W.C. No. 4-313-575Industrial Claim Appeals Office.
May 20, 2002
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) which ordered payment of permanent partial disability benefits based on medical impairment of 34 percent of the whole person. The respondents argue the ALJ erred because he did not require the claimant to prove that the opinion of a Division-sponsored independent medical examination (DIME) physician concerning causation was overcome by clear and convincing evidence. The respondents also contend the ALJ was compelled to find the impairment rating of a DIME physician was overcome by clear and convincing evidence. We affirm.
Claimant sustained a compensable injury to his right upper extremity on June 12, 1996. The claimant then underwent two surgeries to repair nerve damage in the right arm. The claimant was originally placed at maximum medical improvement (MMI) on August 11, 1997, with a 27 percent upper extremity impairment rating. However, on February 4, 1999, the claimant suffered an “aggravation” of his right upper extremity condition. It is not disputed that this “aggravation” was a compensable consequence of the 1996 injury.
In September 1999 the claimant underwent another surgery involving repair of the ulnar nerve at the right elbow. On December 29, 1999, one of the treating physicians, Dr. Healey, placed the claimant at MMI within 19 percent upper extremity rating. This rating was based on impairment of the ulnar nerve and reduced range of motion in the right elbow.
On April 21, 2000, the claimant underwent a DIME, which was performed by Dr. Zimmer. Dr. Zimmer diagnosed a “right upper extremity injury with residual predominantly sensory symptoms in the distribution of the right ulnar nerve,” and exacerbation of a preexisting post-traumatic stress disorder. Dr. Zimmer opined the claimant was not at MMI because he needed additional medication to treat his “neuritic pain.” Dr. Zimmer’s report also notes the claimant complained of pain in the neck region, and also when raising the right upper extremity.
The claimant then received the treatment recommended by Dr. Zimmer. On December 6, 2000, Dr. Healey again placed the claimant at MMI with a 19 percent upper extremity rating. The claimant elected to undergo a DIME on the issue of medical impairment. Because Dr. Zimmer was no longer available, the DIME was performed by Dr. Parry. Dr. Parry’s rating was 34 percent as a whole person. In addition to rating impairment attributable to the claimant’s right elbow, Dr. Parry assessed impairment for reduced range of motion of the claimant’s shoulder, soft tissue impairment of the cervical spine, and for aggravation of the claimant’s preexisting post-traumatic stress disorder.
The respondents challenged Dr. Parry’s impairment rating. However, the ALJ found the respondents failed to overcome Dr. Parry’s rating by clear and convincing evidence. Consequently, the ALJ ordered payment of permanent partial disability benefits based on a medical impairment rating of 34 percent of the whole person.
I.
On review, the respondents first contend that ALJ erred because he did not require the claimant to produce clear and convincing evidence to overcome Dr. Zimmer’s findings concerning the cause of the claimant’s condition. The respondents argue Dr. Zimmer determined that “only the elbow was work-related,” and, therefore, the claimant was bound by this determination. We are not persuaded.
Section 8-42-107(8)(b)(III), C.R.S. 2001, provides that a “finding” of a DIME physician concerning MMI “shall be overcome only by clear and convincing evidence.” Because the issue of MMI inherently requires a determination of whether there is a causal relationship between the claimant’s condition and the industrial injury, the DIME physician’s findings concerning causation must be overcome by clear and convincing evidence. See Cordova v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA0852, February 28, 2002). Similarly, when rating permanent medical impairment, the DIME physician’s finding that a particular condition is or is not causally related to the industrial injury must be overcome by clear and convincing evidence. Section 8-42-107(8)(c), C.R.S. 2001; Cordova v. Industrial Claim Appeals Office, supra.
We agree with the ALJ that Dr. Zimmer made no express finding concerning whether or not the claimant’s injury resulted in permanent medical impairment of the cervical region and the shoulder. Dr. Zimmer determined only that the claimant’s injury-related nerve condition required additional treatment in order for the claimant to reach MMI. Although Dr. Zimmer’s DIME report also noted the existence of neck and upper extremity pain, the cause of that pain was not discussed. Indeed, Dr. Zimmer may have concluded the claimant’s upper extremity and cervical complaints were work-related, but it was unnecessary to discuss their cause because no additional treatment was likely to improve them. Alternatively, Dr. Zimmer may not have considered the cause of the claimant’s cervical and upper extremity conditions because he found one injury-related condition which was not at MMI. In any event, Dr. Zimmer’s report contains no “finding” of causation which the claimant could have challenged. (See ALJ’s comments in footnote 1 of the order).
II.
The respondents next challenge the ALJ’s finding that Dr. Parry’s impairment rating was not overcome by clear and convincing evidence. In this regard, the respondents note the claimant did not complain of shoulder or neck pain until after February 4, 1999, and the treating physicians did not diagnose any specific injury to the shoulder and cervical regions. Further, the claimant asserts Dr. Parry failed to provide specific diagnoses justifying impairment ratings for the shoulder and cervical regions, and failed to resolve conflicts in the medical records involving the diagnoses of the claimant’s condition. We are not persuaded by these arguments.
The DIME physician’s impairment rating 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 in arriving at the impairment rating, and whether the rating 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). As the ALJ correctly noted, proof that the DIME physician deviated from the rating protocols of the AMA Guides, or the applicable rules of procedure, does not require the ALJ to find the rating has been overcome by clear and convincing evidence. Rather, proof of a deviation constitutes some evidence which the ALJ may consider in determining whether the party challenging the rating has presented sufficient evidence to overcome the rating. Otero v. St. Mary Corwin Hospital, W.C. No. 4-346-007 (November 9, 1999), aff’d., Otero v. Industrial Claim Appeals Office, (Colo.App. No. 00CA0963, November 30, 2000). Indeed, as the Court of Appeals stated in its Otero opinion, treating “the deviation as evidence merely recognizes the reality that an IME opinion should not be stripped of its presumptive effect were a physician’s failure to comply strictly with the AMA Guides is either insignificant to the overall rating or can be explained, as in this case, based upon other acceptable grounds.”
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 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).
Applying these principles here, we perceive no error in the ALJ’s order. Even if Dr. Parry violated a rating protocol by failing to contact Dr. Healey to resolve any inconsistency in the medical records concerning whether or not the claimant sustained injury to the shoulder and cervical region, the ALJ was not obliged to conclude the deviation proved Dr. Parry’s rating was overcome by clear and convincing evidence. Indeed, the order reflects the ALJ was persuaded the claimant in fact suffered an injury to his shoulder and neck in connection with the February 1999 aggravation. The ALJ cited evidence the claimant received treatment for these regions. The ALJ also relied on testimony by Dr. Ryan that “Dr. Parry properly rated the shoulder and neck as secondary sites of injury and impairment.” (Findings of Fact 19, 21). Moreover, the ALJ was not persuaded that the testimony of Dr. Healey constituted clear and convincing evidence that Dr. Parry’s inclusion of shoulder and cervical impairment was incorrect. (Finding of Fact 22).
Further, we perceive no basis for interfering with the order on grounds Dr. Parry failed to give a specific diagnoses justifying the impairment ratings for the cervical region and the shoulder. Dr. Ryan explained that Dr. Parry’s rating was based on a soft tissue muscle condition affecting the neck and shoulder, and Dr. Ryan concurred in this diagnosis. Thus, there is substantial evidence to support the ALJ’s finding that the Dr. Parry’s rating was not overcome by clear and convincing evidence.
The respondents’ remaining arguments, pertaining to the dates on which the claimant reported symptoms, are purely factual in nature and relate to inferences to be drawn from the record. Again, we cannot say the ALJ’s findings are unsupported by substantial evidence in the record.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 31, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed May 20, 2002 to the following parties:
Leonard Smith, 15007 E. Carolina Pl., Aurora, CO 80012
Public Service Company of Colorado, Michelle Scholes, G. E. Young Co., 4251 Kipling St., #510, Wheat Ridge, CO 80033
Barrie G. Sullivan, Esq., 1325 S. Colorado Blvd., #405, Denver, CO 80222 (For Claimant)
Michael A. Perales, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondent)
By: A. Hurtado