W.C. No. 4-441-902Industrial Claim Appeals Office.
June 24, 2004
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Klein (ALJ Klein) which determined the respondent failed to overcome the 8 percent whole person impairment rating of the Division-sponsored medical examination (DIME) physician. We affirm.
The claimant alleged an occupational disease to her back from repetitive bending, lifting, pushing, pulling. The respondent denied liability. In a final order dated November 30, 2001, ALJ Coughlin found the claimant proved a compensable occupational disease to her back and awarded workers’ compensation benefits.
Ultimately, the claimant underwent a DIME. The DIME physician disagreed with ALJ Coughlin’s finding of a compensable injury. Nevertheless, the DIME physician found “ongoing lumbar symptomatology.” Therefore, the DIME physician assigned 5 percent whole person impairment rating for a specific disorder to the lumbar spine, and 3 percent for range of motion deficits in the lumbar spine. The DIME physician’s total rating for permanent medical impairment was 8 percent. The respondent applied for a hearing to overcome the DIME physician’s rating.
ALJ Klein found the DIME report was subject to conflicting inferences. However, ALJ Klein found the respondent failed to assert any specific irregularity by the DIME physician. Further, ALJ Klein determined that the DIME physician recognized that the issue of compensability was a legal determination for ALJ Coughlin. Therefore, ALJ Klein determined that the DIME physician’s disagreement with ALJ Coughlin’s finding of a compensable injury was not clear and convincing evidence that the DIME physician incorrectly rated the claimant’s permanent medical impairment from that injury. Consequently, ALJ Klein ordered the respondent to pay medical impairment benefits consistent with the DIME physician’s rating.
On review, the respondent contends ALJ Klein erroneously determined that ALJ Coughlin found the claimant proved a compensable injury to her “mid-low back.” To the contrary, the respondent contends ALJ Coughlin found the compensable injury was limited to the “thoracic” spine. As a result, the respondent argues the DIME physician clearly erred by assigning a rating for permanent impairment to the lumbar spine. We reject this argument.
Under § 8-42-107(8)(c), C.R.S. 2003, the DIME physician’s finding of medical impairment is binding unless overcome by clear and convincing evidence. “Clear and convincing” evidence has been defined as evidence which demonstrates that it is “highly probable” the DIME physician’s rating is incorrect. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998); Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995).
We must uphold the ALJ’s determination that the respondent failed to overcome the DIME physician’s opinions if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. This standard of review requires that we 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, supra.
On November 30, 2001, ALJ Coughlin found:
“[C]laimant has met her burden of proof and established that she sustained a compensable thoracic strain. The fact that Claimant has a history of prior back pain and that she may be predisposed to back pain due to her body type, does not preclude a finding of compensability, where as here, she has demonstrated by a preponderance of credible evidence that her work as a orthopedic technician caused her to experience debilitating mid — low back pain for which she sought medical attention.” (Conclusion of Law #7, Emphasis added).
Further, ALJ Coughlin ordered the respondent to provide the claimant medical benefits for “a compensable injury to her mid-low back.” (Order, #1). Under these circumstances, the record supports ALJ Klein’s finding that ALJ Coughlin found the claimant sustained a compensable “mid-low back” injury. (Finding of Fact 1).
Moreover, the evidence concerning the claimant’s medical treatment between January 2002 and August 2002 amply supports the DIME physician’s finding that the claimant’s symptomatology in the lumbar spine was a result of the “mid-low back” injury. Therefore, ALJ Klein could, and did find it was not highly probable that the DIME physician’s inclusion of a rating for permanent impairment to the lumbar spine was erroneous. Consequently, the respondent has failed to establish grounds which afford us a basis for disturbing the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 14, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Dona Halsey
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. 2003. 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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on June 24, 2004 by A.Hurtado.
Yvette K. Williams-deSilvre, 8680 E. Alameda Ave., Denver, CO 80247
Vangie Flores, Kaiser Permanente, 2500 S. Havana, Waterpark I, Aurora, CO 80014
Kaiser Permanente, c/o RSKCo, P. O. Box 17369, Denver, CO 80217-0369
James G. Anderson, Esq. and Becky L. Keil, Esq., 12101 E. 2nd Ave., #202, Aurora, CO 80111 (For Claimant)
Kent L. Yarbrough, Esq., P. O. Box 22833, Denver, CO 80222 (For Respondent)