Mark A. Simon
Fisher v. Cherry Hills Healthcare, W.C. No. 4-646-000 and 4-646-001 (2006).
When Mr. Simon takes on a new client, it is always with the intention to see the client’s claim to a winning conclusion. This includes defending a client’s compensation award that comes under appellant review by the Industrial Claim Appeals Office (the Panel), as was the case for his client Stephen Fisher.
Mr. Fisher injured his lower back on two occasions while employed by the respondent. After Mr. Fisher treated with several physicians, Dr. Dahaney, an authorized treating physician, determined that Mr. Fisher was at maximum medical improvement and assigned no permanent impairment. Upon the diagnosis, Mr. Simon and opposing counsel combined Mr. Fisher’s claims and sought a single DIME for a diagnosis.
The DIME physician diagnosed Mr. Fisher with low back pain with radiculopathy, chronic low back pain with a herniated disc, and left S1 radiculopathy. The DIME physician opined that Mr. Fisher had seven percent impairment rating under Table 53 of The American Medical Association Guidelines to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides). The DIME physician further determined the claimant had a range of motion impairment of eleven percent and one percent whole person impairment due to radiculopathy, for a total eighteen percent impairment whole person impairment.
Unsatisfied with the rating given by the DIME physician, the respondent referred Mr. Fisher to another physician, Dr. Uesnak. Dr. Uesnak agreed with the DIME physician’s seven percent impairment determined by Table 53, but assigned no impairment for range of motion or radiculopathy.
At hearing, the administrative law judge (ALJ) concluded that, while Dr. Usenak clearly disagreed with the DIME physician’s impairment ratings, the respondents presented no clear and convincing evidence that the DIME physician’s rating were erroneous. On appeal, the respondents claimed that they satisfied their burden of overcoming the DIME physician’s range of motion and radiculopathy ratings by demonstrating that the DIME physician did not conduct the impairment ratings in compliance with the AMA Guides. Further, respondents asserted that inconsistencies in the range of motion testing proved by clear and convincing evidence that the DIME physician’s impairment rating was invalid.
On review, the Panel found the existence of inconsistencies in the medical record were not enough to overcome the DIME physician’s range of motion impairment rating, since they were done consistent with the AMA Guides. As the determination of whether the DIME report was overcome lies squarely within the discretion of the ALJ, the Panel did not disturb the finding of the ALJ regarding the range of motion impairment rating.
The Panel also found that the ALJ’s determination regarding the radiculopathy was properly supported by the record, and so was not clearly erroneous. Overall, the Panel affirmed the award of the ALJ for the eighteen percent whole person impairment rating determined by the ALJ.
In this case, the respondent attempted to take away Mr. Fisher’s deserved compensation award. However, Mr. Simon correctly produced evidence at hearing, and stuck by his client through the appeal, so the award was affirmed.