Opinion
W.C. No. 4-572-435.
August 7 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated February 15, 2007, that denied the claimant's petition to reopen. We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant was injured on February 14, 2003, and was treated by a number of physicians for right upper extremity problems. A final admission of liability was filed on September 2, 2003 and was based on a report from Dr. Hattem, in which he placed the claimant at maximum medical improvement (MMI) on July 15, 2003. Dr. Hattem noted a resolved cervical strain and also released the claimant to full duty. The claimant later requested permission to return to a physician and the respondents authorized the claimant to see Dr. Walia. The claimant filed a petition to reopen on July 18, 2006, alleging that her condition had worsened. Attached to the petition to reopen was a copy of Dr. Walia's report of April 1, 2006. Dr. Walia stated that while the claimant remained at MMI she had seven percent whole person impairment attributable to the February 14, 2003 industrial injury. The ALJ found that the claimant failed to provide any credible medical report or testimony that established that her physical condition had worsened as a result of the compensable injury in February 2003. The ALJ further found that the claimant had failed to establish that her psychiatric impairments were caused or exacerbated by the work-related injury in February 2003. The ALJ concluded that the claimant failed to establish by a preponderance of the evidence that there had been a change in her physical or mental condition that was causally related to the original industrial injury of February 1, 2003, and therefore the ALJ denied the claimant's petition to reopen.
On appeal the claimant contends that when the authorized treating physician opined the claimant's medical condition had deteriorated the respondents were prohibited from litigating the issue of causation prior to seeking a Division-sponsored independent medical examination (DIME). The claimant argues that, since her petition to reopen is supported by the opinion of the authorized treating physician, the respondents are required by § 8-42-107(8) either to file an admission based on the authorized treating physician's opinion or challenge the physician's opinion by obtaining a DIME. Essentially the claimant argues that the physician's opinion that the claimant's permanent impairment had increased since maximum medical improvement deprived the ALJ of discretion regarding whether to reopen. Put differently, the claimant argues that the increased impairment rating compelled the ALJ as a matter of law to reopen the claim. In our view the claimant's argument is based upon a misinterpretation of the applicable law.
It is undisputed that § 8-43-303(1), C.R.S. 2006, permits a claim to be reopened based on a worsened condition. However, the claimant has the burden of proof to establish a change in a physical or mental condition which is causally related to the original industrial injury. As a general matter, the ALJ is granted wide discretion in determining whether the claimant has met her burden of proof, and we must uphold the findings, including those concerning causation, if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2006; Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082 (Colo.App. 2002); Richards v. Industrial Claim Appeals Office, 996 P.2d 756 (Colo.App. 2000); Chavez v. Industrial Commission, 714 P.2d 1328 (Colo.App. 1985). The question of whether there was some other cause for the claimant's disability is one of fact for determination by the ALJ. See Owens v. Industrial Claim Appeals Office, 49 P.3d 1187 (Colo.App. 2002).
In arguing that the ALJ was compelled to reopen the claim based upon the physician's increased impairment rating, the claimant also necessarily argues that the ALJ was precluded from adjudicating the question whether the claimant's increased impairment was caused by the industrial injury. We recognize, of course, that in Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998) the court held that determining the cause of the claimant's various conditions is part of the diagnostic assessment inherent in the rating process. Therefore, the court concluded in Qual-Med that a party seeking to overcome the DIME physician's impairment rating also had to overcome the DIME physician's opinion concerning the cause of the impairment. See § 8-42-107(8)(c), C.R.S. 2006.
We are also aware that in Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998), the court held that the authorized treating physician's opinion regarding the cause of the claimant's condition is necessarily inherent in the physician's medical impairment rating. In reaching its conclusion the court noted that § 8-42-107(8)(c) specifies that the treating physician makes the initial determination of impairment and either party may request a DIME to dispute the treating physician's opinion. In the absence of a DIME, the treating physician's opinion regarding the cause of the impairment is binding. Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995).
However, it does not necessarily follow that these cases compel an ALJ to reopen a claim based upon a worsened condition whenever an authorized treating physician states that the claimant's impairment has increased following maximum medical improvement. To the contrary, the determination whether to reopen remains discretionary, and it is fully within the ALJ's province to determine as a factual matter that a claimant's condition has not changed, or that any change is attributable to factors other than the industrial injury. Those determinations remain factual ones subject to review under the substantial evidence standard. (Of course, those are not the ALJ's only alternatives. Given sufficient support in the record the ALJ might, for example, find that the increased impairment rating represents only a difference of opinion between two doctors concerning rating protocols, and that the claimant's impairment had not changed. The point here is that the decision is a discretionary one and it is the ALJ's prerogative to weigh the factual evidence and evaluate its probative value.)
Our conclusion in this regard is consistent with the applicable law. In Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002), the court held that a DIME physician's opinions that a claimant's condition worsened, and that the worsening was caused by the industrial injury, were not entitled to presumptive weight when the issue concerned reopening rather than a direct attack on maximum medical improvement and medical impairment. The court noted that "the opinions of a DIME physician have only been given presumptive weight when expressly required by the statute," and the Act contains no such requirement with respect to reopening based on worsened condition. Cordova, 55 P.3d at 190; See also Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000) (DIME finding regarding causation need not be overcome by clear and convincing evidence where dispute involved threshold issue of whether compensable injury occurred); Gutirrez v. Ready Men Labor, Inc., W.C. No. 4-280-325 (January 9, 2002); Westerkamp v. Target Stores, W.C. No. 4-408-369 (December 26, 2001) (fact DIME physician assessed medical impairment based on industrial injury did not require his opinion to be given presumptive weight concerning the cause of a subsequent worsening of condition); Chasteen v. King, W. C. No. 4-445-608 (April 10, 2002)
In our opinion the court of appeals' restriction on the presumptive weight given to the opinions of DIME physician's in Cordova also applies to the opinions of authorized treating physicians. The attending physician's opinion concerning the claimant's ability to work is not binding when the claimant seeks to establish, in the first instance, a work-related industrial injury resulting in disability. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). We have previously applied the principles announced in Lymburn to the situation where the claimant seeks to reopen for a worsened condition and obtain additional temporary disability benefits. E.g., Tuttrow v. Gosney Sons Inc., W.C. No. 3-102-245 (October 24, 1997), aff'd, Gosney and Sons Inc. v. Industrial Claim Appeals Office, (Colo.App. No. 97CA1948, May 28, 1997) (not selected for publication); See also Greigo v. Bemas, W. C. No. 4-443-429 (May 13, 2002).
IT IS THEREFORE ORDERED that the ALJ's order dated February 15, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________________ Tom Schrant
__________________________________ Curt Kriksciun
KING SOOPERS INC, DENVER, CO, (Employer).
SEDGWICK CLAIMS MGMT SERVICES, Attn: SHARMIE JENSEN, BOX 2728, SALT LAKE CITY, UT, (Insurer).
ALEXANDER RICCI PC, Attn: WILLIAM A. ALEXANDER, ESQ., COLORADO SPRINGS, CO, (For Claimant).
BLACKMAN LEVINE LLC, Attn: LAWRENCE BLACKMAN, ESQ., DENVER, CO, (For Respondents).