W.C. No. 4-701-632.Industrial Claim Appeals Office.
April 27, 2010.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) dated December 14, 2009, that ordered the respondents to pay the claimant permanent partial disability (PPD) benefits based on an impairment of 27 percent of the whole person. We affirm.
The claimant sustained an industrial injury to her back on September 13, 2006 and reached maximum medical improvement (MMI). The authorized treating physician, Dr. Quick, rated the claimant’s impairment at 27 percent of the whole person. The claimant underwent a Division-sponsored independent medical examination (DIME). The DIME physician rated the claimant’s impairment at 21 percent of the whole person. Dr. Leach rated the claimant’s impairment at 27 percent of the whole person. The ALJ found that it was highly probable that the rating by the DIME physician was incorrect. The ALJ noted that both the authorized treating physician and Dr. Leach both included a two percent rating for a neurologic disorder pursuant to the AMA Guides and the DIME physician did not do so. The ALJ found the claimant had overcome the rating of the DIME physician by clear and convincing evidence and awarded the claimant PPD benefits based on 27 percent whole person impairment.
The respondents bring this appeal, contending that the ALJ erred in determining that the entire DIME opinion had been overcome when his findings of fact clearly upheld all aspects of the DIME physician’s impairment assessment except the failure to include impairment for the neurologic disorder. The respondents request that matter be remanded to the ALJ for entry of an order awarding the claimant 23 percent whole person
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impairment. The 23 percent whole person impairment represents the DIME physician’s 21 percent impairment plus an additional two percent rating for a neurologic disorder.
I.
The respondents first contend the ALJ’s determination that the DIME physician’s opinion had been overcome for failing to include a neurologic impairment was an abuse of discretion. The respondents contend that the DIME physician’s opinion was based on the fact that the claimant did not have symptoms consistent with a neurologic impairment and a difference of opinion concerning the matter was not enough to establish that the DIME opinion was highly, probably incorrect. We are not persuaded.
Section 8-42-107(8)(c), C.R.S, 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. 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.
Here the ALJ made the following findings of fact with record support. Dr. Quick and Dr. Leach each rated the claimant with a two percent impairment for a neurologic impairment for a left S1 radiculopathy. These ratings were made pursuant to the AMA Guides. The DIME physician did not rate the claimant for a neurologic impairment. In his report the DIME physician noted that the claimant had a decreased sensation over the S1 dermatome distribution. Exhibit 3 at 2. The DIME physician did not comment on any decreased sensation and did not comment on a neurologic impairment. The ALJ determined that the DIME physician’s failure to rate for a neurologic impairment
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demonstrated that it was highly probable that the rating of the DIME physician was incorrect.
In our view, the opinions of Dr. Leach and Dr. Quick constitute substantial evidence supporting the ALJ’s determination. Exhibit 1 at 5 Exhibit 2 at 3. Therefore, we perceive no reversible error in the ALJ’s determination that the claimant has overcome the DIME by clear and convincing evidence.
II.
The respondents next contend that even if the DIME physician was incorrect by failing to include a neurologic impairment assessment, nevertheless the ALJ was compelled to accept the remaining portions of the DIME physician’s impairment assessment and simply increase the total impairment rating by two percent for the neurologic disorder. We disagree.
Having found that the claimant had overcome the impairment rating of the DIME physician the question became what impairment rating was appropriate under the circumstances. See Laclay v. Academy Insulation Central VAC, W.C. No. 4-693-581 (June 04, 2009) DeLeon v. Whole Foods Market, Inc., W.C. No. 4-600-477 (November 16, 2006). The claimant’s correct medical impairment rating becomes a question of fact for the ALJ’s resolution based on a preponderance of the evidence. Garlets v. Memorial Hospital, W.C. No. 4-336-566 (September 5, 2001). The pertinent issue is whether the ALJ erred or abused his discretion in selecting the impairment rating that he ultimately awarded Ortiz v. Service Experts, Inc., W.C. No. 4-657-974 (January 22, 2009).
Because the issue of the extent of the claimant’s permanent partial disability is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo. App. 1999).
Here, the outcome of the case depended heavily on the opinions of medical experts. The ALJ credited the medical opinions of Dr Quick and Dr. Leach as more persuasive than the opinion of the DIME physician. In particular, we note that the weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). It was the ALJ’s prerogative to weigh the evidence, and that the ALJ might have reached a contrary conclusion is immaterial on review. Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo. App. 1999).
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Three physicians expressed opinions on the claimant’s medical impairment rating. Dr. Quick was an authorized treating physician and rated the claimant’s impairment at 27 percent of the whole person. Dr. Leach performed an independent medical examination and rated the claimant as having 27 percent of the whole person. Other than the two percent impairment for a neurologic impairment for a left S1 radiculopathy, which both Dr. Quick and Dr. Leach included, the difference between the DIME physician’s impairment rating and the ratings of both Drs. Quick and Leach was attributable to differences in range of motion impairment. The DIME physician’s range of motion impairment was 13 percent. Both Dr. Quick and Dr. Leach rated the claimant’s range of motion impairment at 18 percent. Although the ALJ did not find the DIME physician’s range of motion impairment was incorrect we are not persuaded that the ALJ was compelled to accept the DIME physician’s range of motion impairment.
In our view, the opinions of Dr. Quick and Dr. Leach constitute substantial evidence supporting the ALJ’s determination of the extent of the claimant’s permanent partial disability. Therefore, we must uphold the ALJ’s determination. Section 8-43-301(8), C.R.S.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 14, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
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MYRA COYLE, AURORA, CO, (Claimant).
NEW HAMPSHIRE INSURANCE, Attn: SANDRA O’BRIEN, C/O: BROADSPIRE, DENVER, CO, (Insurer).
ANDERSON, HEMMAT LEVINE, Attn: JORDAN S. LEVINE, ESQ., DENVER, CO, (For Claimant).
TREECE, ALFREY, MUSAT BOSWORTH, PC, Attn: JAMES B. FAIRBANKS, ESQ./KATHLEEN M. FAIRBANKS, ESQ., DENVER, CO, (For Respondents).
MAXIM HEALTHCARE, Attn: CYNTHIA UHLICH, COLUMBIA, MD, (Other Party).
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