W.C. No. 4-732-489.Industrial Claim Appeals Office.
March 26, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Krumreich (ALJ) dated November 3, 2009, that denied her request for conversion of an extremity rating to a whole person impairment rating. We affirm.
The claimant suffered an admitted occupational disease that resulted from her job duties inspecting and assembling parts. Dr. Ogrodnick was one of the claimant’s treating physicians. Dr. Ogrodnick diagnosed the claimant as having bilateral cumulative trauma disorder (CTD). Dr Ogrodnick assessed the claimant as having right carpal tunnel syndrome and left cubital tunnel syndrome. Dr. Ogrodnick eventually placed the claimant at maximum medical improvement and assigned 19 percent impairment for each upper extremity.
The claimant underwent a Division-sponsored independent medical examination (DIME). The DIME physician opined the claimant had bilateral cumulative trauma disorder of her upper extremities. The DIME physician opined the claimant’s impairment rating was 30 percent of the claimant’s upper extremities bilaterally. The DIME physician converted the bilateral upper extremity impairment under the AMA Guides to 33 percent whole person impairment.
Dr. Ogrodnick testified that the claimant’s symptoms that were causally related to her compensable injury were below the level of the arm at the shoulder. Dr. Ogrodnick testified that the claimant’s symptoms above the level of the arm were more likely related
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to fibromyalgia that was not caused by the claimant’s carpal tunnel or cubital tunnel syndromes. The ALJ found the opinions of Dr. Ogrodnick to be credible.
The ALJ concluded that the situs of the claimant’s functional impairment from her bilateral upper extremities was below the level of the arm at the shoulders. The ALJ further determined that the initial question of whether the claimant had sustained a scheduled injury was one of fact for his determination. The ALJ noted that while the opinions and findings of a DIME physician may be relevant to the determination of whether the claimant sustained a scheduled injury, he was not required to afford it any special weight. The ALJ further noted that it is only after a finding is made that a claimant has sustained a whole person impairment that the DIME physician’s rating becomes entitled to presumptive effect under § 8-42-107(8)(c) C.R.S. The ALJ here found the claimant had failed to prove by a preponderance of the evidence that she had sustained functional impairment above the level of the arms at the shoulders as a result of her compensable injury. The ALJ denied the claimant’s request for conversion to a whole person impairment and limited the claimant’s permanent disability to 30 percent scheduled impairment of the bilateral extremities.
The claimant argues the ALJ applied the wrong standard of proof in finding that the claimant’s upper back symptoms were not related to the compensable injury. The claimant argues that the respondents’ burden of proof was to overcome the DIME physician’s opinion regarding causation and permanent medical impairment by clear and convincing evidence.
The claimant also argues that the ALJ denied the claim for conversion based primarily on his finding that the upper back symptoms were related to fibromyalgia and not the industrial injury. The claimant argues that the DIME physician noted that the claimant had pain up into her shoulder and upper back. The DIME physician also stated that the claimant reported pain in her anterior chest wall and had limited range of cervical motion. The claimant argues that it is clear from these finding by the DIME physician and the overall DIME report that the DIME physician related the claimant’s upper back, trapezius and parascapular symptoms to the industrial injury.
The claimant contends that these conditions would entitle her to whole person impairment rather than impairment limited to the schedule. The claimant argues that because the opinion of the DIME physician would entitle her to a whole person impairment rating the ALJ erred in denying his request for conversion to a whole person impairment without the DIME opinion being overcome by clear and convincing evidence. The claimant requests that the ALJ’s order be reversed because he used the preponderance of evidence standard in determining that she failed to prove that she had
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sustained functional impairment above the level of the arms at the shoulders. We are not persuaded to interfere with the ALJ’s order.
The question of whether the claimant sustained a “loss of an arm at the shoulder” within the meaning of § 8-42-107(2)(a), C.R.S. or a whole person medical impairment compensable under § 8-42-107(8)(c), C.R.S. is one of fact for determination by the ALJ. In resolving this question, the ALJ must determine the situs of the claimant’s “functional impairment,” and the site of the functional impairment is not necessarily the site of the injury itself. Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo. App. 1996); Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo. App. 1996).
In Egan v. Industrial Claim Appeals Office 971 P.2d 664 (Colo. App. 1998) the court citing Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996) noted that whether a particular component of the claimant’s overall medical impairment was caused by the industrial injury is an inherent part of the rating process under the AMA Guides. Therefore, the Egan court determined that in order to challenge and overcome the causation conclusion by the DIME physician a party must present clear and convincing evidence. However, the Egan court further explained that the statutory scheme, requiring causation questions to be challenged through a DIME, applies only to injuries resulting in whole person impairment. The Egan court concluded that when there is a dispute concerning causation or relatedness in a case involving only a scheduled impairment, the ALJ will continue to have jurisdiction to resolve that dispute.
Here, the ALJ concluded that the situs of the claimant’s functional impairments of her bilateral upper extremities was below the level of the arm at the shoulders. Therefore, because the ALJ determined the claimant suffered only a scheduled injury the statutory scheme requiring clear and convincing evidence to challenge the DIME physician’s opinion on causation was not applicable. Egan v. Industrial Claim Appeals Office supra.
Consequently we are not persuaded that the ALJ erred by applying the wrong standard of proof by failing to require the respondents to overcome the DIME physician’s opinion by clear and convincing evidence.
Moreover, here the ALJ found that the DIME physician did not express an opinion on whether the claimant had sustained any functional impairment above the level of the arm at the shoulder. We are not persuaded by the claimant’s arguments that the DIME report compels the conclusion that the DIME physician believed that the claimant’s upper back, trapezius and parascapular symptoms were caused by the industrial injury. In our view, the ALJ’s analysis is a reasonable interpretation of the of the DIME physician’s opinions.
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We acknowledge that the DIME physician reported that the claimant had pain that went up into her upper back and parascapular trapezius area. Exhibit 2 at 4. The DIME physician further stated that the claimant’s complaints were diffuse symptoms through the upper extremities. Exhibit 2 at 3. The DIME physician noted that the claimant’s primary problems were hand and finger, particularly the dorsum of the hand. Exhibit 2 at 3. The DIME physician also noted cervical range of motion. Exhibit 2 at 4.
However, the DIME physician’s final impression was of cumulative trauma disorder of the claimant’s bilateral upper extremities. The DIME physician combined the 30 percent upper extremity impairments on both sides to convert to an 18 percent whole person bilaterally and eventual 33 percent whole person impairment.
In our opinion, the ALJ’s determination that the DIME physician did not express an opinion on whether the claimant had sustained any functional impairment above the level of the arm at the shoulder is supported by the DIME physician’s report. Exhibit 2. We must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2009. Under this standard, we are required to defer to the ALJ’s resolution of conflicts in the evidence, and plausible inferences drawn from the record Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo. App. 1999). In our opinion, the inferences drawn by the ALJ from the DIME physician’s report were plausible. Additionally the claimant failed to provide a transcript of the hearing and, therefore, we must presume that the ALJ’s factual findings are supported by the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo. App. 1988).
IT IS THEREFORE ORDERED that the ALJ’s order dated November 3, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
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JESSICA CASSIUS, COLORADO SPRINGS, CO, (Claimant).
ENTEGRIS, COLORADO SPRINGS, CO, (Employer).
SENTRY INSURANCE, Attn: MS LESLIE JOHNSON, PHOENIX, AZ, (Insurer).
LAW OFFICE OF WILLIAM ALEXANDER, JR., PC, Attn: CHARLOTTTE VEAUX, ESQ., COLORADO SPRINGS, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: CRAIG R. ANDERSON, ESQ., COLORADO SPRINGS, CO, (For Respondents).
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