Opinion
W.C. No. 4-293-337
December 14, 1999
ORDER
The claimant has filed a Petition to Review an order of Administrative Law Judge Stuber (ALJ) which denied her request for a second medical impairment evaluation. We dismiss the appeal for lack of a final order.
In 1995 the claimant suffered a compensable injury. On October 17, 1996, Dr. Simon placed the claimant at maximum medical improvement with zero permanent medical impairment. Dr. Simon also referred the claimant to Dr. Telatnik for future medical treatment as provided by Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). On July 13, 1998, Dr. Telatnik referred the claimant to the National Jewish Hospital for a medical impairment rating.
The ALJ determined that insofar as the claimant disputes Dr. Simon's medical impairment rating the claimant is required to request an independent medical examination (IME) under the provisions of § 8-42-107(8)(c), C.R.S. 1999. However, the ALJ determined that the respondents' admission of liability for Grover-type medical benefits does not render them responsible for the costs of a second medical impairment rating. Therefore, the ALJ denied the claimant's request for an order requiring the respondents to pay the costs of a medical impairment rating at the National Jewish Hospital.
Under § 8-43-301(2), C.R.S. 1999, a party dissatisfied with an order "which requires any party to pay a penalty or benefits or denies a claimant a benefit or penalty," may file a petition to review. Orders which do not require the payment of benefits or penalties, or deny the claimant benefits or penalties are interlocutory and not subject to review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Only final orders are subject to our review. Director of the Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986).
We have previously held that an order which determines liability for the cost of a Division-sponsored independent medical examination (IME) to obtain a medical impairment rating is not subject to review because the order does not award or deny any "benefit" or "penalty" within the meaning of the Workers' Compensation Act. See American Express v. Industrial Commission, 712 P.2d 1132 (Colo.App. 1985); Parra v. Sonnenalp Properties, Inc., W.C. No. 3-108-875 (May 17, 1994); Martinez v. CIGNA Insurance, W.C. No. 4-153-571, (April 21, 1994). This is true because a compensable medical benefit is designed to "cure and relieve the employee from the effects of the injury." Section 8-42-101(1)(a), C.R.S. 1999; Public Service Company of Colorado v. Industrial Claim Appeals Office, 979 P.2d 584 (Colo.App. 1999). An impairment rating is not designed to cure or relieve the effects of the industrial injury. Rather, it serves an evidentiary function for the purpose of determining the amount of a permanent disability award. It follows that an order denying a request for a second medical impairment rating does not award or deny any "benefit" or "penalty" within the meaning of the Workers' Compensation Act (Act). See American Express v. Industrial Commission, 712 P.2d 1132 (Colo.App. 1985).
Here, the sole issue before the ALJ was the claimant's request for a second medical impairment evaluation. The ALJ denied the request and expressly reserved all other issues for future determination. Consequently, the ALJ's order does not award or deny any benefits within the meaning of § 8-42-301(2), and is not currently reviewable.
IT IS THEREFORE ORDERED that the claimant's Petition to Review the ALJ's order dated March 15, 1999, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
An action to modify or vacate this Order may be commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed December 14, 1999 to the following parties:
Suzan Omer, P.O. Box 6955, Woodland Park, CO 80866
Lone Star Steakhouse, P.O. Box 12726, Wichita, KS 67277
General Accident Insurance Company, 5910 N. Central Expressway, #500, Dallas, TX 75206
Monica Olsen, Crawford Company, 5330 Manhattan Cir., #G, Boulder, CO 80303
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909 (For Claimant)
Royce W. Mueller, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY A. Pendroy
IN RE PADILLA, W.C. No. 4-342-977 (12/15/99) IN THE MATTER OF THE CLAIM OF DELAINE PADILLA, Claimant, v. ST. MARY'S CORWIN HOSPITAL, Employer, and CATHOLIC HEALTH INITIATIVES, Insurer, Respondents. W.C. No. 4-342-977 INDUSTRIAL CLAIM APPEALS OFFICE December 15, 1999
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) insofar as the ALJ awarded temporary total disability benefits commencing February 4, 1998. We affirm.
On May 23, 1997, the claimant suffered a compensable back injury, which was conservatively treated. On January 12, 1998, Dr. Cook placed the claimant at maximum medical improvement (MMI).
The claimant reinjured her back on September 8, 1997, in a motor vehicle accident which was unrelated to the employment. On February 4, 1998, the claimant left work to undergo back surgery. In a report dated June 23, 1998, Dr. Crute opined that the motor vehicle accident was an "exacerbating" factor, and not the causative factor in the claimant's need for surgery. Dr. Crute apportioned 80-90 percent of the claimant's "difficulties" to her employment and 10-20 percent to the motor vehicle accident. Dr. Sandell agreed with Dr. Crute's opinion about the cause of the need for surgery and apportioned 50 percent of the claimant's back treatment to the industrial injury. Similarly, in a report dated March 2, 1998, Dr. Reilly agreed with Dr. Crute's finding of a causal connection between the industrial injury and the surgery.
The claimant requested a Division-sponsored independent medical examination (IME) to dispute Dr. Cook's finding of MMI. In a report dated October 26, 1998, the IME physician, Dr. Aschberger opined the claimant is not at MMI because she has not received postoperative physical therapy.
Crediting the opinions of Dr. Crute and Dr. Reilly, the ALJ found the respondents failed to overcome Dr. Aschberger's opinion that the claimant is not at MMI. The ALJ also determined the claimant proved that her wage loss after the surgery, was to "some degree" the result of the industrial injury. Therefore, the ALJ ordered the respondents to pay temporary total disability benefits commencing February 4, 1998.
On review, the respondents contend the ALJ misapplied the burden of proof by failing to require the claimant to present"clear and convincing evidence" to overcome Dr. Aschberger's opinion that the surgery was solely necessitated by the motor vehicle accident. We perceive no error.
As argued by the respondents, the IME physician's opinion concerning the cause of the claimant's need for additional treatment is an inherent part of the physician's determination of MMI. See Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998); Egan v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA0821, November 13, 1998). Consequently, the IME physician's determination of "causation" is binding unless overcome by "clear and convincing evidence."
However, where the IME report is subject to conflicting inferences, the interpretation of the IME physician's opinion on the issue of causation is a question of fact to be resolved by the ALJ. See Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Because this determination is factual in nature, we must uphold the ALJ's resolution if supported by substantial evidence in the record. Section 8-42-301(8), C.R.S. 1999; Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996).
Here, the IME report is subject to conflicting inferences. ( See Aschberger depo. p. 46). Dr. Aschberger opined that the timing of the claimant's back surgery was precipitated by the motor vehicle accident, and that it is "possible" the claimant would not have required surgery if the motor vehicle accident had not occurred. (Aschberger depo. p. 25). However, he also stated that the industrial injury "played a role" in the claimant's need for the surgery because the back had been compromised by the industrial injury, as indicated by the presence of a radicular abnormality prior to the motor vehicle accident. (Aschberger depo. p. 26). Furthermore, Dr. Aschberger agreed with Dr. Sandell that the industrial injury is the proximate cause for 50 percent of all back treatment the claimant received after the motor vehicle accident. (Aschberger depo. pp. 29, 40). Therefore, Dr. Aschberger opined that the claimant was not at MMI for the industrial injury prior to the back surgery. (Aschberger depo. p. 30).
Within his sole prerogative, the ALJ resolved the conflict by crediting Dr. Aschberger's opinion that the industrial injury was at least a partial cause of the need for surgery on February 4, 1998. Accordingly, insofar as the respondents disputed Dr. Aschberger's finding that the claimant is not at MMI, it was the respondents' burden to overcome Dr. Aschberger's opinions by clear and convincing evidence.
Moreover, there is substantial evidence in the medical reports of Dr. Crute, Dr. Sandell and Dr. Reilly to support the ALJ's finding that the respondents failed to sustain their burden to overcome Dr. Aschberger's opinions. Consequently, the respondents have failed to establish grounds which afford us a basis for disturbing the award of benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated April 28, 1999, 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed December 15, 1999 to the following parties:
Delaine Padilla, 1431 E. Orman Ave., Pueblo, CO 81004
Penrose Hospital, 4815 List Dr., P.O. Box 7021, Colorado Springs, CO 80933-7021
Catholic Health Initiatives, Attn: Kathy Lindgren, 1115 Elkton Dr., #400, Colorado Springs, CO 80907
Jordan S. Levine, Esq., 3515 S. Tamarac Dr., #200, Denver, CO 80237 (For Claimant)
Karen R. Wells, Esq., 3900 E. Mexico, #1000, Denver, CO 80210 (For Respondents)
BY: A. Pendroy