Opinion
W.C. No. 4-732-992.
April 26, 2010.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated December 7, 2009, that determined Division-sponsored independent medical examination (DIME) physician's determination on medical impairment had been overcome and found that the claimant had reached maximum medical improvement (MMI) without impairment based upon the opinion of a treating physician. We set the order aside and remand for entry of a new order.
The claimant worked for Boulder Toyota-Scion (BT) as a mechanic from 1998 until October 12, 2007. The claimant filed a claim alleging he had suffered bilateral carpal tunnel syndrome (CTS) while working for BT and the insurer filed an admission of liability. Dr. Orgel as the authorized treating physician (ATP) released the claimant at MMI with no impairment or restrictions on June 20, 2007.
The claimant challenged the MMI determination and underwent a DIME with Dr. Fillmore on December 10, 2008. The DIME physician concluded that the claimant remained at MMI for his CTS. However, the DIME physician determined that the claimant was not at MMI. for his ulnar neuropathy. The DIME physician recommended reevaluation to determine if additional treatment such as surgery was appropriate. If no surgery was recommended then the DIME physician felt the claimant would be at MMI and had suffered a 24 percent right upper extremity impairment and a 23 percent left upper extremity impairment for his ulnar nerve condition.
Dr. Steinmetz opined that a recent EMG of the claimant's ulnar nerve showed normal results. Dr. Steinmetz opined that the claimant remained at MMI for his CTS. Dr. Lambden opined that the claimant did not have a clinical diagnosis of ulnar neuropath. Dr. Lambden opined that the DIME's opinion was based solely on symptomatic complaints because there was not objective evidence to support the diagnosis. Dr. Lambden noted that the claimant did not have any EMG evidence of ulnar nerve entrapment and that surgery was not recommended. Dr. Lambden concluded that the claimant had reached MMI for his ulnar nerve condition and that the DIME physician's opinion was clearly incorrect. Dr. Lambden explained that ulnar neuropathy is typically a congenital defect and not an occupational disease. Dr. Lambden acknowledged that ulnar neuropathy could be cause by highly repetitive job duties that stretch the ulnar nerve however, the claimant's work at BT did not constitute repetitive activity that was capable of causing ulnar neuropathy. Because the claimant did not have any EMG evidence of ulnar nerve entrapment Dr. Lambden explained that surgery was not recommended and the claimant had reached MMI for his ulnar nerve condition.
The ALJ determined that the DIME physician had erroneously determined that the claimant had not reached MMI for his ulnar nerve condition and therefore the claimant had reached MMI on August 14, 2008 as determined by Dr. Orgel without impairment. The ALJ determined that the claimant had failed to demonstrate that it was more probably true than not that he suffered an occupational disease of ulnar neuropathy during the course and scope of his employment with BT.
The claimant argues that the ALJ erred in failing to apply the enhanced burden of proof, by clear and convincing evidence, in determining that the respondents had overcome the opinion of the DIME physician regarding MMI. The claimant argues that the findings suggest the ALJ held the respondents to a preponderance standard. The claimant requests that we remand the matter back to the ALJ for consideration of the DIME physician's determination that the claimant had not reached MMI. We are persuaded that a remand is necessary.
We note that the ALJ in his conclusions of law dealing with the issue of "Overcoming the DIME" specifically stated that a DIME physician's finding of MMI is binding on the parties unless overcome by "clear and convincing evidence." See Conclusion of Law 4 at 6. However, in other sections of the order it appears the ALJ may have determined that clear and convincing standard did not apply in overcoming the opinion of the DIME physician regarding MMI. The ALJ found that "BT has established that it is more probably true than not that Dr. Fillmore's MMI determination regarding Claimant's ulnar neuropathy was incorrect." Conclusion of Law § 5 at 6. We further note that the ALJ found that BT had presented sufficient "evidence to establish that it is more probably true than not that" the DIME physician erroneously determined that the claimant had not reached MMI for his ulnar nerve condition. Conclusion of Law § 6 at 7.
As we read the ALJ's order he was aware that pursuant to § 8-42-107(8)(b)(III), C.R.S., a DIME physician's finding of MMI is binding on the parties unless overcome by clear and convincing evidence. Montoya v. Industrial Claim Appeals Office 203 P.3d 620 (Colo. App. 2008); Brownson-Rausin v. Industrial Claim Appeals Office 131 P.3d 1172 (Colo. App. 2005). Nevertheless, the ALJ after noting that the DIME physician's finding of MMI is binding unless overcome by clear and convincing evidence stated, "However, the increased burden of proof required by DIME procedures is only applicable to non-scheduled impairments and is inapplicable to scheduled injuries." The ALJ relied on Delaney v. Industrial Claim Appeals Office 30 P.3d 691 (Colo. App. 2000) and Maestas v. American Furniture Warehouse, W.C. No. 4-662-369 (June 5, 2007). In our view, the ALJ's reliance on Delaney and Mastas is misplaced.
In Delaney, the court determined that an injured worker does not have an absolute right to a DIME as a prerequisite to a hearing on permanency in cases that clearly involve only scheduled injuries. In coming to this conclusion, the Delaney court explained that scheduled and non-scheduled impairments are treated differently under the Act for purposes of determining permanent disability benefits. In particular, the procedures of § 8-42-107(8)(c), which states that a DIME finding as to permanent impairment can be overcome only by clear and convincing evidence and that such finding is a prerequisite to a hearing on permanent impairment, have been recognized as applying only to non-scheduled impairments.
However, the Delaney court further explained that the General Assembly provided that the procedures for challenging determinations of maximum medical improvement set forth in paragraph § 8-42-107(8)((b) shall be available in cases of scheduled injuries and also in cases of injuries that are not set forth in said schedule. Thus, the General Assembly expressly made the procedures provided for in § 8-42-107(8) related to determination of MMI available in cases of scheduled injuries as well as non-scheduled injuries. As we read Delaney the requirements for overcoming the opinions of a DIME physician on MMI by clear and convincing evidence under § 8-42-107(8) apply to non-scheduled and scheduled injuries. This is consistent with a plain reading of § 8-42-107(8)(a), which provides that the procedures for determination of MMI are available in cases of injuries set forth in the schedule and also in cases of injuries that are not set for in the schedule.
Further, we note that in Maestas v. American Furniture Warehouse, supra the Panel noted that the increased burden of proof required by the DIME procedures is not applicable to scheduled injuries, but that statement was in the context of determining the burden of showing permanent impairment by a preponderance of the evidence. The Panel did not determine in Maestas that the increased burden of proof for overcoming a DIME physician's opinion on MMI does not apply in cases of scheduled injuries.
Therefore, the ALJ's order suggests that he misapprehended the applicable burden of proof as the preponderance of the evidence on the issue of overcoming a DIME physician's opinion on MMI in case of a scheduled injury. Under these circumstances, because the ALJ may have misapplied the law, we set aside the order and remand for the entry of a new order. Section 8-43-301(8), C.R.S. On remand, the ALJ shall enter a new order and determine whether the respondents overcame the opinion of the DIME physician on MMI by clear and convincing evidence. In reaching this result, we should not be understood as expressing any opinions concerning the factual issue, which the ALJ must now resolve.
In light of this result, it is premature to address the claimant's arguments concerning whether the ALJ erred on the issue of permanent medical impairment for the carpal tunnel syndrome. Permanent disability benefits for injuries are determined at the time of MMI, and on remand the ALJ must first determined whether the claimant has reached MMI. See Golden Animal Hosp. v. Horton 897 P.2d 833 (Colo. 1995). The ALJ may enter new findings on remand.
IT IS THEREFORE ORDERED that the ALJ's order dated December 7, 2009 is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
DAVID KAMAKELE, 3421 LEOPARD PLACE, LOVELAND, CO, (Claimant).
BOULDER TOYOTA-SCION, Attn: BRAD HERSHELMAN, C/O: /OR ASPEN WHEEL ALIGN BRAKE, BOULDER, CO, (Employer).
ADVANTAGE WORKERS' COMP INS /OR TRUCK INS EXCH, Attn: DEREK SPRAGUE, C/O: PINNACLE RISK MANAGEMENT SERVICES, LOUISVILLE, CO, (Insurer).
SAWAYA, ROSE KAPLAN, PC, Attn: BRITTON MORRELL, ESQ., GREELEY, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: LYNDA S NEWBOLD, ESQ., DENVER, CO, (For Respondents).
VARNELL ASSOCIATES, Attn: JOE M ESPINOSA, ESQ., DENVER, CO, (Other Party).