W.C. No. 4-509-526Industrial Claim Appeals Office.
March 13, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Coughlin (ALJ) which found the claimant failed to overcome the impairment rating of the Division-sponsored independent medical examination (DIME) physician. The claimant argues that her testimony, and that of Dr. Harder, established that the DIME physician improperly rated the claimant’s lumbar spine condition. We affirm.
The claimant sustained a back injury on November 16, 2000, when she was struck by some falling boxes. On April 24, 2001, after a course of conservative treatment, the treating physician placed the claimant at maximum medical improvement with a zero percent impairment rating. The claimant requested a DIME.
In a report dated January 14, 2002, the DIME physician opined the claimant did not sustain any permanent impairment. The DIME physician reviewed the claimant’s medical history and noted “inconsistencies” between the claimant’s pain complaints and objective findings, and the fact that the claimant underwent a functional capacities evaluation which was “inconsistent” and suggestive of “functional problems.” Under these circumstances, the DIME physician opined the claimant did not sustain any ratable impairment under Table 53 of the AMA Guides. Because the claimant had no impairment under Table 53, the DIME physician did not perform range of motion measurements.
The claimant sought to overcome the DIME physician’s rating through the testimony of Dr. Harder. Dr. Harder opined that under Table 53 the claimant sustained a 5 percent rating for a lumbar disc injury, plus 11 percent impairment for reduced range of motion. Thus, Dr. Harder rated the claimant’s combined impairment as 15 percent of the whole person. Dr. Harder opined the DIME physician conducted an inadequate examination and failed to comply with the AMA Guides because he did not perform range of motion measurements on the claimant’s lumbar spine. (Tr. P. 18).
The ALJ concluded the claimant failed to overcome the DIME physician’s impairment rating by clear and convincing evidence. The ALJ found that although it was “unclear” if the DIME physician performed the rating in “complete accord” with the AMA Guides, the claimant’s evidence was insufficient to overcome the DIME physician’s rating. The ALJ further stated that the pertinent conflicts in the evidence were resolved in the respondent’s favor.
On review, the claimant contends the ALJ was compelled to find the testimony of Dr. Harder was sufficient overcome the DIME physician’s rating by clear and convincing evidence. The claimant contends Dr. Harder’s testimony establishes she sustained ratable impairment under Table 53 of the AMA Guides based on 6 months of medically documented pain and rigidity with or without muscle spasm. Further, the claimant asserts the evidence establishes the DIME physician failed to comply with the AMA Guides because he did not conduct range of motion measurements of the lumbar spine before assigning the impairment rating. Finally, the claimant contends the ALJ’s findings are insufficient because they do not detail the claimant’s testimony and that of Dr. Harder. We find no error.
Section 8-42-107(8)(c), C.R.S. 2002, provides that impairment ratings must be determined in accordance with the AMA Guides, and the DIME physician’s finding concerning the claimant’s impairment rating “shall be overcome only by clear and convincing evidence.” The questions of whether the DIME physician properly applied the AMA Guides, and whether the impairment 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). 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. 2002. 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).
It is true, as the claimant argues, that Dr. Harder opined the claimant’s medical records revealed pain and rigidity sufficient to satisfy the Table 53 criteria. However, the DIME physician and the treating physician disagreed based on the claimant’s inconsistent reports of pain, sub-optimal effort on the functional capacities examination, and the presence of signs indicative of non-physiologic pain.
As noted in Wackenhut Corp. v. Industrial Claim Appeals Office, 17 P.3d 202 (Colo.App. 2000), the AMA Guides require the rating physician to conduct a clinical and historical evaluation of the claimant’s health status and compare the results to the rating criteria contained in the AMA Guides. The respondent correctly argues the DIME physician’s evaluation of the claimant and her medical history led the DIME physician to conclude the inconsistencies in the claimant’s medical records failed to establish “medically documented pain and rigidity” which would justify a rating under Table 53. The fact that Dr. Harder testified to the contrary created a factual conflict which the ALJ explicitly resolved in the respondent’s favor. Consequently, there is no basis for interfering with the order. Cf. Lopez v. Oasis Outsourcing, Inc., W.C. No. 4-416-822
(January 8, 2001) (claimant failed to overcome DIME physician’s zero percent rating where DIME testified the claimant’s medical records were too inconsistent to support a rating under Table 53).
Neither was the ALJ required to conclude the DIME physician’s rating was erroneous because he did not perform range of motion measurements as part of the examination. Although Dr. Harder’s testimony contains some internal inconsistences, he did admit it was possible to detect rigidity without range of motion measurements, and that impairment based on range of motion impairment is not to be assigned unless the claimant receives a Table 53 rating. (Tr. Pp. 49, 51). In light of this testimony, the ALJ was not compelled to conclude the DIME physician deviated from the AMA Guides, or if he did, that the deviation materially impacted the rating. Moreover, the DIME physician’s rating was corroborated by the treating physician.
We perceive no error based on the ALJ’s failure to give a detailed account of the claimant’s testimony and the testimony of Dr. Harder, or the ALJ’s failure to explicitly discredit the testimony. The ALJ is not held to a crystalline standard in expressing findings of fact, and evidence contrary to the ALJ’s findings is considered to have been rejected. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Here, we understand the ALJ to have found the testimony of the claimant and Dr. Harder was not sufficiently persuasive to overcome the heavy burden imposed on the party seeking to overcome the DIME physician’s rating. This is true because the ALJ resolved conflicts in the evidence against the claimant. Therefore, substantial evidence in the record supports the ALJ’s conclusion, and the “exceedingly narrow scope” of our review prohibits us from reweighing the evidence and reaching a different conclusion. Metro Moving and Storage Co. v. Gussert, 914 P.2d at 415.
Finally, we reject the claimant’s assertion that the ALJ implicitly found the DIME physician violated the AMA Guides. To the contrary, the ALJ found the claimant failed to prove any violation sufficient to impact the DIME physician’s rating.
Insofar as the claimant makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 3, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
NOTICE This Order is final unless an action to modify or vacate this Order iscommenced 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. 2002. The appealing party mustserve a copy of the petition upon all other parties, including theIndustrial Claim Appeals Office, which may be served by mail at 1515Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed March 13, 2003 to the following parties:
Victoria Villareal, 15093 E. 11th Ave., Aurora, CO 80011
K-Mart, 3100 W. Big Beaver Rd., Troy, MI 48084-3163
K-Mart, P. O. Box 66749, St. Louis, MO 63166-6749
Susan Heil, Cambridge Integrated Services Group, Inc., P. O. Box 6111, Covina, CA 91723
Thomas J. Roberts, Esq., 940 Wadsworth Blvd., 4th Floor, Lakewood, CO 80214 (For Claimant)
Stacy J. Tarler, Esq., 1720 S. Bellaire St., #310, Denver, CO 80222-4316 (For Respondent)
By: A. Hurtado