Opinion
W.C. No. 4-747-473.
October 26, 2009.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Walsh (ALJ) dated June 10, 2009, that ordered the respondents to pay the claimant permanent partial disability benefits based upon a whole person impairment and also reopened the claim for further diagnostic testing and medical treatment. We affirm.
The claimant sustained an admitted work-related accident on January 10, 2008 when he slipped and fell in the company parking lot while spreading ice-melt. The claimant fell onto his left shoulder. On July 18, 2008, Dr. Rahill placed the claimant at maximum medical improvement (MMI) and assigned an impairment rating of 36 percent of the right upper extremity, which converted to 22 percent whole person impairment. On July 28, 2008 Dr. Quick issued a nearly identical impairment rating of 37 percent scheduled impairment, which also converted to a 22 percent whole person impairment. The respondents filed a Final Admission of Liability for 37 percent scheduled impairment rating. The ALJ found that the claimant had established that he sustained a functional impairment beyond the shoulder joint and awarded the claimant permanent partial disability (PPD) benefits based on a whole person permanent impairment rating of 22 percent.
The ALJ also found that the claimant had proven by a preponderance of the evidence that his condition worsened in the months following MMI. The ALJ noted new findings were present on physical examinations and new symptoms emerged. Dr. Hughes had recommended evaluation and treatment aimed at addressing the claimant's new and worsened symptoms. Accordingly, the ALJ found that the claimant was not at MMI and ordered the claim reopened for further diagnostic tests and treatment.
On appeal, the respondents contend that the ALJ erred in relying upon evidence of the claimant's worsened condition when awarding PPD benefits. The respondents argue that in finding that the claimant sustained functional impairment not on the schedule of disabilities the ALJ used the same evidentiary findings used to reopen the claim based upon a change of condition. The respondents argue that the ALJ erred in converting the scheduled rating based upon the claimant's current condition, as opposed to the claimant's condition at MMI. The respondents request that the matter be remanded for a new order, with instructions to base any PPD award upon the claimant's functional impairment at MMI. The respondents argue that if the ALJ is unable to determine functional impairment at MMI then the request for a permanent impairment rating must be delayed until the claimant is again placed at MMI. We are not persuaded that a remand is necessary.
We initially note that the applicability of the reopening statute is not entirely clear to us because for it to apply there must be an "award" which closed the claim. Dowrey v. Hilton Hotel, W. C. No. 3-114-127 (November 19, 2003). An award that closes the claim may come in the form of a final admission of liability, an order that has not been appealed or a settlement. See Hanna v. Print Expediters Inc., 77 P.3d 863 (Colo. App. 2003); Dyrkopp v. Industrial Claim Appeals Office, 30 P.3d 821 (Colo. App. 2001); Koch Industries, Inc. v. Pena, 910 P.2d 77 (Colo. App. 1995).
Here the final admission of liability had been objected to and there was no order closing the claim. However, the parties appear to have anticipated that there would be a final order of the ALJ entered on the issue of permanency because the claimant had been placed at MMI and then the issue would shift to whether the claimant's condition had worsened since that point. Therefore, we do not perceive any procedural barrier to the ALJ first considering the issue of the extent of the claimant's permanent impairment at the time he was placed at MMI and then considering whether the claimant had proven by a preponderance of the evidence that his condition had worsened in the months following MMI.
To the extent the respondents' argument suggests that the issue of PPD was not ripe at the time of hearing due to the worsening, we agree with the claimant that the respondents did not raise this issue at the hearing. Therefore, such argument has not been preserved for our review. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo. App. 1987); Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo. App. 1994).
We acknowledge that ALJ relied on similar factual findings to determine both conversion and worsening. As an example, in his conclusions of law regarding the issue of whether the claimant was limited to a scheduled disability award the ALJ discussed Dr. Hughes' opinion including visible and palpable hypertonicity in his left trapezius muscle which acts as a tether to asymmetrically limit the claimant's cervical range of motion. Conclusions of Law § 4 at 5. The ALJ in discussing new findings to support a reopening again noted visible and palpable left trapezius hypertonicity, which measurably and asymmetrically limits the claimant's head and neck motion. § 12 at 7. We note that the claimant concedes that the ALJ relied on similar factual findings to determine both conversion and worsening.
However, we are not persuaded that a remand is necessary with instructions to the ALJ to base any PPD award upon the claimant's functional impairment at MMI. As we read the ALJ's order, he first considered the claimant's various symptoms and conditions that existed at the time the claimant reached MMI. These considerations lead him to the conclusion that the claimant had sustained a functional impairment beyond the shoulder joint. The ALJ then again considered a worsening of those same symptoms and conditions in deciding to grant the petition to reopen. We therefore reject the respondents' argument that the ALJ confused the issues involved in the disputed petition to reopen with the disputed issues involving whether the claimant had sustained a functional impairment beyond the shoulder joint. Consequently, we do not perceive an abuse of discretion on the ALJ's part in granting the claimant's petition to reopen.
In reaching our conclusion we recognize that MMI is a predicate to a determination of claimant's medical impairment rating. See MGM Supply Co. v. Indus. Claim Appeals Office, 62 P.3d 1001 (Colo. App. 2002). In addition, a claimant's permanent impairment rating cannot be determined if he has not yet reached MMI. Leprino Foods Co. v. Industrial Claim Appeals Office of State 134 P.3d 475 (Colo. App. 2005).
However, we do not read the ALJ's order as demonstrating that he awarded PPD benefits based upon the claimant's worsened condition following MMI rather than on the claimant's functional impairment at MMI. Here the claimant's right to a determination of PPD benefits ripened once he reached MMI. See § 8-42-107(8)(c) C.R.S. 2009; Osborne v. Jon C Thomas. P.C W. C. No. 4-452-470 (June 14, 2006). The respondents had filed a final admission of liability based on the medical evidence at the time MMI had been reached and when the claimant had been given an impairment rating. Exhibit B.
At the point the claimant was at MMI the question became whether the claimant sustained an "injury" resulting in a "loss of an arm at the shoulder" within the meaning of § 8-42-107(2)(a), C.R.S. 2009, or a whole person impairment. The resolution of this question is one of fact for determination by the ALJ. Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo. App. 1996); Strauch v. PSL Swedish Helathcare System, 917 P.2d 366 (Colo. App. 1996).
As we read the written order, the ALJ correctly identified the issue as whether the claimant's scheduled rating of impairment should be converted to whole person impairment as of the time of MMI. The ALJ specifically noted that a medical impairment rating is determined at the time the claimant is placed at MMI. Conclusion of Law § 6 at 6. The ALJ then, with record support, made findings supporting a conclusion that conversion of the shoulder impairment rating to a whole person rating was appropriate in this case.
In our view, these findings were supported by substantial evidence. Because the issue is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2009. Therefore, there is no need to remand the case for the ALJ to determine again the claimant's entitlement to PPD benefits based on his functional impairment at MMI. In our view that determination has already been accomplished.
After the ALJ determined the claimant's entitlement to PPD, the issue became whether the claim should be reopened. Section 8-43-303 authorizes an ALJ to reopen "any award" on the grounds of, among other things, error, mistake, or a change in condition. Cordova v. Indus. Claim Appeals Office, 55 P.3d 186, 189 (Colo. App. 2002). A change in condition refers either "to a change in the condition of the original compensable injury or to a change in claimant's physical or mental condition which can be causally connected to the original compensable injury." Chavez v. Indus. Comm'n, 714 P.2d 1328, 1330 (Colo. App. 1985); accord Anderson v. Longmont Toyota, Inc., 102 P.3d 323, 330 (Colo. 2004).
The reopening authority granted ALJs by § 8-43-303 is permissive, and whether to reopen a prior award when the statutory criteria have been met is left to the sound discretion of the ALJ. Heinicke v. Industrial Claim Appeals Office 197 P.3d 220 (Colo. App. 2008); Cordova, 55 P.3d at 189. The party seeking reopening bears "the burden of proof as to any issues sought to be reopened." § 8-43-303(4), C.R.S. 2009. In the absence of fraud or clear abuse of discretion, the ALJ's decision concerning reopening is binding on appeal. Jarosinski v. Indus. Claim Appeals Office, 62 P.3d 1082, 1084 (Colo. App. 2002). An abuse of discretion occurs when the ALJ's order is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law. Id.
Here the ALJ made, with record support, the following findings of fact related to the issue of reopening. The claimant testified that his condition began to worsen several months after he was placed at MMI. Tr. at 17 19. He described his symptoms in the top of his shoulder, his neck, upper back and chest as increasing in both duration and intensity. Tr. at 18. He required additional medication to address his symptoms and was forced to modify his functioning. Tr. at 19-20. Dr. Hughes saw the claimant on February 10, 2009 and opined that the claimant's condition worsened based upon multiple documented objective signs and symptoms. Exhibit 1. Dr. Hughes opined that the claimant was not at MMI and required further medical diagnostics and treatment. Exhibit 1 at 5-6. On February 23, 2009, Dr. Quick reviewed the report of Dr. Hughes and agreed that the claimant was no longer at MMI based on his worsening symptoms. Exhibit 2 at 1-2. The ALJ concluded that a preponderance of the evidence demonstrated the worsening was related to the traumatic injury and reopened the claim. In our view, the respondents have not shown that the ALJ abused his discretion in reopening the claim.
IT IS THEREFORE ORDERED that the ALJ's order dated June 10, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Thomas Schrant
____________________________________ Curt Kriksciun
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JAMES MICHEL, 4348 N CHESTNUT STREET #204, COLORADO SPRINGS, CO, 80907 (Claimant)
FREEDOMROADS HOLDING, Attn: KATHY KAMINSKY, TWO MARRIOTT DRIVE, LINCOLNSHIRE, IL, 60069 (Employer)
GALLAGHER BASSETT SERVICES, Attn: SUZI LIMPPO, P O BOX 4068, ENGLEWOOD, CO, 80155 (Insurer)
LAW OFFICE OF STEPHANIE J. STEVENSON, PC, Attn: STEPHANIE J. STEVENSON, ESQ., 1526 W COLORADO AVE, COLORADO SPRINGS, CO, 80904 (For Claimant)
RITSEMA LYON, Attn: ELIOT J WIERER, ESQ., 999 18TH STREET, SUITE 3100, DENVER, CO, 80202 (For Respondents)