W.C. Nos. 4-757-408 4-758-952.Industrial Claim Appeals Office.
September 9, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated April 21, 2010 that denied a request for PPD benefits involving a December 29, 2007 slip and fall accident bearing the W.C. No. 4-758-952. We affirm in part and reverse in part.
The claimant was involved in two industrial accidents. The claimant was first involved in a motor vehicle accident in the employer’s parking lot on March 30, 2006, which is W.C. No. 4-757-408. The claimant sustained a slip and fall accident on the employer’s premises on December 29, 2007, which is W.C. No. 4-758-952.
Eventually the claimant underwent a Division-sponsored independent medical examination (DIME). The Division of Workers’ Compensation (DOWC) appointed Dr. Bachman. The DIME physician understood he was only asked to evaluate the claimant’s condition resulting from the December 29, 2007 accident. The DIME physician agreed with the treating physician that the claimant reached MMI on April 8, 2008 and that the claimant could return to full duty work. The DIME physician agreed with the treating physician that the claimant had sustained no permanent medical impairment at MMI. However, the DIME physician determined that at the time he examined the claimant he had sustained permanent medical impairment of the cervical and lumbar regions. The DIME physician rated the permanent medical impairment of the cervical region of the claimant’s spine at 17 percent whole person impairment resulting from his December 29, 2007 industrial injury.
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The ALJ determined that the employer had overcome the DIME physician’s opinions involving MMI and cervical impairment rating by clear and convincing evidence involving the slip and fall accident of December 29, 2007. However, the ALJ determined that the employer failed to overcome the DIME physician’s lumbar impairment rating from the MVA of March 30, 2006.
The claimant requests that the matter be remanded to the ALJ for a determination of his impairment for the cervical spine relating to the December 29, 2007, W.C. No. 4-758-952 injury. The claimant does not challenge the ALJ’s determination that the claimant is at MMI, nor has the respondent appealed any portion of the ALJ’s order. The sole issue on appeal is whether the ALJ erred in determining that the respondents had overcome the DIME physician’s 17 percent cervical impairment rating relating to the December 29, 2007 claim.
Litigants bear a high burden of proof when challenging opinions rendered by a DIME physician. If a DIME physician has rendered an opinion regarding MMI or medical impairment, those opinions must be overcome by clear and convincing evidence. §§ 8-42-107(8)(b)(III), 8-42-107(8)(c), C.R.S.; Cordova v. Indus. Claim Appeals Office, 55 P.3d 186, 189 (Colo. App. 2002); Qual-Med, Inc. v. Indus. Claim Appeals Office, 961 P.2d 590, 592 (Colo. App. 1998); see also Leprino Foods Co. v. Indus. Claim Appeals Office, 134 P.3d 475, 482 (Colo. App. 2005) (“DIME physician’s opinions concerning MMI and permanent medical impairment are given presumptive effect . . . [and] are binding unless overcome by clear and convincing evidence.”).
“Clear and convincing evidence means evidence which is stronger than a mere `preponderance’; it is evidence that is highly probable and free from serious or substantial doubt.” Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 414 (Colo. App. 1995). Therefore, the party challenging a DIME physician’s conclusion must demonstrate that it is “highly probable” that the DIME impairment rating or MMI finding are incorrect. Qual-Med, 961 P.2d at 592. A party has met the burden of establishing that a DIME impairment rating and diagnosis are incorrect if the claimant has demonstrated that the evidence contradicting the DIME is “unmistakable and free from serious or substantial doubt.”Leming v. Indus. Claim Appeals Office, 62 P.3d 1015, 1019 (Colo. App. 2002).
Whether a party has met the burden of overcoming a DIME by clear and convincing evidence “is a question of fact for the ALJ’s determination.”Metro Moving Storage, 914 P.2d at 414. We must uphold the factual determinations of the ALJ if the decision is supported by substantial evidence in the record. § 8-43-301(8), C.R.S.; Christie v. Coors Transp. Co., 919 P.2d 857, 860 (Colo. App. 1995), aff’d, 933 P.2d 1330 (Colo. 1997).
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The claimant contends that the ALJ erred in finding that the 17 percent rating by the DIME physician had been overcome. In support of his argument, the claimant notes the following findings of the ALJ. Table 53II.B. of the AMA Guides allows the examiner to assign an impairment value for impairment or specific disorder of the lumbar or cervical regions of the spine, so long as the medical evidence establishes the presence of a soft tissue lesion (objective pathology), plus 6 months of medically documented pain and rigidity. The DIME physician agreed with the treating physician’s determination that the claimant sustained no permanent medical impairment at MMI because the claimant’s diagnoses failed to meet the criteria of Table 53 — only four months had passed from December 29, 2007, to the date of MMI (April 8, 2008). The DIME physician nonetheless determined on March 25, 2009 (some 11 months after MMI) that the claimant had sustained permanent medical impairment of the cervical and lumbar regions of his spine. The DIME physician noted that although his date of MMI remained unchanged his date of examination was over six months from the date of MMI and the claimant would qualify for an impairment rating based on the date of examination. Finding of Fact 8 at 3.
The claimant also cites the following additional findings in support of his argument. [t]he employer showed it highly probable that the DIME physician erred in determining that the claimant sustained permanent medical impairment of 17 percent of the whole person as a result of his cervical injury on December 29, 2007. The DIME physician agreed that the claimant’s cervical rating as of April 8, 2008 (MMI) was zero percent. The ALJ credited the testimony of Dr. Roth as persuasive in finding the following: The claimant’s condition fails to meet the criteria of Table 53 II. B because he reached MMI as of April 8, 2008, within some 4 months of the date of his injury. The determination whether a patient meets the criteria of Table 53 IIB is made at the time of MMI, and not at the time of any subsequent evaluation. The claimant thus failed to meet the criterion of six months of medically documented pain and rigidity as of the time of MMI. The DIME physician agreed that the claimant’s cervical rating as of April 8, 2008, was zero percent. The DIME physician agreed with Dr. Roth that a patient must meet the specific diagnosis criteria to obtain a rating under Table 53II.B in order to qualify for a rating for range of motion deficits. Dr. Roth persuasively testified that the claimant sustained no permanent medical impairment at the time of MMI on April 8, 2008. Finding of Fact 20 at 7. The DIME physician erred in determining that the claimant sustained permanent medical impairment of 17 percent of the whole person as a result of his cervical injury from the slip and fall of December 29, 2007. Conclusion of Law A at 9.
The claimant contends the ALJ erred because neither the AMA Guides, nor the Act requires that the six months of documented pain occur prior to MMI. The claimant, citing McLane Western Inc. Industrial Claim Appeals Office, 996 P.2d 263, (Colo. Appl. 1999),
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argues that Table 53 of the AMA Guides does not require that the documented pain occur prior to MMI. The claimant, relying o Jackson v. RBM Precisions Metal Products, W.C. No. 4-377-460 (May 15, 2000), argues that McLane Western Inc. Industrial Claim Appeals Office, supra, compels the conclusion that the ALJ was incorrect insofar as he concluded that the statutory concept of MMI is to be imported into the AMA Guides for the purposes of determining when the claimant has sustained “six months of medically documented pain under Table 53 II(B). We agree with the claimant’s argument.
In McLane Western Inc. v. Industrial Claim Appeals Office, supra, the court concluded that, for purposes of Table 53II, “the AMA Guides do not require that the documented pain occur prior to MMI.” The court recognized that MMI is a legal concept, defined by § 8-40-201(11.5), C.R.S., which serves as the “line of demarcation between temporary and permanent disability.” Thus, the court noted that an injury may produce some determinable and stable medical impairment prior to MMI, yet remain unratable under the AMA Guides because insufficient time has passed. Consequently, the court held that a DIME physician who examined the claimant more than six months after the injury did not misapply the AMA Guides by rating the claimant’s impairment under Table 53II(B), even though the claimant reached MMI within six months of the date of injury. See Jackson v. RBM Precisions Metal Products, WC No. 4-377-460 (May 15, 2000).
Here the ALJ clearly determined that the DIME physician erred in finding impairment because the claimant had reached MMI prior to the passage of the six month “threshold” contained in Table 53 II.B. As we read McLane Western Inc. v. Industrial Claim Appeals Office, supra, this is error as a matter of law. The ALJ’s decision reflects no other basis for determining that the DIME physician’s opinion on cervical impairment was overcome by the required enhanced burden of proof. Therefore, the DIME physician’s opinion must be given presumptive effect. See Qual-Med, Inc. v. Indus. Claim Appeals Office, supra; See also Leprino Foods Co. v. Indus. Claim Appeals Office, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 21, 2010 is reversed insofar as it denied the claimant’s request for permanent partial disability benefits under W.C. No. 4-758-952 involving the slip and fall accident on December 29, 2007. The order is modified to reflect that the employer shall pay the claimant permanent partial disability benefits based upon DIME physician’s rating of 17 percent of the whole person.
IT IS FURTHER ORDERED that the ALJ’s order dated April 21, 2010 is otherwise affirmed.
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INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
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ANASTACIO LOPEZ, FT. MORGAN, CO, (Claimant).
CARGILL MEAT SOLUTIONS, Attn: ESTHELA NUNEZ-SCHNEE, FORT MORGAN, CO, (Employer).
SAWAYA, ROSE KAPLAN, PC, Attn: BRITTON MORRELL, ESQ., GREELEY, CO, (For Claimant).
BLACKMAN LEVINE, LLC, Attn: TAMA L. LEVINE, ESQ., DENVER, CO, (For Respondents).
SPECIALTY RISK SERVICES, Attn: MARGARET JOHNSON, DENVER, CO, (Other Party).
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