Opinion
W.C. Nos. 4-326-855 4-338-888 4-338-884
June 9, 2000
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Coughlin (ALJ) which awarded medical impairment benefits and interest. We modify the award of interest, set aside the award of medical impairment benefits, and remand the matter for the entry of a new order on the issue of permanent partial disability benefits.
The claimant alleged work-related injuries to his left knee, and low back. It is undisputed Dr. Rupp placed the claimant at MMI on August 28, 1997. In a report dated September 24, 1997, Dr. Rupp assigned a 33 percent lower extremity rating for impairment to the left knee and 15 percent whole person impairment due to the low back injury. Dr. Rupp converted the lower extremity impairment to 13 percent whole person impairment and combined it with the low back rating for a total rating of 26 percent whole person impairment.
On April 12, 1999, the claimant filed an Application for Hearing on the issues of compensability, medical benefits, average weekly wage, temporary disability and permanent partial disability benefits. The respondents endorsed the issues of statute of limitations, offsets and credits.
The ALJ found the claimant sustained his burden to prove he suffered compensable injuries to his knee and low back and rejected the respondents' contention that the claims were barred by the statute of limitations. Relying on the opinions of Dr. Rupp, the ALJ ordered the respondents to pay medical impairment benefits commencing August 28, 1997, based on 26 percent whole person impairment. The ALJ also ordered the respondents to pay interest at the rate of 8 percent per annum on all compensation not paid when due as of January 15, 1997.
I.
On review the respondents contend the ALJ erroneously adjudicated the issue of permanent partial disability benefits. The respondents contend that they have a statutory right to a Division-sponsored independent medical examination (IME) on the issue of medical impairment prior to a hearing on permanent partial disability benefits, and argue that they expressly "reserved" that right. In support, the respondents rely on their pre-hearing Position Statement dated August 17, 1999, where they stated:
"Respondents submit that the Claimant is at maximum medical improvement if this claim is found to be compensable. Respondents submit that the appropriate rating for the knee and the back was given by Dr. Rupp in his September 24, 1997, report. [exhibit reference omitted] By stipulating that the date of maximum medical improvement and impairment given by Dr. Rupp is appropriate Respondents do not intent to waive their rights under C.R.S. § 8-42-107 to seek a Division IME and, in fact, reserve that right."
The ALJ found that the respondents purported to reserve the right to a Division- sponsored IME, but nevertheless stipulated to Dr. Rupp's medical impairment rating and finding of MMI. Under these circumstances, the ALJ found that the respondents "cannot have it both ways." Further, in the absence of a dispute concerning MMI and medical impairment, the ALJ determined the claimant is entitled to permanent partial disability benefits based on 26 percent whole person impairment.
The respondents' right to a Division-sponsored IME on the issue of permanent partial disability is triggered upon the respondents' receipt of notice that the treating physician has placed the claimant at MMI and assigned a medical impairment rating. See Aren Design, Inc. v. Becerra, 897 P.2d 902 (Colo.App. 1995). The statutory language currently codified at § 8-42-107(8)(c), C.R.S. 1999, provides that: "If either party disputes the authorized treating physician's finding of medical impairment," the claimant shall undergo a Division-sponsored IME at the expense of the party who disputes the treating physician's finding of medical impairment. The statute also provides that there shall be no hearing on the issue of medical impairment until the IME's finding of medical impairment is filed. The Rules of Procedure, Part IV(N)(5), 7 Code Colo. Reg. 1101-3 at 6.03 (1996), provide that, if the respondents dispute the medical impairment rating they must request the IME within 20 days of their receipt of the treating physician's rating.
We may not read non-existent provisions into the statute . See Arenas v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 99CA1067, March 16, 2000). Section 8-42-107(8)(c) only precludes the ALJ from hearing the issue of medical impairment where a party has "disputed" the treating physician's medical impairment rating by requesting an IME. Therefore, the statute does not prohibit the ALJ from proceeding with a hearing on medical impairment in the absence of an actual request for an IME.
Here, the respondents did not request an IME, and the claimant did not withdraw the issue of permanent partial disability benefits as an issue for the September 17, 1999, hearing. At the commencement of the hearing, the respondents' counsel made conflicting statements. However, he acknowledged that "permanent partial disability" was endorsed for adjudication, and the claimant's counsel agreed. (Tr. p. 5). Under these circumstances, the ALJ was not precluded from hearing the issue of permanent partial disability.
Moreover, the respondents concede that Dr. Rupp found the claimant to be at MMI and issued a medical impairment rating. The respondents' Position Statement also concedes that Dr. Rupp gave the "appropriate rating" for the claimant's knee and back. Because the respondents did not "dispute" Dr. Rupp's rating, § 8-42-107(8)(c) does not afford them a right to a Division-sponsored IME. It follows that the respondents' purported "reservation" of the right to request an IME was contrary to their conduct in agreeing to adjudicate permanent partial disability benefits and in conflict with the statutory scheme. Therefore, the reservation was ineffective.
The respondents' further arguments have been considered and do not alter our conclusions.
II.
Alternatively, the respondents contend the ALJ erred in awarding benefits based upon 26 percent whole person impairment. The respondents do not dispute that the claimant suffered 33 percent medical impairment to the lower extremity and 15 percent whole person impairment to the whole back. However, they contend that the claimant is not entitled to have the lower extremity rating converted to a whole person rating and combined with the low back impairment rating. We conclude that the ALJ's findings of fact are insufficient to permit appellate review. Consequently, we remand the matter for additional findings of fact and the entry of a new order concerning the respondents' liability for permanent disability benefits. Section 8-43-301(8), C.R.S. 1999.
As argued by the respondents, § 8-42-107, C.R.S. 1999, establishes two different methods for awarding compensation benefits based upon a permanent impairment. If the injury is one of those described in the schedule contained in § 8-42-107(2), the benefits delineated in the schedule are awarded. If, on the other hand, the injury does not fall under the schedule, benefits shall be awarded for whole person impairment under § 8-42-107(8).
In Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo 1996), the Supreme Court reviewed five workers' compensation cases in which the claimants sustained more than one "injury" from a single industrial accident, and at least one of the injuries was not listed on the schedule of disabilities in § 8-42-107. The Court interpreted § 8-42-107 to mean that:
"[W]hen an employee is involved in a work-related accident that results in both a scheduled injury and a non-scheduled injury, the scheduled injury must be converted to a whole person impairment rating and combined with the non-scheduled injury's whole person impairment rating in calculating permanent disability benefits."
However, Oqueda did not consider and thus, did not purport to hold that a scheduled impairment must be converted to a whole person impairment where the claimant's scheduled and non-scheduled impairments are the result of separate industrial injuries. ( Note: 1999 Colo. Sess. Laws, ch. 103, § 8-42-107(7)(b)(II), at 298 apparently modifies Oqueda for all injuries occurring on or after July 1, 1999, by providing that scheduled and nonscheduled impairments are not combined but compensated separately).
The claimant agrees that Oqueda does not govern permanent partial medical impairments resulting from multiple industrial injuries. Rather, the claimant contends that it is undisputed his low back injury is "wholly interrelated to the knee injury." Therefore, the claimant asserts that Oqueda applies to the facts of this claim.
We conclude that the ALJ's findings of fact are insufficient to ascertain whether she found the claimant's permanent disability is the result of one or two industrial injuries. See CFI Steel Corp. v. Industrial Commission, 650 P.2d 1332 (Colo.App. 1982 (term injury encompasses both accidental injuries and occupational diseases). Therefore, we remand the matter for additional findings.
The question of whether the claimant's condition is the result of one or two industrial injuries is essentially a factual determination for the ALJ. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). In resolving this question the ALJ must determine the cause of the claimant's knee and back problems. See Valdez v. United Parcel Service, 728 P.2d 340 (Colo.App. 1986) ;. In some instances an injury is considered to be the natural and proximate result of a previous industrial injury. See Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970); Excel v. Industrial Claim Appeals Office, 860 P.2d 1393 (Colo.App. 1993). In other cases, especially where there is evidence of a separate, intervening event following a prior industrial injury, the claimant is deemed to have sustained more than one industrial injury. See Citadel Mall v. Industrial Claim Appeals Office, 892 P.2d 419 (Colo.App. 1994) (injuries sustained during an on-the-job training program designed to rehabilitate the claimant from the effects of a prior industrial injury considered second injury); Fischer-Muck v. Interim Health of South Eastern Colorado, W.C. No. 4-113-829 et. al., (January 31, 2000), appeal pending, (ALJ erred in finding new injuries sustained during motor vehicle accident on return from medical appointment for industrial injury are compensable in original injury claim).
Here, the ALJ found that the claimant developed an occupational disease affecting his left knee which was caused by the lifting, twisting, bending, stretching, stooping and kneeling requirements of his employment. ( See Findings of Fact 3, 8). As a result, the claimant underwent knee surgery on June 20, 1995. ( See Finding of Fact 7). The ALJ also found that "during rehabilitation after the knee surgery, Claimant experienced increasing pain in his lower back and left hip." ( See Finding of Fact 9). The claimant was subsequently diagnosed with a herniated disc. Further, the ALJ found that in December 1996, Dr. Rupp advised the claimant that "there is probably significant correlation between your degenerative disc, your back problem and left leg problem that you are having, that was work related secondary to repetitive type lifting, bending, stooping, and working in awkward positions."
The respondents concede the record contains some evidence, including Dr. Hughes' opinions, which might support a finding that the claimant's "back injury is the result and a natural consequence of the knee." ( See Position Statement August 17, 1999). However, the respondents point out the ALJ's further determinations that the "date of onset" for the claimant's left knee claim in W.C. No. 4-326-855 was May 1995, and the "date of onset" for the low back claim in W.C. No. 4-338-888 was November 1995. Further, the record contains evidence that the claimant returned to work for the respondent-employer after his knee surgery, and the ALJ expressly found that the claimant sustained his burden to prove that his back condition was caused by his work activities. ( See Tr. pp. 61, 62; Finding of Fact 10). Under these circumstances we are unable to ascertain whether the ALJ determined that the low back injury was a natural consequence of medical treatment necessitated by the knee injury or the result of a second work-related injury, independent of the knee injury.
On remand the ALJ must resolve conflicts in the evidence and determine whether the claimant's permanent impairment is the result of one or two industrial injuries, and shall issue specific findings of fact which articulate the basis for her determination. If the ALJ determines that the claimant suffered two separate industrial injuries, the ALJ shall award permanent partial disability benefits without combining Dr. Rupp's lower extremity and whole person impairment ratings. In contrast, if the ALJ determines that the claimant's permanent impairment is the result of a single industrial injury, the ALJ may reinstate her prior award of medical impairment benefits.
III.
Finally, the respondents contend the ALJ erred in awarding interest on all disability benefits not paid when due after January 15, 1997, the date the respondents received notice of these claims for workers' compensation benefits. The respondents contend that no interest is due prior to August 28, 1997.
The purpose of an award of interest is to secure to claimants the present value of benefits to which they are entitled by creating an equitable remedy for the loss of use of funds during the accrual period. Subsequent Injury Fund v. Industrial Claim Appeals Office, 899 P.2d 271 (Colo.App. 1994). We note that there is no admitted liability for disability benefits prior to August 28, 1997, and no award of disability benefits before August 28, 1997. However, because the issue may arise on remand, we shall consider the respondents' argument.
Section 8-43-410(2), C.R.S. 1999 provides that:
"Every employer or insurance carrier of an employer shall pay interest at the rate of eight percent per annum upon all sums not paid upon the date fixed by the award of the director or administrative law judge for the payment thereof or the date the employer or insurance carrier became aware of an injury, whichever date is later." (Emphasis added).
The claimant argues the ALJ correctly awarded interest from the "later" of the dates he found the claimant experienced the "onset" of the injuries and the first date the respondents had notice of these claims. We disagree.
The statute imposes a duty to pay interest from that later of the date benefits are due and the date the respondents became aware of the "injury." Thus, the "date of onset" is immaterial to the respondent's liability for interest. Further, the date the respondents received notice of the three claims is not necessarily the date the respondents became aware of the injuries. In fact, the ALJ explicitly cited the claimant's testimony that prior to January 1997, he reported his knee pain to his supervisor.
In any case, medical impairment benefits are not due until the claimant attains MMI. Section 8-42-107(8)(d), C.R.S. 1999; Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995) ; Fuentez v. Hewlett Packard, W.C. No. 4-201-920 (December 18, 1998). Here, it is undisputed the claimant did not reach MMI until August 28, 1997. Because August 28, 1997, is later than January 15, 1997, the ALJ erred in ordering the respondents to pay interest prior to August 28, 1997, and we modify the ALJ's order accordingly.
IT IS THEREFORE ORDERED that the ALJ's order dated November 12, 1999, is modified to provide that the respondents shall pay interest at the rate of 8 percent per annum on all permanent disability benefits not paid when due commencing August 28, 1997.
IT IS FURTHER ORDERED that the ALJ's order is set aside insofar as the ALJ ordered the respondents to pay permanent partial disability benefits based on 26 percent whole person impairment and the matter is remanded to the ALJ for the entry of a new award consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
An action to modify or vacate this Order may commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 1999. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed June 9, 2000 to the following parties:
Phillip R. Dionysius, 1355 S. Lincoln, Longmont, CO 80501
Gerald Renteria, Graphics Packaging Company, 3825 Walnut St., Boulder, CO 80301
Raquel Hansen, Insurance Management Association, Inc., 999 18th St., #2800, Denver, CO 80202-2432
Richard E. Samson, Esq., 515 Kimbark, #105, P. O. Box 1079, Longmont, CO 80502 (For Claimant)
Kyle L. Thacker, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)
BY: A. Pendroy