W.C. No. 4-309-642Industrial Claim Appeals Office.
March 5, 1998
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which required them to pay temporary and permanent disability benefits. We affirm.
On May 28, 1996, the claimant suffered a compensable injury, and was treated by Dr. Jensen and Dr. Shure. The claimant testified that as a result of the injury he experienced neck and back pain. Dr. Jensen diagnosed the claimant as suffering from a “cervical, thoracic and lumbar sprain with somatic dysfunction.”
The claimant returned to work for the employer until July 25, 1996, when he was discharged from his employment. On November 8, 1996, Dr. Shure restricted the claimant from lifting over 20 pounds and prolonged bending at the waist. On December 18, 1996, Dr. Shure placed the claimant at maximum medical improvement (MMI) with no permanent impairment. The claimant remained unemployed from July 25, 1996, through December 18, 1996.
Thereafter, Dr. Pham conducted a Division-sponsored independent medical examination (IME) under the provisions of §8-42-107(8)(c), C.R.S. 1997. Dr. Pham determined that the claimant sustained permanent medical impairment of 17 percent of the whole person due to specific disorders of the cervical and lumbar spines and impaired range of motion. The rating was based upon page 80, Table 53, of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides). Part II(B) of Table 53 applies to impairment from “soft-tissue lesions,” which are “unoperated” with “a minimum of six months of medically documented pain and rigidity with or without muscle spasm and none to minimal degenerative changes on structural tests.”
The ALJ found that the respondents failed to sustain their burden to overcome Dr. Pham’s medical impairment rating “by clear and convincing evidence.” Consequently, the ALJ ordered the respondents to pay permanent partial disability benefits in accordance with Dr. Pham’s medical impairment rating.
I.
Relying on the opinions of Dr. Shure, the respondents contend that there is substantial evidence in the record that the industrial injury did not cause the claimant to sustain “soft-tissue lesions” in the cervical and lumbar areas of the spine. Therefore, the respondents argue that the ALJ erroneously determined that they failed to overcome Dr. Pham’s rating. We disagree.
It is well established that the IME physician’s medical impairment rating is binding unless overcome by “clear and convincing evidence.” Section 8-42-107(8)(c); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Clear and convincing evidence is evidence which is stronger than a preponderance, is unmistakable, and is free from serious or substantial doubt. DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318
(1980). Therefore, the party challenging the opinions of the IME physician must produce evidence which shows that it is “highly probable” the IME physician’s findings are incorrect.
The question of whether the IME physician’s rating has been overcome by “clear and convincing evidence” is a factual matter for resolution by the ALJ. Metro Moving Storage Co. v. Gussert supra. Similarly, whether the IME physician properly applied the AMA Guides in arriving at the claimant’s impairment rating is a question of fact. Metro Moving Storage Co. v. Gussert, supra. We may not interfere with the ALJ’s resolution of these issues if his determinations are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. In applying this standard, we must view the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and the plausible inferences he drew from the evidence. Consequently, the scope of our review is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert, 914 P.2d at 415.
In this case, there was a direct conflict between Dr. Shure and Dr. Pham concerning the nature and extent of the claimant’s permanent impairment and the proper application of the AMA Guides. The ALJ resolved the conflict in favor of Dr. Pham, who testified that the claimant’s medical records and physical examination supported the diagnosis of soft tissue lesions in the cervical and lumbar spines. Dr. Pham also testified that the lesions are evidenced by ” muscle spasms in [the claimant’s] neck” and “low back tenderness to percussion.” (Pham depo. p. 12). Further, Dr. Pham opined to a reasonable degree of medical probability that the lesions were caused by the industrial injury. (Pham depo. p. 13).
The ALJ also determined that Dr. Pham’s opinions were supported by the opinions of Dr. Jensen. In a report dated June 17, 1996, Dr. Jensen diagnosed the claimant as suffering from “multiple reverse cervical lesions.”
Moreover, the ALJ found that Dr. Pham’s diagnosis was supported by Dr. Shure’s treatment. For example, Dr. Shure prescribed muscle relaxants to treat muscle spasms. Dr. Shure also prescribed soft cervical and soft lumbar collars for the claimant to wear at work. (Shure depo. pp. 30, 33). Under these circumstances, we may not say that the ALJ erred in crediting Dr. Pham’s opinions. See Halliburton Services v. Miller, 720 P.2d 571
(Colo. 1986) (ALJ’s credibility determinations binding unless the credited testimony is rebutted by such hard, certain evidence that it would be an error as a matter of law to believe the testimony).
The ALJ was also persuaded that Dr. Pham conducted his IME in “strict accordance” with the AMA Guides. In support, the ALJ credited Dr. Pham’s testimony that the AMA Guides require the use of an inclinometer to measure a patient’s range of motion. (Pham. depo. pp. 17, 19, 20). In view of Dr. Shure’s admission that he did not use an inclinometer to test the claimant’s range of motion, the ALJ could reasonably infer that Dr. Shure’s opinions were insufficient to establish that it is highly probable Dr. Pham incorrectly rated the claimant’s permanent impairment. (Shure depo. p. 35).
Nevertheless, the respondents contend that Dr. Pham’s rating is incorrect as a matter of law, because it is inconsistent with the language in § 8-42-107(8)(c), which provides that:
“For purposes of determining levels of medical impairment, the physician shall not render a medical impairment rating based on chronic pain without anatomic or physiologic correlation. Anatomic correlation must be based on objective findings.”
The respondents contend that there is no objective evidence to support a physiologic correlation between the industrial injury and the claimant’s disability. Again, we disagree.
We have previously held that the requirement for anatomic or physiologic correlation only applies where the claimant is seeking permanent partial disability benefits based upon chronic pain Fenton v. Provenant Health Providers, W.C. No. 4-131-871, July 9, 1996. In Fenton, we held that the requirement was not applicable where the claimant sought benefits based upon urinary, sexual and bowel dysfunction, not chronic pain. We adhere to our prior conclusion.
Here, the ALJ found that the claimant’s permanent medical impairment is due to specific disorders in the cervical and lumbar areas of the spine and not chronic pain. Therefore, the ALJ’s findings support the conclusion that the statutory requirements for anatomic or physiologic correlation are not applicable.
In any case, Dr. Pham’s rating was based upon muscle spasms, tenderness in the low back and restricted range of motion measurements. Thus, we agree with the ALJ that the record contains evidence of an anatomic and physiologic correlation between the claimant’s injury and his disability. See Myskiw v. Tascor/Norrell Corp., W.C. No. 4-222-917, July 21, 1997; Chavez v. J.C. Penney, W.C. No. 4-153-815, March 22, 1995.
The respondents remaining arguments on this issue essentially require us to reweigh the evidence on appeal. We have no authority to do so. See Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992). Consequently, the respondents have failed to establish grounds which afford us a basis to interfere with the ALJ’s conclusion that the claimant is entitled to permanent partial disability benefits based upon 17 percent whole person impairment.
II.
On the issue of temporary disability, the ALJ found that at the time the claimant was discharged from his employment he was physically unable to perform the duties of his regular employment because Dr. Shure restricted him from wearing a hard hat more than four hours a day, and prescribed braces for him to wear at work. The ALJ’s findings also reflect a determination that the additional restrictions imposed by Dr. Shure on November 8, 1996, created a further impediment to the claimant’s ability to find employment within his physical limitations. Therefore, the ALJ required the respondents to pay temporary total disability benefits from November 8, 1996 to December 18, 1996.
To recover temporary disability benefits a claimant must establish a causal connection between the industrial injury and the temporary loss of wages. Section 8-42-103(1), C.R.S. 1997. To sustain this burden the claimant must first prove that the effects of the injury temporarily prohibit him from performing his regular employment. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995).
The respondents contend that when Dr. Shure examined the claimant on November 8, 1996, he found no pathology for the claimant’s pain, and that Dr. Shure only imposed work restrictions after being asked to do so by the claimant. Accordingly, the respondents argue that Dr. Shure’s records do not support a finding that the claimant was medically restricted from performing the duties of his regular work during the disputed period. We are not persuaded.
The question of whether the treating physician has medically restricted the claimant from performing his regular employment is a factual determination. Herrera v. Thompson School District, W.C. No. 4-114-576, May 18, 1994. Consequently, we are bound by the ALJ’s plausible interpretation of the evidence.
Notwithstanding the respondents’ arguments, the ALJ’s finding that Dr. Shure imposed additional medical restrictions on November 8 is a plausible interpretation of Dr. Shure’s testimony. When asked why he medically restricted the claimant from lifting over 20 pounds and prolonged bending on November 8, 1996, Dr. Shure testified that the claimant complained of increased pain in his neck and low back and numbness in his left arm and legs. (Shure depo. p. 21). Dr. Shure stated that when a patient reports increased pain he gives the patient “the benefit of the doubt,” even if he cannot find anything wrong with him, and imposes restrictions against heavy work to avoid making the condition worse. (Shure depo. p. 21). Therefore, we reject the respondents’ contention that the claimant failed to prove that he was “disabled” between November 8 and December 18, 1996.
Furthermore, in PDM the court held that when a claimant is “subsequently terminated from the employment during which the injury occurs, an initial determination must be made as to whether the termination was for fault.” If “at fault,” the claimant’s termination from employment severs the causal connection between the injury and the subsequent wage loss. The claimant is then precluded from receiving further temporary disability benefits unless he reestablishes the requisite causal connection by proving that the industrial injury contributed “to some degree” to his wage loss after the termination.
Contrary to the respondents’ assertion, the ALJ found that the claimant was medically restricted from performing his regular employment between July 25 and November 8, 1996. Because this finding is supported by the record, it must be upheld on review See (Tr. p. 23).
The ALJ also implicitly determined that the claimant was “at fault” for the loss of modified employment on July 25, 1996. Nevertheless, the ALJ found that the claimant’s subsequent inability to find employment within his physical restrictions was heightened by the additional restrictions imposed by Dr. Shure on November 8, 1996. Under these circumstances, the ALJ could reasonably infer that the industrial injury contributed “to some degree” to the claimant’s subsequent unemployment. Therefore, the ALJ did not err in awarding temporary disability benefits for the period November 8, 1996 to December 18, 1996. See Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996), (temporary disability benefits only precluded when the injury “plays no part” in the wage loss).
IT IS THEREFORE ORDERED that the ALJ’s order dated September 26, 1997, 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, 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed March 5, 1998 to the following parties:
Daniel D. Welker, Jr., P.O. Box 346, Eckert, CO 81418
Ms. Robin Bogue, Bogue Construction, Inc., P.O. Box 400, Fruita, CO 81521
Sundee Sweet, TIG Insurance Company, P.O. Box 17005, Denver, CO 80217
Gregg Van De Mark, Esq., P.O. Box 4848, 225 North Fifth St., Ste. 1010, Grand Junction, CO 81502 (For the Claimant)
Richard A. Bovarnick, Esq. Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., Ste. 400 Denver, CO 80227 (For the Respondents)
By: ________________________________