Wilson v. Qwest Communications, Inc., W.C. No. 4-846-802-01 (2012).

Industrial Claim Appeals Office

Final Order
Mr. Simon is willing to fight for injured employees, no matter their previous conditions or the severity of the injury. Both were factors in the case of Brenda Wilson, but Mr. Simon took the case to fight for Ms. Wilson’s rights.
Ms. Wilson was an employee of Qwest Communications (respondent) on October 19, 2010, when her chair suddenly lowered causing her to experience back pain. Ms. Wilson was given work restrictions, but the pain persisted. She was then referred to Dr. Sacha, who compared a new MRI of Ms. Wilson’s back to a previous MRI taken on April 11, 2009, for a similar back injury. Dr. Sacha opined that the new MRI revealed no changes or worsening of Ms. Wilson’s previous back condition and placed Ms. Wilson at maximum medical improvement with a zero percent impairment rating.
After the respondent filed a final admission of liability (FAL) consistent with Dr. Sacha’s zero percent impairment rating, Ms. Wilson requested a DIME which was performed by Dr. Goldman. Dr. Goldman assigned a 22 percent whole person impairment, but apportioned 17 percent to Ms. Wilson’s previous injuries. At the time of the DIME, Dr. Goldman did not have Ms. Wilson’s previous medical records, but indicated that they might be necessary.
After the DIME, Dr. Sacha opined that the DIME physician did not follow the any of the approved guidelines or methods for assigning impairment ratings. Therefore, Dr. Sacha stated that the accredited and independently selected DIME physician’s impairment rating was not accurate or appropriate. Dr. Sacha pointed to the absence of a finding of a specific Table 53 disorder, as required by AMA guideline.
After Dr. Sacha’s report, the DIME physician reviewed his findings and ultimately lowered his impairment rating. Further, the DIME physician stated that Ms. Wilson was back to a qualitative baseline and that she may not have been any more impaired now as she was before her current accident. Further, the DIME physician noted that Ms. Wilson exhibited four positive Waddell signs indicating non-physiological symptom magnifications and stated that the Ms. Wilson’s symptoms should not be taken at face value. 
The administrative law judge (ALJ) found Dr. Sacha demonstrated that Ms. Wilson did not have a rateable impairment, which was evidenced by the unchanged MRIs and lack of a specific injury diagnosis. The ALJ also found that Ms. Wilson’s pain complaints were not reliable basis for assessment for impairment, and dismissed the claim because Ms. Wilson did not sustain a permanent disability.
However, Mr. Simon never doubted Ms. Wilson’s credibility or story that she sustained an injury as a result of her chair suddenly lowering. So he filed an appeal with the Industrial Claim Appeals Office (the Panel) and asserted that the respondent failed to meet the burden of proof necessary to overcome the DIME physician’s impairment rating.
To preface the difficulty of an appeal in workers’ compensation claims, there are several key concepts to understand. First, the ALJ is given extremely broad discretion to make finds of fact and inferences, compare the relative worth of all testimonies, and ultimately make a final binding order for the case. City of Aurora v. Vaughn, 824 P.2d 825 (Colo. App. 1991).  Second, due to this large discretion, the Panel will only overturn an ALJ for an abuse of discretion when the record reveals abuse rising to a level that exceeds the bounds of reason or if there was fraud. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo. App. 1996); Louisiana Pacific Corp. v. Smith, 881 P.2d 456 (Colo. App. 1994). However, the Panel will uphold an ALJ’s decision if supported by substantial evidence in the record, even if an equally plausible decision could have been reached. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo. App. 1998).
The Panel reviewed the record of both the DIME physician and Dr. Sacha and concluded that the ALJ was reasonable in her reliance upon Dr. Sacha’s review of the DIME report. The Panel pointed particularly to Dr. Sacha’s interpretation of the AMA guidelines and the lack of a Table 53 diagnosis as reasoning for its decision to uphold the ruling of the ALJ.
Though the outcome of the case was ultimately against Ms. Wilson, Mr. Simon fought an uphill battle to help Ms. Wilson receive the workers’ compensation benefits she deserved. Though medical testimony proved otherwise, Mr. Simon believed Ms. Wilson’s pain complaints and used all of his legal knowledge to attempt to overcome the unfavorable doctor diagnosis.
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