W.C. No. 4-772-353.Industrial Claim Appeals Office.
February 26, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated September 24, 2009, that determined the respondent had overcome the Division-sponsored independent medical examination (DIME) physician’s opinion on permanent medical impairment and ordered the respondent to pay the claimant permanent partial disability (PPD) benefits based on an impairment of five percent of the whole person. We affirm.
The claimant sustained an industrial injury to her low back on March 2, 2008. Dr. Chan treated the claimant for her injury and placed her at maximum medial improvement on September 9, 2008. Dr. Chan assessed the claimant’s permanent medical impairment as five percent of the whole person, based on the AMA Guides to the Evaluation of Permanent Impairment (AMA Guides). The respondent filed a Final Admission of Liability in accordance with Dr. Chan’s assessment. The claimant subsequently underwent a DIME. The DIME physician determined that the claimant’s overall permanent impairment rating was 19 percent whole person. The DIME physician relied upon a range of motion measurements made by a physical therapist retained by the DIME physician. The range of motion measurements made by the physical therapist were dramatically different from the measurements found by the claimant’s treating physicians made during the course of her treatment. The ALJ found that the DIME physician’s impairment rating insofar as it was based on a loss of range of motion was incorrect for a number of reasons. The ALJ concluded that the respondent had met its burden of proof, by clear and convincing evidence, and that the DIME physician’s opinion on permanent impairment was wrong. The ALJ therefore ordered the respondent to pay PPD benefits based upon the five percent whole person impairment as assessed by the treating physician. The claimant appealed the ALJ’s order.
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Section 8-42-107(8)(c), C.R.S. 2009, provides that 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).
The question whether the claimant has overcome the DIME by clear and convincing evidence is one of fact for the ALJ’s determination Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). This is true despite the elevated standard of proof required to overcome a DIME: “[I]rrespective of whether the standard of proof at the administrative adjudicatory level of proceedings is clear and convincing, beyond a reasonable doubt, or merely a preponderance of the evidence, it is solely for the trier of fact to determine the persuasive effect of the evidence and whether the burden of proof has been satisfied.” Id., 914 P.2d at 414. Therefore, the standard of review remains whether the ALJ’s findings of fact are supported by substantial evidence in the record. Id.; § 8-43-301(8), C.R.S. 2009. Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, supra. This standard of review is deferential and the scope of our review is “exceedingly narrow.”Metro Moving Storage Co. v. Gussert, supra.
The claimant first contends that the ALJ erred in concluding that the DIME was required to perform personally the range of motion testing associated with his examination. The claimant argues, based on the testimony of the DIME physician, that the Division of Workers’ Compensation only recommended but does not necessarily require that the physician actually do the range of motion impairment rating.
We are not persuaded that the ALJ determined that if a DIME physician fails to perform his own range of motion impairment measurements his opinion must necessarily have been overcome by clear and convincing evidence. On the issue of the range of motion testing, the ALJ made the following uncontested findings of fact. The DIME physician testified that he did not measure the claimant’s range of motion because he did not know how to measure range of motion. Instead, the DIME physician had a physical therapist conduct the testing. The DIME physician agreed that the difference between Dr. Chan’s finding of no loss or range of motion and the physical therapist’s measurement of 15 percent whole person was significant. The findings of normal range of motion were replicated in repeated examinations during the course of the claimant’s treatment and changed dramatically only with the measurements made by the DIME physician’s physical therapist.
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The AMA Guides provides that if the current findings are not in substantial accordance with the information of record, the appropriate course is to undertake further clinical evaluation to resolve disparities and determine the individual’s present status. Dr. Watson, who performed an independent medical examination for the respondent, testified that the AMA Guides require the range of motions tests must demonstrate not only internal validity, but external validity as well. Dr. Watson opined that where the findings are inconsistent between examiners, the current examiner must investigate the reasons for the disparity and attempt to resolve the disparity. Dr. Watson opined that the DIME physician made not attempt to resolve the disparity. Dr. Watson testified that the DIME physician’s permanent medical impairment rating was not reliable because the DIME physician was neither qualified to monitor the range of motion tests and because he failed to investigate the disparity between the treating physician’s test results and the results of the physical therapist.
The ALJ reasoned that while a patient might be able to manipulate the measurements such that they indicated less ability to move than really existed, it would be difficult to explain how test results could incorrectly show the opposite, which would be that the patient demonstrated more range of motion than she actually had. The ALJ determined that based on logic alone the tests of the treating providers here were more reliable. The ALJ also determined that the claimant reported that she was having muscle spasms at the time she underwent range of motion testing by DIME physician’s physical therapist. According to the AMA Guides, measurements should be taken under such conditions for comparison purposes only and repeated a second time after the spasm has resolved.
From a review of the ALJ’s findings and conclusions as noted above, we do not read his order as determining as a mater of law that the DIME physician was required to perform personally the range of motion testing associated with his examination. Rather the ALJ considered this factor among others in determining whether the DIME physician’s opinion had been overcome. In doing so, the ALJ also noted a portion of the Division of Workers’ Compensation “Impairment Rating Tips.” In relevant portion the Division’s rating tip states that:
DIME Physicians Must Perform Complete Assessments and Exams, including All Applicable Measurements: As a Division Independent Medical Examiner you are required to perform your own examination of the claimant and ensure that all required measurements are performed and documented on the appropriate worksheets. If you utilize another medical professional (such as a physical therapist) to perform range of motion measurements or other specialized tests and assessments (such as an
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audiogram), you are responsible for ensuring that the medical professional performs the assessments in accordance with the AMA Guides and other professional standards.
In our view, the ALJ in determining whether the DIME physician’s opinion had been overcome by clear and convincing evidence properly considered the Division’s rating tip from which a plausible inference may be drawn that the DIME physician’s opinion was incorrect. Further, whether the DIME physician properly applied th AMA Guides in arriving at a rating is an issue of fact for the ALJ. McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo. App. 1999). Proof of a deviation from the AMA guides and the Division’s rating protocols such as found to have occurred here, constitutes some evidence, which may consider in determining whether the challenge to the rating should be sustained Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003); Almanza v. Majestic Industries, W.C. No. 4-490-054 (Nov. 13, 2003); Smith v. Public Service Company of Colorado, W.C. No. 4-313-575 (May 20, 2002). Therefore, we are not persuaded that the ALJ committed reversible error.
The claimant next argues that the DIME physician testified that he thought the claimant’s range of motion test was valid and therefore he was not required to do anything else. The claimant argues that this testimony was uncontroverted. However as noted above there was substantial evidence supporting the ALJ’s determination that the DIME physician’s opinion on permanent impairment was wrong to the extent that it was based on loss of range of motion. Section 8-43-301(8). This included evidence that the DIME physician deviated from the AMA Guides and other rating protocols. Therefore, we are not persuaded to interfere with the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 24, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
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LUCIA CAPRITTA, 19249 EAST 22ND DRIVE, AURORA, CO, (Claimant).
KING SOOPERS, INC., 18605 E 48TH AVENUE, DENVER, CO, (Employer).
IRWIN BOESEN, PC, Attn: LANE N COHEN, ESQ., FL, DENVER, CO, (For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: MARGARET KECK, ESQ., CO, (For Respondents).
SEDGWICK CLAIMS MANAGEMENT, KY, (Other Party).
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