W.C. No. 4-447-174Industrial Claim Appeals Office.
January 7, 2002
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) which awarded permanent partial disability benefits based on a medical impairment rating of 16 percent of the whole person. The respondents contend the evidence compelled the ALJ to find the medical impairment rating of the Division-sponsored independent medical examination (DIME) physician was overcome by clear and convincing evidence. We affirm.
The claimant sustained a low back injury on December 21, 1999, when she fell at work. On May 25, 2000, the treating physician placed the claimant at maximum medical improvement (MMI) with a diagnosis of “resolved lumbosacral strain and fractured coccyx.” Although the treating physician advised the claimant “there may be some aches and pains off and on in the low back,” he found the claimant did not sustain any permanent medical impairment.
On November 2, 2000, the claimant underwent a DIME. In his report, the DIME physician diagnosed the claimant with a coccygeal fracture with coccidynia, ligamentous pelvic strain with sacroiliac dysfunction, and major depression to a mild degree. The DIME physician found the claimant is entitled to a 16 percent whole person medical impairment rating. This rating included five percent impairment for a specific disorder of the lumbosacral spine under Table 53 II B of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides), thirteen percent impairment for reduced range of motion in the lumbosacral spine, and a four percent psychological impairment because of injury-related depression.
The respondents sought to overcome the medical impairment rating issued by the DIME physician. They presented the testimony of an independent medical examination (IME) physician who opined the DIME physician erred in assessing medical impairment under Table 53 of the AMA Guides. Essentially, the respondents’ IME physician opined the fractured coccyx is not rateable under Table 53 because it is not part of the lumbosacral spine. Further, the IME physician testified that because the claimant was not entitled to rating under Table 53, the DIME physician was not entitled to assess any impairment based on lost range of motion in the lumbosacral spine. Finally, the respondents’ IME physician testified the claimant’s psychological impairment could not be causally connected to the industrial injury since there was no evidence of psychological problems or treatment in the claimant’s medical records.
However, the ALJ found the respondents failed to overcome the DIME physician’s impairment rating by clear and convincing evidence. The ALJ credited the DIME physician’s hearing testimony that the claimant sustained an injury “to the entire complex” of supporting muscles including her lower back, and that a rating was proper under Table 53. The ALJ also found that the opinions of the respondents’ IME physician amounted to a “difference of opinion” with the DIME physician, and were not sufficient to establish the DIME physician’s rating was clearly erroneous or highly improbable. Consequently, the ALJ awarded medical impairment benefits based on the DIME physician’s 16 percent whole person medical impairment rating.
I.
On review, the respondents first contend the ALJ erred in finding they failed to overcome the DIME physician’s impairment rating by clear and convincing evidence. The respondents assert that “overwhelming evidence” establishes the claimant was not entitled to an impairment rating under Table 53 II B of the AMA Guides. In support of this contention, the respondents rely on the testimony of their IME physician, the failure of the treating physician to assign any medical impairment rating, and the DIME physician’s alleged concession that the claimant did not have any spinal diagnosis. We find no error.
We do not dispute the respondents’ legal argument that medical impairment ratings are to be issued in accordance with the AMA Guides. Section 8-42-101(3.7), C.R.S. 2001; § 8-42-107(8)(c), C.R.S. 2001. Once the DIME physician issues an impairment rating in accordance with the AMA Guides, the rating is binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(c); Lambert Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656 (Colo.App. 1998). It is now well established that the question of whether the DIME physician properly applied the AMA Guides in arriving at the rating, and whether the rating itself has been overcome by clear and convincing evidence, are issues of fact for determination by the ALJ. McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo.App. 1999). In order to find that a DIME physician’s rating has been overcome by clear and convincing evidence, the ALJ must find that it is “highly probable” the rating was incorrect. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
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. 2001. This standard of review requires us to review 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 Storage Co. v. Storage Co. v. Gussert, supra. Insofar as an individual medical expert’s testimony contains inconsistencies, the ALJ may resolve the inconsistency by believing part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). Further, the relative weight and credibility to be assigned the opinions of competing medical experts is a matter for determination by the ALJ. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The respondents’ assertion notwithstanding, the record contains substantial evidence to support the ALJ’s finding that they failed to overcome the DIME physician’s rating by clear and convincing evidence. The testimony of a DIME physician is to be considered together with the initial report as part of the DIME physician’s finding of medical impairment for purposes of § 8-42-107(8)(c). Lambert Sons, Inc. v. Industrial Claim Appeals Office, supra. Here, the DIME physician testified that although his report did not contain a specific diagnosis for purposes of Table 53 of the AMA Guides, the claimant was entitled to a rating because she sustained permanent injury to the ligaments and muscles of the lumbosacral spine, and it was impossible to separate this injury from the injuries to the coccyx and sacrum. (Tr. p. 75). Indeed, the DIME physician testified the sacrum, which the claimant injured, is “an integral part of the lumbar spine’s mechanism.” (Tr. p. 57). In support of this opinion the DIME physician pointed out that the treating physician had diagnosed a lumbosacral strain and treated the claimant for this condition. Although there were some inconsistencies between the DIME physician’s testimony and the report which he issued following his examination, the ALJ implicitly resolved these inconsistencies in favor of the claimant. (Findings of Fact 4 and 5).
Under the circumstances, we may not substitute our judgment for that of the ALJ concerning the weight and credibility of the competing medical opinions. As the ALJ found, the respondents’ IME physician disagreed with the DIME physician concerning the applicability of Table 53. However, in light of the DIME physician’s testimony and other evidence indicating a lumbosacral injury, we cannot say the ALJ erred as matter of law in finding the respondents failed to overcome the DIME physician’s rating.
II.
The respondents next contend the ALJ erred in finding they failed to overcome the DIME physician’s rating with respect to mental impairment. The respondents rely on the absence of medical documentation indicating the claimant complained of or received treatment for psychological problems prior to undergoing the DIME in November 2000. Thus, in accordance with the opinion of their IME physician, the respondents argue the evidence does not support a finding that any psychological condition observed by the DIME physician was caused by the industrial injury. We find no error.
The finding of a DIME physician that a particular component of the claimant’s impairment was caused by the industrial injury is binding unless overcome by clear and convincing evidence. Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998). As before, the question of whether the DIME physician’s finding of causation has been overcome is one of fact for the ALJ. Consequently, we must defer to the ALJ’s determination if supported by substantial evidence Qual-Med, Inc. v. Industrial Claim Appeals Office, supra.
Here, the DIME physician reported that during his examination the claimant was “clearly and overtly depressed.” The claimant gave a history of frequent crying, withdrawal, and experiencing periods of anger and rage. The DIME physician opined the claimant was suffering chronic pain and, as a result, was developing major depression of mild degree.
It is true the records of the treating physician did not reflect the claimant reported depression, or that she was treated for this condition. However, the treating physician also testified that he did not ask the claimant questions which might have revealed the presence of depression. Moreover, the record does not contain any evidence of non-industrial factors which might explain the symptoms of depression observed by the DIME physician. Thus, the ALJ was certainly not required to conclude that the respondents overcame the DIME physician’s opinion that the injury caused depression and consequent impairment.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 20, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Bill Whitacre
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, 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. 2001. 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 decision were mailed January 7, 2002 to the following parties:
Amalia Rodriguez, P. O. Box 110484, Aurora, CO 80042-0484
Aurora Public Schools, 1085 Peoria St., Aurora, CO 80011
Christine Hoppe and Sara Wood, Adams-Arapahoe School District 28J, 15701 E. 1st Ave., #109, Aurora, CO 80011
Kenna Hardenbrook, OHMS, P. O. Box 173682, Denver, CO 80217-3682
Janie C. Castaneda, Esq., 1120 Lincoln St., #703, Denver, CO 80203 (For Claimant)
Anne Smith Myers, Esq., and Benjamin E. Tracy, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210 (For Respondents)
BY: A. Pendroy