W.C. No. 4-308-456Industrial Claim Appeals Office.
May 27, 1999.
FINAL ORDER
The respondents seek review of final order of Administrative Law Judge Wheelock (ALJ) which awarded permanent partial disability benefits based on a 29 percent medical impairment. The respondents argue the ALJ should not have given any weight to the medical impairment rating issued by the Division-sponsored independent medical examiner (IME), because of an improper communication with the claimant’s attorney. The respondents also argue that the evidence compelled the ALJ to find that the rating of the Division IME physician was overcome by clear and convincing evidence. We find no error.
The claimant sustained a compensable low back injury on August 13, 1996. An MRI revealed a small disc bulge at the L5-S1 level, but there was no herniation. The claimant underwent a course of conservative treatment and was placed at maximum medical improvement (MMI) in April 1997. At that time, one of the treating physicians, Dr. Olson, assessed a 15 percent whole person impairment. This rating was based on 5 percent impairment for a specific spinal disorder, and an 11 percent impairment for lost range of motion.
The respondents requested a Division-sponsored IME. The IME was performed by Dr. Pero on August 22, 1997, and he issued a report dated October 3, 1997. Dr. Pero assessed 5 percent impairment for a specific disorder of the spine, and 25 percent impairment based on lost range of motion of the lumbar spine. These values were combined to produce a 29 percent whole person impairment rating. Dr. Pero recognized that he measured a greater lost range of motion than was reported by Dr. Olson, but stated that the increase was due to the fact the claimant “was not involved in an ongoing, independent exercise program between the expiration of his swim/fitness membership in 5/97 and the time of the IME on 8/22/97.”
The respondents obtained another IME from Dr. Aschberger. Dr. Aschberger testified that the claimant does not have any ratable medical impairment because claimant’s movements during his examination were totally inconsistent with the limited ranges of motion reported by Dr. Pero. Further, Dr. Aschberger noted that the claimant’s medical records revealed much greater ranges of motion than was reported by Dr. Pero. Finally Dr. Aschberger opined that Dr. Pero violated the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides), because he failed to reconcile the disparate range of motion measurements before issuing his medical impairment rating. In fact, Dr. Aschberger testified the claimant was consciously misrepresenting his condition.
During the course of the hearing, Dr. Pero was called as a witness. Dr. Pero testified that in March 1998, prior to a previously scheduled hearing, he discussed the case with one of the claimant’s attorneys. Upon learning of these discussions counsel for the respondents moved to “strike” Dr. Pero’s testimony and his entire IME report. In an order dated November 20, 1998, the ALJ granted the respondents’ motion to strike Dr. Pero’s testimony, but ruled that the IME report would be “admitted as evidence in this matter.” The ALJ noted that the improper conversation occurred several months after Dr. Pero issued the IME report.
On December 15, 1998, the ALJ entered an order awarding permanent partial disability benefits based on Dr. Pero’s 29 percent whole person impairment rating. The ALJ specifically found the respondents failed to overcome the rating by clear and convincing evidence as required by § 8-42-107 (8) (c), C.R.S. 1998. The ALJ determined that Dr. Pero’s rating substantially complied with the AMA Guides, and the range of motion measurements taken by Dr. Pero were valid. The ALJ was unpersuaded that the reported variations in the claimant’s range of motion measurements were sufficient to overcome the rating because the claimant was not involved in an exercise program after reaching MMI. Further, the ALJ noted that, except for Dr. Aschberger, the medical records are devoid of evidence that the claimant was “misrepresenting his condition.” Finally, the ALJ was unpersuaded that Dr. Pero’s failure to reconcile his range of motion measurements with those of other physicians constituted a significant deviation from the AMA Guides sufficient to justify invalidating the rating.
I.
On review, the respondents first contend the ALJ erred in failing either to strike Dr. Pero’s IME report from the record or, alternatively, remand the matter for a second Division-sponsored IME. The respondents argue that the improper communication between Dr. Pero and the claimant’s attorney required the ALJ to “cancel” the IME report under Rule of Procedure XIV (L) (6) (a), 7 Code Colo. Reg. 1101-3 at 59. We disagree.
Rule XIV (L) (6) (a) concerns “communication with an IME physician,” and provides as follows:
During the IME process, there shall be no communication allowed between the parties and the IME physician unless approved by the director, or an administrative law judge. Any violation may result in cancellation of the IME.
In interpreting this regulation we apply the ordinary rules of statutory construction. Gerrity Oil and Gas Corp. v. Magness, 923 P.2d 261 (Colo.App. 1995). Specifically, words and phrases in the regulation should be given their plain and ordinary meanings unless the result is absurd. Id. at 265. We must also consider the entire regulatory scheme in a manner that gives consistent, harmonious, and sensible effect to all of its parts Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991).
Here, we note that Rule of Procedure XIV(L)(6)(b), 7 Code Colo. Reg. 1101-3 at 59-60, which immediately follows subsection (6) (a), provides that “after acceptance by the Division of the final report,” communication with the IME physician is permitted only under specific circumstances. In view of subsection (6) (b), it is apparent that the term “cancellation” in subsection (6) (a) refers to stopping the medical examination itself, not invalidating a subsequently issued IME report. Therefore, we disagree with the respondents’ assertion that the plain and ordinary meaning of subsection (6) (a) authorized the ALJ to invalidate the entire IME report because of the improper communication which occurred after issuance of the report.
In any event, subsection (6) (a) states that an improper communication “may result” in cancellation of the IME. Thus, even if an improper post-report communication establishes grounds for invalidating the previously issued report, use of the term “may” indicates that the decision is discretionary with the ALJ. Cf. Hillebrand Construction Co. v. Worf, 780 P.2d 24 (Colo.App. 1989) (use of the term “shall” indicates mandatory action).
We may not invalidate discretionary decisions unless the ALJ’s ruling is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law. Rosenberg v. Board of Education of School District No. 1, 710 P.2d 1095 (Colo. 1995). Here, the ALJ reasonably concluded that because the improper communication occurred after issuance of the IME report, the communication could not have influenced the fairness of the report itself. Consequently, the ALJ’s refusal to invalidate the IME report does not constitute an abuse of discretion.
This conclusion is not inconsistent with our decisions holding that an IME report obtained in violation of the rules does not constitute a “finding” of impairment within the meaning of §8-42-107(8)(c). In fact, the ALJ’s decision to strike Dr. Pero’s hearing testimony is consistent with such decisions because the ALJ determined that it was Dr. Pero’s testimony, not the IME report itself, which was influenced by the violation of the rules See Acker v. Jefferson County, W.C. No. 4-201-155 (March 20, 1996).
II.
The respondents next contend that the award based on Dr. Pero’s 29 percent whole person impairment rating is not supported by substantial evidence in the record. The respondents argue that the range of motion defects reported by Dr. Pero are incredible in view of prior range of motion measurements and the testimony of Dr. Aschberger. The respondents also argue Dr. Pero’s measurements are incredible because they are inconsistent with his finding of MMI in April 1996. We find no error.
Dr. Pero’s IME rating was binding on the ALJ and the parties unless overcome by clear and convincing evidence. Section 8-42-107(8)(c). The questions of whether Dr. Pero properly applied the AMA Guides, and whether his overall rating was overcome by clear and convincing evidence, are issues of fact for determination of the ALJ. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Because the issues are factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. In applying this standard of review we must defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the evidence. Id.
Further, not every deviation from the AMA Guides requires the ALJ to find that the IME physician’s opinion is overcome by clear and convincing evidence. To the contrary, deviations from the AMA Guides constitute some evidence which the ALJ may consider in determining whether the overall “finding” of medical impairment 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).
The respondents’ arguments notwithstanding, the record contains substantial evidence to support the ALJ’s finding that Dr. Pero’s rating was not overcome by clear and convincing evidence. The range of motion measurements recorded by Dr. Pero were reported as valid under AMA Guides criteria. Thus, the fact the fact that some physicians may have obtained better measurements prior to Dr. Pero’s examination, and that Dr. Aschberger believed Dr. Pero’s measurements were not consistent with clinical observations, merely presented conflicts in the evidence for resolution by the ALJ.
Further, Dr. Pero’s failure to consult other physicians in an attempt to reconcile the range of motion measurements may have constituted a technical violation of the AMA Guides. However, the evidentiary weight to be assigned that violation was a matter within the fact-finding authority the ALJ. Neither was the ALJ required to assign greater weight to Dr. Aschberger’s opinions than those of Dr. Pero. As the ALJ pointed out, no physician besides Dr. Aschberger, who was retained and paid by the respondents, opined that the claimant was consciously misrepresenting his symptoms.
We also disagree with the respondents’ argument that the claimant’s alleged “deterioration” between the date of MMI and the date of Dr. Pero’s examination is inconsistent with Dr. Pero’s finding of MMI. Section 8-40-201(11.5), C.R.S. 1998, states that the “possibility of improvement or deterioration resulting from the passage of time shall not affect the finding of maximum medical improvement.” Thus, the mere fact the claimant’s range of motion measurements “deteriorated” after MMI does not represent a fatal contradiction in Dr. Pero’s opinion. In any event, the variation in the range of motion measurements merely represents a conflict in the evidence.
The respondents also argue that the claimant’s alleged failure to follow a post-MMI exercise program should preclude him from receiving benefits in accordance with Dr. Pero’s IME rating. In support of this proposition, the respondents cite §8-43-404(3), C.R.S. 1998, which provides for a reduction or suspension in compensation for a claimant who “persists in any unsanitary or injurious practice which tends to impair or retard recovery.”
However, this statute is in the nature of an affirmative defense which must be pled and proven. See Kersting v. Industrial Commission, 39 Colo. App. 297, 567 P.2d 394 (1977); Fankhouser v. Public Service Co., W.C. 3-772-925 (March 16, 1994). The respondents failed to raise this issue before the ALJ. Therefore, the issue was waived and we may not consider it on appeal. Kuziel v. Pet Fair, Inc., 948 P.2d 103 (Colo.App. 1997).
III.
Respondents next contend that the ALJ erred in failing to address the issue of medical benefits subsequent to maximum medical improvement. However, in his appellate brief, the claimant states that, at the time of the hearing, he “did not request medical benefits.”
Our review of the record indicates that the claimant raised the issue of medical benefits in the application for hearing, but he did not request such benefits at the time of the hearing. Respondents’ counsel advised the ALJ that she believed it was appropriate to address the issue of continuing medical benefits. However, in light of the claimant’s affirmative statement that he is not seeking continuing benefits, the issue is now moot.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 15, 1998, 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. 1998.
Copies of this decision were mailed May 27, 1999 the following parties:
Ronald Rodriguez, 1540 E. 9th St., Pueblo, CO 81001
Terminix Pest Control, P.O. Box 17018, Memphis, TN 38187-0018
Zurich Insurance Company, Attn: Chris Allen, P.O. Box 20048, Kansas City, MO 64195
Douglas A. Weddell, Esq., P.O. Box 636, Colorado Springs, CO 80901 (For Claimant)
Pattie J. Ragland, Esq., 600 17th St., #2240 South, Denver, CO 80202 (For Respondents)
BY: A. Pendroy