W.C. No. 4-303-227Industrial Claim Appeals Office.
April 28, 1998
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Gandy (ALJ), which denied and dismissed her claim for permanent partial disability benefits based on impairment of the whole person. We affirm.
The ALJ found that the claimant sustained a compensable back injury on July 5, 1996. On December 12, 1996, the treating physician, Dr. Charbonneau, placed the claimant at maximum medical improvement (MMI) and found that she had no rateable medical impairment.
The claimant sought a Division-sponsored independent medical examination (IME), which was performed by Dr. Josephs. In a report dated May 6, 1997, Dr. Josephs opined that the claimant has an overall six percent whole person medical impairment as a result of the injury. Dr. Josephs concluded that, under Table 53 (II)(B) of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides) the claimant has a five percent whole person impairment for an unoperated soft tissue lesion with six months of medically documented pain. In support of this finding, Dr. Josephs noted the claimant had tenderness over the sacroiliac joints bilaterally, the sciatic notch bilaterally, and over the inner spinous ligament at L4-L5 and L5-S1 levels. He also noted some “soft tissue spasm” in the paravertebral muscles. Further, Dr. Josephs added one percent impairment for loss of range of motion in lumbar extension.
At the hearing, the respondents called Dr. Charbonneau as a witness. Dr. Charbonneau testified that in order to rate the spine under the AMA Guides the claimant must evidence a “diagnosis-based impairment.” Dr. Charbonneau opined the claimant does not meet this criterion because her complaints of pain are consistent with a psychological rather than a physiological cause, and because diagnostic studies including x-rays, MRI, and bone scan were essentially normal. Dr. Charbonneau added that since the claimant has no diagnosis-based impairment, it was improper for Dr. Josephs to assess any impairment for lost range of motion. (Tr. pp. 26-33).
Dr. Charbonneau also testified that the claimant is suffering from a “chronic pain syndrome.” However, he opined that this syndrome is attributable to the claimant’s preexisting personality and anxiety disorders. Further, he indicated that no rating could be assigned for this condition because it is not “anatomically based.” (Tr. p. 31).
Under these circumstances, the ALJ found that the rating of the Division IME was overcome by clear and convincing evidence, and the claimant is not entitled to any benefits based on medical impairment. In support, the ALJ found that the overwhelming evidence supports Dr. Charbonneau’s opinion that the claimant’s pain is generated by “non-work related psychological factors,” and not by the industrial injury. The ALJ also stated there were “no objective findings” to support the conclusion that the claimant’s pain has an anatomic or physiological basis.
On review, the claimant contends the record does not support the ALJ’s finding that the IME rating of Dr. Josephs was overcome by clear and convincing evidence. The claimant argues that, contrary to the ALJ’s order, the IME report of Dr. Josephs reflects “objective findings” because the claimant reported pain in the sacroiliac joints and exhibited muscle spasms. The claimant points out that Dr. Charbonneau himself admitted that these conditions constitute “objective findings.” (Tr. p. 36). Consequently, the claimant reasons that there is a mere difference of opinion between physicians, and that this difference is insufficient to constitute “clear and convincing evidence.” We disagree with these arguments.
Section 8-42-107(8)(c), C.R.S. 1997, provides that the medical impairment rating of the Division IME physician may be overcome only by clear and convincing evidence. The statute further provides that a physician may not render “a medical impairment rating based on chronic pain without anatomic or physiologic correlation.” See also, § 8-42-101(3.7), C.R.S. 1997. The question of whether the Division IME physician has properly applied the AMA Guides, and the ultimate question of whether the rating has been overcome by clear and convincing evidence, are issues of fact for determination by the ALJ. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Consequently, we must uphold the ALJ’s determination of these issues if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997.
Application of the substantial evidence test requires that we defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. In this regard, it is for the ALJ to assess the relative weight of expert medical testimony. Metro Moving Storage Co. v. Gussert, supra; Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Further, the mere fact that a medical opinion contains some inconsistencies does not prohibit an ALJ from crediting that portion of the opinion which the ALJ determines is credible. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
Here, Dr. Charbonneau did not deny that Dr. Josephs reported certain “objective findings,” including pain over joints and muscle spasms. (Tr. p. 36). However, Dr. Charbonneau is steadfast in his opinion that these “signs” don’t rise to the level of a “diagnosis-based impairment” for purposes of rating the claimant’s spinal impairment under the AMA Guides. Instead, Dr. Charbonneau’s opinion is that the claimant’s pain cannot be attributed to any anatomical abnormality because of her inconsistent complaints of pain, and the absence of abnormal findings on diagnostic tests. Further, Dr. Charbonneau was persuaded that the claimant’s pain emanates from non-work-related psychological problems diagnosed by Dr. Burns. (Tr. pp. 32-33).
Under these circumstances, there is more than a mere “difference of opinion” between Dr. Charbonneau and Dr. Josephs. The ALJ cited the evidence and testimony which he found persuasive, and we cannot say he erred in doing so. Metro Moving Storage Co. v. Gussert, supra. The findings support the conclusion that the claimant has no rateable impairment under the AMA Guides, and that her “chronic pain has no anatomic or physiologic correlation.”
We have also considered the claimant’s argument that the record does not support the ALJ’s finding that the claimant did not have six months of medically documented pain. However, we understand the ALJ to have found that, although the claimant’s pain is documented in the medical records, it is of no legal significance because it is not the product of a “diagnosis-based impairment.”
IT IS THEREFORE ORDERED that the ALJ’s order dated August 16, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed April 28, 1998 to the following parties:
Gloria E. Silva, 615 26th St., #19, Greeley, CO 80631
Kathy L. and Michael E. Egan, Express Temporary Services, 1135 8th Ave., Greeley, CO 80631
Colorado Compensation Insurance Authority, Curt Kriksciun, Esq. (Interagency Mail)
Douglas Thomas, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701 (For the Respondents)
Sean Kendall, Esq., 1942 Broadway, Ste. 403, Boulder, CO 80301 (For the Claimant)
By: __________________________________________________