W.C. No. 4-193-532Industrial Claim Appeals Office.
November 14, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Wheelock (ALJ), insofar as the ALJ found that a medical impairment rating issued by a Division-sponsored independent medical examiner (IME) was not overcome by clear and convincing evidence. We affirm.
The IME physician issued an eight percent whole person medical impairment rating for the injury to the claimant’s spine. The physician awarded five percent for specific disorders of the spine, and three percent for loss of lumbar motion on left lateral flexion. The IME physician testified that he did not award any additional impairment for lost range of motion because, in his opinion, the claimant did not give maximal effort on testing.
The claimant produced the reports and testimony of Dr. Young, a physician who conducted an evaluation at the claimant’s request. Dr. Young opined that the claimant had a thirteen percent whole person medical impairment. This rating was partially based on lost range of motion not rated by the Division IME physician.
The ALJ concluded that the claimant failed to overcome the Division IME physician’s rating. In support of this determination, the ALJ noted that the claimant’s own physician testified that an examiner has discretion to invalidate range of motion measurements if, in the examiner’s opinion, the patient was not putting forth maximal effort. The ALJ also stated that the claimant’s examiner failed to testify that the Division IME physician’s rating “deviated in any way” from the requirements of the American Medical Associations Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides).
On review, the claimant argues that the ALJ erred in finding that the IME physician’s rating was not overcome. The claimant points out that the IME physician examined the claimant on only one occasion, and that her physician conducted two examinations and obtained valid range of motion measurements on each occasion. The claimant also argues that the IME physician failed to comply with the AMA Guides because he did not repeat the range of motion tests after the initial examination. We are not persuaded.
Whole person medical impairment ratings must be based on the AMA Guides. Section 8-42-107(8)(c), C.R.S. 1997. If a Division-sponsored IME is obtained, that physician’s rating is binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(c).
The questions of whether the IME physician properly applied the AMA Guides, and whether his 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). In order for the ALJ to set aside the IME’s rating, the ALJ must be convinced that it is “highly probable” that the IME physician’s rating is incorrect. However, on review we must accept the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. This is a narrow standard which requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record. Metro Moving Storage Co. v. Gussert, supra.
Here, the record contains substantial evidence to support the ALJ’s determination that the claimant failed to carry her burden of proof. There was a conflict in the expert medical evidence concerning whether or not the claimant has lost more range of motion than was found by the IME physician. The ALJ was not persuaded that the evidence and testimony presented by the claimant overcame the IME physician’s opinion that most of the range of motion measurements are invalid and attributable to non-physiologic responses.
It is true that the claimant presented expert testimony which contradicted the opinions of the IME physician. However, the weight to be afforded the opinions of these competing expert medical witnesses was a matter within the province of the ALJ Metro Moving Storage Co. v. Gussert, supra.
The claimant also asserts that the IME physician failed to comply with the AMA Guides because he did not repeat the range of motion tests at a later date. In support of this proposition, the claimant cites the AMA Guides, chapter 3.3a, paragraph 4 at 79. This provision states as follows:
“If consistency requirements are not met, perform additional tests up to a maximum of six until reproducibility criteria are satisfied. If testing remains inconsistent after six measurements, consider the test invalid and reexamine at a later date or disqualify that part of the examination.”
Here, the IME physician testified that he invalidated the range of motion tests after repeating them the required six times. The claimant’s expert conceded that this action by the IME physician was authorized by the AMA Guides, but stated that a repeat test was appropriate. In our view, the ALJ properly interpreted the testimony of the claimant’s expert as a concession that the IME physician acted properly under the AMA Guides. The claimant’s expert merely expressed a preference for reexamination at a later date. In any event, the provision of the AMA Guides cited by the claimant certainly does no require repeat testing.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 29, 1997, 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. 1997.
Copies of this decision were mailed November 14, 1997
to the following parties:
Renae A. Stelitano-Gagliardi, 323 North Ave., Trinidad, CO 81082
Best Western Country Club, 3255 Main Ave., Durango, CO 81301-4248
Truck Insurance Exchange, P.O. Box 378230, Denver, CO 80237-8230
Truck Insurance Exchange, 5575 Tech Center Drive, #111, Colorado Springs, CO 80919
James A. May, Esq., 105 E. Moreno Ave., P.O. Box 2940, Colorado Springs, CO 80901-2940 (For the Claimant)
Chad Hessel, Esq., 101 North Cascade Ave., #400, Colorado Springs, CO 80903 (For the Respondents)
By: __________________________