (Colo.App. 2000).
Because these issues are factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004. This standard of review 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. Wilson v. Industrial Claim Appeals office, supra. Further, where the DIME physician’s “finding” concerning the claimant’s impairment rating is ambiguous or subject to conflicting interpretations, it is for the ALJ to determine the DIME physician’s true rating as a matter of fact. Lambert and Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656 (Colo.App. 1998); Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (applying same principle to DIME physician’s ambiguous opinion concerning maximum medical improvement).
Here, the ALJ properly recognized that the DIME physician’s “finding” of medical impairment may be determined not only from the written report but also the DIME physician’s testimony Lambert and Sons, Inc. v. Industrial Claim Appeals Office, supra; Rodriguez v. Aurora Public Schools, W.C. No. 4-447-174
(January 7, 2002). Therefore, we reject the claimant’s contention that the DIME physician’s “finding” of shoulder impairment was restricted to the rating derived from applying the AMA Guides to the DIME physician’s ROM of motion measurements. Rather, the AMA Guides provide that the DIME physician’s rating may be the product of a variety of information sources such as the clinical examination, medical history, tests and functional measurements Wackenhut Corp. v. Industrial Claim Appeals Office, supra.
Consequently, the rating assigned by a DIME physician for lost ROM may be influenced by inconsistencies in clinical findings See Garcia v. Merry Maids, W.C. No. 4-493-324 (August 12, 2002) (under AMA Guides DIME physician properly excluded valid ROM measurements from rating where the measurements were inconsistent with clinical examination); Fausnacht v. Inflated Dough, Inc.,
W.C. No. 4-160-133 (July 20, 1999) (DIME physician properly excluded valid ROM measurements from rating where he determined the claimant was not giving full effort), aff’d. Fausnacht v. Industrial Claim Appeals Office, Colo. App. No. 99CA1499, May 4, 2000 (not selected for publication).
The claimant’s arguments notwithstanding, the ALJ’s finding that the DIME assigned 21 percent whole person impairment is supported by substantial evidence in the DIME report dated July 12, 2004 and the DIME physician’s deposition testimony. (See
depo. p. 9). Therefore, the ALJ’s finding must be upheld.
It follows the ALJ was not bound by the AMA Guides recommended rating based on the DIME physician’s ROM measurements, where the claimant failed to overcome the DIME physician’s testimony that the AMA Guides and Level II accreditation training allow the DIME physician to rely on the ROM measurements of another physician if the claimant failed to give maximal effort during the DIME. (See depo. pp. 11, 29, 31). Consequently, the claimant’s arguments do not afford us a basis to grant appellate relief.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 12, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________ Kathy E. Dean
___________________ Curt Kriksciun
Billy W. Reed, Colorado, Springs, CO, City of Colorado Springs, Colorado Springs, CO, DIME Unit, Division of Workers’ Compensation-Interagency Mail, William A. Alexander, Jr., Esq., Colorado Springs, CO, (For Claimant).
Joseph C. Irwin, Esq., Colorado Springs, CO, (For Respondent).