Metro Moving & Storage Co. v. Gussert, 94CA1926

• Decision Date: 15 June 1995
• Docket Number: No. 94CA1926,94CA1926
• Citation: 914 P.2d 411
• Parties: METRO MOVING & STORAGE CO. and Colorado Compensation Insurance Authority, Petitioners, v. Gary A. GUSSERT and the Industrial Claim Appeals Office of the State of Colorado, Respondents. . I
• Court: Colorado Court of Appeals

Page 411

914 P.2d 411

METRO MOVING & STORAGE CO. and Colorado Compensation Insurance Authority, Petitioners, v. Gary A. GUSSERT and the Industrial Claim Appeals Office of the State of Colorado, Respondents.

No. 94CA1926.

Colorado Court of Appeals,

Div. I.

June 15, 1995.

Rehearing Denied Aug. 3, 1995.

Certiorari Denied April 15, 1996.

Michael J. Steiner, Denver, for petitioners.

Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Pepe J. Mendez & Associates, P.C., Pepe J. Mendez, Denver, for respondent Gary A. Gussert.

No appearance for the Industrial Claim Appeals Office.

Chief Judge STERNBERG.

The petitioners, Metro Moving & Storage Co. and Colorado Compensation Insurance Authority, seek review of a final order of the Industrial Claim Appeals Panel, which determined that Gary A. Gussert, claimant, presented clear and convincing evidence to overcome the rating of the independent medical examination (IME) physician in determining his medical impairment benefits. We affirm.

It was conceded that the claimant, a furniture mover, suffered a work-related injury to his back. The sole issue in controversy is the extent of his permanent impairment under the new standards adopted by the General Assembly during the 1991 revision of the Workers' Compensation Act.

I. Legislative History

Prior to the 1991 statutory changes, the Administrative Law Judge (ALJ) had broad discretion in assessing the extent and degree of an injured worker's permanent disability. See American Metals Climax, Inc. v. Cisneros, 195 Colo. 163, 576 P.2d 553 (1978); Ski Depot Rentals, Inc. v. Lynch, 714 P.2d 516 (Colo.App.1985).

However, in the 1991 legislative session, the General Assembly repealed the statute governing benefits for permanent partial disability and replaced it with provisions for benefits now termed "permanent medical impairment." See Colo.Sess.Laws 1991, ch. 219, § 8-42-107 at 1306. For all non-scheduled injuries, permanent impairment must now be determined based on the American Medical Association Guides to the Evaluation of Permanent Impairment, Revised Third Edition (AMA Guides). Section 8-42-101(3)(a)(I), C.R.S. (1994 Cum.Supp.).

The worker's authorized treating physician determines the impairment rating as a percentage of the whole person. If either party disputes the rating, an independent medical examiner may be selected by mutual agreement of the parties, or, if they are unable to agree, an IME physician will be appointed by the Director from a list of accredited physicians maintained by the division. The impairment rating of an agreed-upon IME physician is binding upon both parties and the Director. The rating of a division-appointed IME physician is also binding unless either party is able to overcome the rating by "clear and convincing" evidence. Section 8-42-107(8)(c), C.R.S. (1994 Cum.Supp.); see Salmon & Salazar, 1991 Update on Workers' Compensation Law, 20 Colo.Law. 2223 (November 1991).

II. Facts

Here, the claimant was treated for his work injury by Dr. Andrew Plotkin, the employer's authorized treating physician. After four weeks of total temporary disability, Dr. Plotkin determined that claimant had reached maximum medical improvement, and he released him to return to work with no work restrictions. In addition, Dr. Plotkin stated in his final report to the division that claimant had not sustained any permanent impairment. However, according to the claimant, Dr. Plotkin verbally advised him that he should not return to his former work as a furniture mover.

At the request of the Division of Labor, claimant was evaluated for vocational rehabilitation by Dr. Donald Harder. Dr. Harder concluded that claimant had sustained a permanent injury which prevented him from lifting more than 25 pounds or working in prolonged stooped positions.

Because Drs. Plotkin and Harder had differing opinions as to his condition, claimant requested that Dr. Harder perform an independent medical exam under § 8-42-107(8)(c) to determine his permanent impairment, if any. The respondents, however, refused to accept Dr. Harder as the mutually approved medical examiner. The division therefore appointed Dr. Neil Rosenberg to conduct the IME.

Dr. Rosenberg submitted a report finding that the claimant had "0% whole person impairment." Although Dr. Rosenberg noted that the claimant had ongoing "mild chronic low back pain," he said he could find "no abnormalities on neurologic examination to suggest a specific disorder," and he thus concluded that claimant had suffered no permanent impairment.

The claimant disputed Dr. Rosenberg's rating and requested a hearing on the matter. At the hearing, he called Dr. Harder to testify on his behalf. Dr. Harder was qualified as an expert in orthopedic medicine, physical medicine, and rehabilitation. Like Dr. Rosenberg, he is a level II accredited physician under § 8-42-101(3.6)(a)(II), C.R.S. (1994 Cum.Supp.).

Dr. Harder testified that the claimant has a 9% whole person impairment according to the AMA Guides. He explained that 5% of the impairment is based on a minimum of six months' medically documented pain and rigidity of the lumbar spine, and the remaining 4% impairment is due to a loss of flexion.

Dr. Harder also opined that Dr. Rosenberg's impairment rating did not comply with the AMA Guides. He testified that Dr. Rosenberg deviated from the Guides by not utilizing an applicable table, and by not specifying whether he had used an inclinometer when measuring the claimant's lumbar range of motion, as recommended by the Guides. In addition, Dr. Harder noted that Dr. Rosenberg had crossed out his original numerical measurements of claimant's lumbar flexion on the measurement chart and had substituted a second measurement. Dr. Harder stated that the substituted figure was the number 60, which "happens to be the very number that is normal."

The ALJ concluded that it was "highly probable" that Dr. Rosenberg's impairment rating was incorrect. He found that claimant had met his burden of overcoming the IME rating with clear and convincing proof, and he expressly found that Dr. Harder and the claimant were credible witnesses. The ALJ credited Dr. Harder's 9% impairment rating and awarded the claimant $10,070 in benefits under § 8-42-107(8)(d), C.R.S. (1994 Cum.Supp.).

III. The Panel's Review

On review to the Panel, the respondents argued that the ALJ erred as a matter of law in discrediting Dr. Rosenberg's impairment rating. Respondents argued that the impairment rating was "presumptively valid" because § 8-42-107(8)(c) creates a legal presumption that the IME physician arrived at the rating "in accordance with the AMA Guides." They also claimed that Dr. Harder's opinion discrediting Dr. Rosenberg's methodology was "mere conjecture," which did not justify the ALJ's order. The Panel rejected these arguments. The Panel said that it did not dispute that § 8-42-107(8)(c) establishes a presumption of regularity concerning the IME physician's impairment rating; however, citing Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App.1990), the Panel ruled that once a party disputing the rating has come forward with evidence to rebut the presumption of regularity, the issue becomes a question of fact for the ALJ's resolution.

Moreover, in determining whether a party has overcome the presumption of regularity by clear and convincing evidence, the Panel stated that it cannot reweigh the evidence or make its own assessment of the quality of proof; rather, it determined it could review the record only to determine whether the ALJ's findings of fact were supported by substantial evidence. Because it found adequate support for the ALJ's determination, the Panel affirmed the order. This review followed.

IV. Standard of Review

We first address the standard of review applicable to the ALJ's order.

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. See CJI-Civ.3d 3:2 (1988); DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318 1980). Therefore, the party challenging the IME rating under § 8-42-107(8)(c) must produce evidence which shows that it is "highly probable" the IME rating is incorrect.

However, irrespective 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...