Opinion
W.C. Nos. 4-474-545; 4-540-403
July 21, 2003
FINAL ORDER
The respondents seek review of an order in these consolidated cases by Administrative Law Judge Friend (ALJ), which reopened W.C. No. 4-474-545 and awarded additional medical benefits. We affirm.
On January 3, 2000, the claimant was injured during a work-related fall. The respondents admitted liability in W.C. No 4-474-545 and provided treatment from Dr. Paz. Dr. Paz diagnosed a bilateral muscle strain, right shoulder strain, and right shoulder degenerative joint disease.
On August 7, 2000, the claimant underwent surgery on her right shoulder to repair a rotator cuff tear. Dr. Paz opined the claimant reached maximum medical improvement (MMI) on January 9, 2001, and assigned 6 percent impairment to the right upper extremity.
The respondents filed a Final Admission of Liability dated March 12, 2001, for the payment of scheduled disability benefits based on 6 percent impairment to the right upper extremity. The claimant objected and requested a Division-sponsored independent medical examination (DIME) on the issue of medical impairment to the "right arm and shoulder."
The ALJ found that because the authorized treating physicians ignored the claimant's request for treatment of the left shoulder, the claimant also filed a written report with the employer which alleged the January 3 accident caused a left shoulder injury. The left shoulder injury was assigned as W.C. No. 4-540-403, and the respondents filed a Notice of Contest.
The claimant returned to Dr. Paz for treatment of her left shoulder. However, Dr. Paz opined the left shoulder pain was not work-related and referred the claimant to her personal physician. Dr. Stahl disagreed with Dr. Paz concerning the work-relatedness of the left shoulder problems.
On May 23, 2001, the claimant petitioned to reopen the claim on the grounds of mistake, error, and change of condition. The claimant requested further benefits for treatment of the left shoulder injury, including left shoulder surgery recommended by Dr. Stahl on September 27, 2001.
Thereafter, the DIME resulted in an 8 percent rating for impairment to the right upper extremity. On November 16, 2001, the respondents filed a new Final Admission of Liability for the payment of scheduled disability benefits consistent with the DIME physician's rating. The claimant did not timely object to the November admission.
The ALJ found that because the claimant did not request a DIME to dispute Dr. Paz's finding of MMI, the claimant reached MMI on January 9, 2001. However, as to the issue of permanent impairment, the ALJ found he was not required to afford the DIME report any special weight. The ALJ reasoned that if the claimant suffered a scheduled injury as asserted by the respondents, the DIME physician's opinions were not controlling, and if the claimant suffered an injury not on the schedule of disabilities, the DIME physician's report was incomplete because it did not purport to determine whether claimant suffered a compensable left upper extremity injury. Instead, the ALJ credited the claimant's testimony and the medical reports of Dr. Stahl to find the claimant sustained one injury on January 3, 2000, which caused damage to both shoulders.
Further, the ALJ found the claimant mistakenly failed to object to the November 16, 2001 Final Admission because the left shoulder injury was erroneously litigated in W.C. No. 4-450-545. The ALJ also found the recommendation for left shoulder surgery demonstrated a worsening of condition. Therefore, the ALJ determined the claimant proved error, mistake, or a change of condition which justified reopening W.C. No 4-474-545.
Consequently, in an order dated December 4, 2002, the ALJ granted the claimant's petition to reopen W.C. No. 4-474-545 and dismissed W.C. No. 4-540-545. The December order also awarded additional medical benefits for treatment by Dr. Paz. The ALJ issued a Supplemental Order on April 17, 2003, which modified the order by awarding medical benefits from Dr. Stahl instead of Dr. Paz.
On review, the respondents contend the ALJ erred in failing to require the claimant to undergo a DIME to dispute the finding of MMI by Dr. Paz. We perceive no error.
Under § 8-42-107(8), C.R.S. 2002, the initial determinations of MMI and medical impairment are to be made by an authorized treating physician, and if either party disputes that determination, the claimant must undergo a DIME. Town of Ignacio v. Industrial Claim Appeals Office, 70 P.3d 513 (Colo.App. 2002); Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). The DIME physician's determination of MMI and medical impairment are binding unless overcome by "clear and convincing evidence." Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Furthermore, these determinations necessarily include a determination of the cause of the claimant's medical condition. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998). In contrast, where no DIME is requested, the treating physician's opinion is dispositive of MMI. Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995).
Here, the ALJ found the claimant failed to request a DIME on the issue of MMI. Therefore, the ALJ properly determined the claimant could not challenge Dr. Paz's opinion that the claimant reached MMI from the right shoulder injury on January 9, 2001.
However, the treating physician's opinions are not entitled to any special weight on the question of whether the claimant suffered a compensable injury. Indeed, the courts have declined to extend the DIME provisions to initial compensability determinations. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002) (DIME physician's opinion concerning whether or not condition worsened so as to justify reopening not entitled to "special weight" under DIME procedure); Westerkamp v. Target Stores, W.C. No. 4-408-369 (December 26, 2001). Rather, the claimant bears the initial burden to prove by a preponderance of the evidence that she sustained an injury arising out of and in the course of his employment. Whether the claimant met this burden of proof is a question of fact for the ALJ. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000).
There is substantial evidence in the claimant's testimony ( See Tr. pp. 21), the early medical reports of Dr. Paz, and the opinions of Dr. Stahl to support the ALJ's determination that there was only one industrial accident and as a result of that accident, the claimant suffered injuries to her right and left shoulders. The DIME physician's failure to include a rating for the claimant's left shoulder does not compel a contrary determination.
Under § 8-42-107(1)(a), C.R.S. 2002, compensation for permanent disability is limited to benefits under the schedule of disabilities where the claimant suffers an injury or injuries described in § 8-42-107(2). Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996). In contrast, permanent disability is compensated as whole person impairment under § 8-42-107(8) where the claimant suffers an injury or injury not described in the schedule of disabilities. In this context, the term "injury", refers to the manifestation in a part or parts of the body which have been functionally impaired or disabled as a result of the industrial accident. Strauch v. PSL Swedish Healthcare System, supra. The DIME provisions only apply to injuries under § 8-42-107(8). Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998). Thus, the ALJ correctly determined that if the claimant suffered a scheduled injury as asserted by the respondents, the DIME physician's opinion, if any, on the cause of the claimant's left shoulder problems carried no presumptive weight.
Further, where the DIME physician's opinions are ambiguous, it is for the ALJ to determine as a matter of fact the nature of the DIME physician's opinion on the cause of the claimant's condition. Town of Ignacio v. Industrial Claim Appeals Office, supra; Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996). We must uphold the ALJ's interpretation of the DIME report if supported by substantial evidence. Section 8-43-301(8), C.R.S. 2002; Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Assuming arguendo, the claimant suffered an injury not enumerated on the schedule, the ALJ could and did, reasonably infer that the DIME physician did not purport to render an opinion concerning whether the claimant injured her left shoulder on January 3, 2000. ( See Finding of Fact 8). The claimant testified that the DIME physician would not listen to her left shoulder complaints and told her he was only examining her for the right shoulder injury. (Tr. pp. 38, 49). The DIME report also expressly recognized that the claimant developed "bilateral shoulder pain," after the January industrial accident, and acknowledged the claimant was diagnosed with "bilateral shoulder strains." Nevertheless the DIME physician expressly stated that the DIME was "directed at [the claimant's] right shoulder." (Respondents' Hearing Exhibit K pp. 191-192).
In any case, the DIME provisions did not preclude the ALJ from reopening the claim. Under § 8-43-303(1)(a), C.R.S. 2002, an ALJ may reopen any award on the grounds of change of condition, error or mistake of law or fact. State Compensation Insurance Fund v. Industrial Commission, 80 Colo. 130, 249 P. 653 (1926); Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996). Where the issue is one of mistake, an ALJ is required to determine "whether a mistake was made, and if so, whether it was the type of mistake which justifies reopening a case." Travelers Insurance Co., Industrial Commission, 646 P.2d 399 (Colo.App. 1981).
The power to reopen is "permissive," and therefore, we may not interfere with the ALJ's order unless it constitutes an abuse of discretion. Renz v. Larimer County School District Poudre R-1, supra; Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986). An abuse of discretion is not shown unless the ALJ's order is beyond the bounds of reason, as where it is unsupported by the evidence or is contrary to the applicable law. Coates Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1994).
Contrary to the respondents' further contention arguments, the failure to exercise procedural or appellate rights is not fatal, and is only one factor to be considered by the ALJ in determining whether there has been a mistake or error that warrants reopening the claim. Standard Metals Corp. v. Gallegos, 781 P.2d 142 (Colo.App. 1989). The ALJ may also consider other matters, including whether or not perpetuating a mistake unreasonably circumvents the objectives of the Workers' Compensation Act. Indeed, the rationale for reopening based on mistake is that the goal of achieving a just result overrides the litigants' interest in obtaining a final resolution. Koch Industries v. Pena, 910 P.2d 77 (Colo.App. 1995).
We note that the Workers' Compensation Rule XIV(L)(5), 7 Code Colo. Reg. 1101-7 explicitly states that "only one" DIME per case shall be issued on the medical impairment." It is also well established that MMI is not divisible, and medical impairment cannot be rated until the claimant reaches MMI from all compensable components of the injury. See City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997). It follows that evidence the claim was closed by final admission of liability prior to the date the claimant reached MMI for all components of the industrial injury may support a finding of mistake or error which justifies reopening the claim.
Here, the ALJ found with record support that there was only one industrial accident and that the January 3 accident caused injuries to the right and left shoulders. This finding supports the conclusion that the parties mistakenly treated the left shoulder injury as a separate claim and the respondents mistakenly filed a final admission of liability based on Dr. Paz's finding of MMI and the DIME physician's rating for medical impairment to the right shoulder.
Further, we reject the respondents contention that the September 2001 recommendation for the left shoulder is not evidence of a change of condition because the left shoulder surgery was recommended 61 days prior to the filing of the November 16, 2001, Final Admission of Liability. A worsening of condition for purposes of the reopening statute refers to a worsening of the claimant's condition from the industrial injury after MMI. See El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993); Donohoe v. ENT Federal Credit Union, W.C. No. 4-171-210 (September 15, 1995). This is true because MMI is the point in time when no further medical care is reasonably expected to improve the condition." Section 8-40-201(11.5), C.R.S. 2002. See City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997); El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993).
As found by the ALJ, the record contains evidence that left shoulder surgery was not recommended until September 2001. Accordingly, this evidence supports a finding that the claimant's condition worsened after January 2001, the date Dr. Paz originally placed the claimant at MMI.
To the extent the respondents have further arguments, they do not alter our conclusions.
For her part, the claimant requests that we correct an error in the ALJ's order where he transposed Dr. Paz's name for the name of Dr. Stahl as the authorized treating physician. The claimant did not file a petition to review. Consequently, the claimant's request is not properly before us on review. See Schneider National Carriers, Inc. v. Industrial Claim Appeals Office, 969 P.2d 817 (Colo.App. 1998). Moreover, we note that the order on review requires the respondents to provide additional treatment from Dr. Stahl. Therefore, we are unable to ascertain what error the claimant seeks to correct.
IT IS THEREFORE ORDERED that the ALJ's Supplemental Order is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL __________________________________ Kathy E. Dean __________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate this Order is 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. 2002. 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 July 21, 2003 to the following parties:
Jane LaPean, 4420 Teller St., Wheat Ridge, CO 80033
AON Innovative Solutions, 13922 Denver West Pkwy., Golden, CO 80401
Continental Casualty Company, c/o Patti Mix, Cambridge Integrated Services, 1501 Luna Rd., #102, Carrollton, TX 75006
Rebecca Greben, IME Coordinator, Tower 2, #640, Division of Workers' Compensation — Interagency Mail
Kevin C. Smith, Esq., 3801 E. Florida Ave., #900, Denver, CO 80210 (For Claimant)
Cindy Slevin, Esq. and Dawn Watts, Esq., 10200 E. Girard Ave., #C-145, Denver, CO 80231 (For Respondents)
BY: A. Hurtado