W.C. No. 4-764-408.Industrial Claim Appeals Office.
May 12, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated July 21, 2009, that determined the claimant was not entitled to any permanent partial disability (PPD) benefits. We affirm.
The claimant worked for the employer as a care specialist. The claimant suffered an industrial injury to her back on June 25, 2008 when she was lifting a resident into a shower. Dr. Lesnak treated the claimant. On September 11, 2008, the claimant presented to Dr. Lesnak reporting that she had “improved dramatically.” Dr. Lesnak recommended no further diagnostic testing or interventional treatments and opined that the claimant had attained maximum medical improvement (MMI). Dr. Lesnak found no evidence that the claimant had sustained any permanent functional impairment and assigned no work restrictions. The claimant underwent a Division-sponsored independent medical examination (DIME). The DIME physician assigned the claimant a total 16 percent whole person impairment for her lumbar spine.
The ALJ determined that the DIME physician improperly included invalid range of motion measurements in the permanent impairment rating that he assigned. The ALJ further found that the DIME physician had failed to properly apply the AMA Guides and the Division Level II training regarding use of invalid range of motion in calculating impairment. The ALJ concluded that respondents had established by clear and convincing evidence that the rating of the DIME physician was incorrect. The ALJ further concluded that the claimant had failed to establish by a preponderance of the
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evidence that she sustained any permanent impairment as a result of the compensable injury. The claimant appeals.
I.
The claimant first argues that the respondents had not shown that it was highly probable that the rating of the DIME physician was incorrect. Therefore, the claimant argues she is entitled to the 16 percent whole person permanent medical impairment rating found by the DIME physician.
As noted by the ALJ the DIME physician’s medical impairment rating is binding unless overcome by “clear and convincing evidence.” Section 8-42-107(8)(c), C.R.S; Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). “Clear and convincing evidence” is evidence which proves that it is “highly probable” the DIME physician’s opinion is incorrect Metro Moving Storage Co. v. Gussert, supra.
The question of whether the DIME physician’s rating has been overcome by “clear and convincing evidence” is a matter of fact for determination by the ALJ. Metro Moving Storage Co. v. Gussert, supra. In resolving this issue, the ALJ must consider the factual question of whether the DIME physician properly applied the AMA Guides and other rating protocols. See Metro Moving Storage Co. v. Gussert, supra. The questions whether the DIME physician properly applied the AMA Guides in arriving at the rating, and ultimately whether the party challenging the rating has overcome it by sufficient evidence, are issues of fact for the ALJ. McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo. App. 1999).
The claimant argues that the DIME physician did note inconsistencies between his range of motion measurements and those in prior medical reports. The claimant points out that the DIME physician did not state that the claimant’s range of motion measurements were invalid but instead said that they were “marginally” valid. The claimant argues that by failing to specifically find that the claimant’s lessened effort invalidated the range of motion measurements, the DIME physician implicitly found that it did not invalidate the measurements.
It is clear that the ALJ was persuaded that the claimant had made inconsistent presentations and statements to her treating physicians regarding her subjective reports of pain. This resulted in inconsistent physical examinations including range of motion measurements. The ALJ determined that, according to the AMA Guides and the Division Level II training, the DIME physician erred in using the abnormal lumbar spine range of motion for purposes of calculating the claimant’s permanent impairment.
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The ALJ made extensive findings of fact on whether the DIME physician’s rating have been overcome. These findings included the following. In his examination the DIME physician noted inconsistency between supine versus seated straight leg raise tests. Exhibit E at 13. The DIME physician found the claimant had an overall 3/5 Waddell’s signs. Exhibit E at 13. The DIME physician noted that the measurements were considered internally valid, but the effort was of marginal credibility. Exhibit E at 13. The DIME physician queried symptom magnification/functional overlay. Exhibit E at 14. The DIME physician noted that it was “difficult to discern fact from fiction in this claim. Her straight leg test today on the right was limited to 4 degrees, while 12 days prior it was up to 20 degrees.” Exhibit E at 14. The DIME physician stated that “The inconsistencies on today’s presentation compared to the prior notes are significant.” The DIME physician noted that the claimant did not demonstrate any clear objective radiculopathy type picture from the lumbar disc degeneration seen on MRI. Exhibit E at 14.
The ALJ made additional findings of fact with record support regarding Dr. Cedillo. Dr. Cedillo noted that the claimant and her husband were very frustrated and argumentative when he would not prescribe additional pain medications without further liver and kidney testing. Exhibit F at 22. Dr. Cedillo found that the claimant’s range of motion testing was inconsistent and invalid compared to those taken by Dr. Lesnak and the DIME physician. Exhibit F at 21. In light of those significant inconsistencies, pain behaviors, symptom magnification and the DIME report that documents the same, Dr. Cedillo recommended a re-evaluation with Dr. Lesnak. Exhibit F at 21-22.
The ALJ also made additional findings of fact with record support regarding Dr. Lesnak. Tr. at 6. Dr. Lesnak, a treating physician, is an expert in physical medicine and rehabilitation. Tr. at 5. Dr. Lesnak is board certified and Level II accredited with the Division of Workers’ Compensation (Division). Tr. at 5. Dr. Lesnak testified regarding the DIME physician’s report that due to the claimant’s pain behaviors and submaximal efforts on examination, the range of motion measurements should not have been used for purposes of calculating permanent impairment. Tr. at 32, 36. Dr. Lesnak testified that, according to the AMA Guides and the Division’s Level II training courses, once something indicates submaximal effort on the part of the patient, then the examiner cannot use range of motion measurements even if the measurements themselves are internally valid. Tr. at 33; Exhibit 5. Dr. Lesnak noted that the claimant’s anatomic restrictions were inconsistent and varied from provider to provider. Tr. at 44, 48, 67. Dr. Lesnak testified that the claimant’s range of motion tests conducted by the DIME physician were quite different and widely different. Tr. at 47-48. Thus, the range of motion measurements on one particular day such as the DIME examination here could not be seen as valid and could not be utilized for the purpose of calculating an impairment rating. Tr. at 36, 64; Exhibit 6 at 4.
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The claimant argues that the DIME physician’s range of motion measurements were internally valid. However, the ALJ credited Dr. Lesnak who testified that although the DIME physician’s measurements were at first glance “internally valid” under the AMA Guides, the Guides also require that inconsistencies documented on previous clinical examination and during the DIME measurements must be reconciled. Tr. at 20, 43, 53-55. Dr. Lesnak testified that when discussing reproducibility and range of motion the AMA Guides are referencing all range of motion tests made by providers, not simply reproducibility and consistency on one day of testing. Tr. at 44; Exhibit 4. Dr. Lesnak testified that if the claimant’s range of motion was widely different from day to day and from provider to provider, as was the case here, even if the range of motion measurements are internally valid during a specific examination, they cannot be considered valid in the overall picture. Tr. at 44, 51, 68.
The claimant argues that the Division does not expect DIME physicians to communicate with treating physicians. On this issue, the ALJ noted the Division does not expected DIME physicians to communicate with treating physicians and so the Division requires further clinical investigation to be carried out. Dr. Lesnak testified that close examination of the prior medical reports and the frequent notation of non-organic findings when coupled with the DIME physician’s own documentation of the claimant’s inconsistent effort and non-physiologic findings would have been enough to invalidate the range of motions. Tr. at 82.
In our opinion, the ALJ’s determination that the opinion of the DIME physician had been overcome is supported in the record by the testimony and opinions of Dr Lesnak, which the ALJ found to be credible. Tr. at 22,32-33, 36, 39-42; Exhibit G at 26. In addition, the ALJ’s determination is supported by the opinions of Dr. Cedillo. Exhibit F at 21-22; Exhibit I at 40. Because the ALJ’s determination that the opinion of the DIME physician had been overcome is supported by substantial evidence it is binding on us.
II.
The claimant next argues that assuming, arguendo, that the respondents proved that the DIME physician deviated from the rating protocols of the AMA then the claimant should at least be entitled to a five percent permanent medical impairment rating. The claimant argues that not only the DIME physician, but also Dr. Cedillo, Dr. Ryan and even Dr. Lesnak all stated that the claimant is entitled to a five percent under a Table 53 rating. The claimant contends that the ALJ erred in determining that she was not entitled to any PPD benefits when the issue identified by the ALJ was whether the range of motion measurements provided by the DIME physician should have been included in the DIME physician’s overall rating.
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The Panel has previously held that where the ALJ determines that the DIME physician’s rating has been overcome, the question of the claimant’s correct medical impairment rating then becomes a question of fact for the ALJ. Deleon v. Whole Foods Market, Inc., W.C. No. 4-600-477 (November 16, 2006). Thus, once the ALJ determines that the DIME physician’s rating has been overcome in any respect, the ALJ is free to calculate the claimant’s impairment rating based upon the preponderance of the evidence. Garlets v. Memorial Hospital, W.C. No. 4-336-566 (September 5, 2001).
Following Garlets the Panel has ruled that once an ALJ determines that the DIME physician’s rating has been overcome, an ALJ is not required to reject every other component of a DIME physician’s rating. Lee v. J. Garlin Commercial Furnishings, W.C. No. 4-421-442 (December 17, 2001). We note that the Panel has also held that insofar as the ALJ found that the DIME physician miscalculated the claimant’s range of motion impairment, the ALJ is not precluded from crediting any part of the DIME physician’s rating. See Deleon v. Whole Foods Market, Inc., supra. Rather, where the ALJ determines that the DIME physician’s rating has been overcome, the ALJ may independently determine the correct rating Lungu v. North Residence Inn, W.C. No. 4-561-848 (March 19, 2004); McNulty v. Eastman Kodak Company W. C. No. 4-432-104 (September 16, 2002).
The ALJ did find that Dr. Lesnak testified that at the time of MMI, the claimant had no permanent impairment and did not qualify for a Table 53 specific disorder rating for the lumbar spine. However, the ALJ noted that as of the time of his last examination in May 2009, after MMI, Dr. Lesnak opined that he agreed with Dr. Ryan and the DIME physician that the claimant was then entitled to a five percent whole person permanent rating per Table 53 of the AMA Guides.
The ALJ found that on the date of MMI both Dr. Lesnak and PA. Schmidt noted that the claimant had no range of motion deficits and there was not basis for a permanent impairment rating or permanent work restrictions. The claimant’s medical expert Dr. Ryan noted that technically Dr. Lesnak was correct in that the claimant had no specific disorder rating at the time of MMI because less than six months had elapsed after the injury. Dr. Ryan opined that the claimant was now entitled to a Table 53 rating for a specific disorder of the lumbar spine.
Here, the date of MMI was not disputed. Tr. at 2. Permanent disability is determined when the claimant has reached MMI. See Golden Animal Hospital v. Horton 897 P.2d 833 (Colo. 1995); Section 8-42-107(8) C.R.S. The ALJ found that the ratings the claimant received after MMI showed either a worsening of condition, symptom magnification or sub-maximum effort.
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Even if we were to assume that the opinion of Dr. Lesnak bound the ALJ to determine that the claimant was currently entitled to five percent under a Table 53 rating and if we were to further assume that this disability was attributable to a worsening of condition as opposed to symptom magnification or sub-maximum effort, we are not persuaded that the ALJ was compelled to award any permanent partial disability. This is because there was no petition to reopen. We see no error in the ALJ’s determination that the claimant proved no entitlement to the five percent impairment under a Table 53 at the time of MMI.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 21, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
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John D. Baird
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Thomas Schrant
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