Opinion
W.C. No. 4-430-580
August 5, 2002
ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which awarded permanent partial disability benefits based on 5 percent whole person medical impairment, determined average weekly wage and awarded temporary partial disability benefits from July 12, 1999 to July 11, 2000. We affirm the awards of disability benefits, set aside the determination of average weekly wage and remand for the entry of a new order on the issue of average weekly wage.
The claimant suffered a compensable occupational disease which affected her upper extremities. Dr. Lund opined the claimant suffered 5 percent whole person impairment due to impaired range of motion in the upper extremities and mental impairment. The respondents filed a Final Admission of Liability for the payment of permanent partial disability benefits consistent with Dr. Lund's rating. The claimant objected and requested a DIME.
The DIME physician, Dr. Struck, assigned a 32 percent whole person impairment rating. The rating included 12 percent whole person impairment for each upper extremity based upon the cumulative trauma disorder matrix found in the Rules of Procedure, Part XIX, 7 Code Colo. Reg. 1101-3, 5 percent mental impairment and 7 percent impairment of the thoracic spine. The latter impairment rating was based on range of motion deficits and a specific disorder of the thoracic spine under Table 53II(b) of the American Medical Association Guides to the Evaluation of Permanent impairment, Third Edition, Revised (AMA Guides). However, Dr. Struck apportioned 50 percent of the impairment to preexisting undifferentiated connective tissue disease. Consequently, Dr. Struck's final rating was 16 percent whole person impairment.
Crediting Dr. Lund's testimony, the ALJ found Dr. Struck erroneously included a rating for thoracic spine impairment. The ALJ also found Dr. Struck deviated from the AMA Guides in failing to have the claimant perform 6 to 8 hours of work simulation prior to rating the claimant's cumulative trauma disorder. Therefore, the ALJ determined the respondents overcame the DIME physician's rating. The ALJ then credited Dr. Lund's opinions to find the claimant suffered 5 percent whole person impairment.
The ALJ also determined the average weekly wage to be $612.54, inclusive of the cost of COBRA replacement benefits. However, the ALJ refused to include "bonus" earnings to the average weekly wage. Further, the ALJ awarded temporary partial disability benefits from July 12, 1999 to July 11, 2000, the date the claimant reached maximum medical improvement.
I.
On review, the claimant first contends the ALJ mistakenly assumed the claimant disputed Dr. Struck's rating and, therefore, the ALJ misassigned the burden of proof. We disagree.
The applicable law is undisputed. Section 8-42-107(8)(c), C.R.S. 2001, provides that the DIME physician's rating is presumed to be correct and is binding on the parties and the ALJ unless overcome by "clear and convincing evidence." The party who disputes the DIME physician's rating bears the burden of proof. "Clear and convincing evidence" is evidence which establishes that it is "highly probable" the DIME physician's rating is incorrect. See Postelwait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995).
Under former § 8-42-104(1), C.R.S. 1998 [amended 1999 Colo. Sess. Laws, ch. 141 at 410 for injuries occurring after July 1, 1999], permanent partial disability may be apportioned to a preexisting condition. However, in Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996) , the Supreme Court concluded that when apportioning permanent partial disability benefits due to a preexisting condition, "medical impairment" cannot be equated to "disability." Consequently, the court held that under § 8-42-104(2), apportionment is only appropriate if the ALJ finds the preexisting condition constituted a "disability."
Here, the respondents applied for a hearing to overcome Dr. Struck's impairment rating. At the commencement of the hearing claimant's counsel stated that the claimant disputed Dr. Struck's apportionment under Askew v. Industrial Claim Appeals Office, supra. Thereafter, the ALJ placed the burden to overcome the DIME on the respondents. ( see Tr. p. 7).
The ALJ's written order reflects her express awareness that the respondents sought to overcome the DIME physician's rating and the claimant contested Dr. Struck's apportionment. (Finding of Fact 7; Conclusions of Law 2). Moreover, applying Askew v. Industrial Claim Appeals Office, supra, the ALJ determined no apportionment was appropriate. (Conclusion of Law 3). Therefore, the record does not support the claimant's contention the ALJ incorrectly assigned the burden of proof.
II.
Next, the claimant contends the ALJ erred in finding the respondents overcame the DIME physician's rating. We perceive no basis to interfere with the ALJ's determination.
The question of whether the DIME physician's rating has been overcome by "clear and convincing" evidence is one of fact for determination by the ALJ. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). In resolving this issue, the ALJ must consider the factual question of whether the DIME physician properly applied the AMA Guides and other rating protocols. See Metro Moving Storage Co. v. Gussert, supra. Section 8-42-107(8)(c), requires that all whole person impairment ratings be conducted by Level II accredited physicians in accordance with the AMA Guides. Proof of a DIME physician's deviation from the rating protocols of the AMA Guides is evidence the ALJ may consider in making the ultimate determination of whether the DIME's rating has been overcome by clear and convincing evidence. Metro Moving Storage Co. v. Gussert, supra.
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. 2001. Under this standard we must view evidence in the light most favorable to the prevailing party, and defer to the ALJ's assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review is "exceedingly narrow." Metro Moving Storage Co. v. Gussert, 914 P.2d at 415.
Dr. Lund opined the occupational disease was confined to the claimant's upper extremities and that the remainder of the claimant's impairment was caused by the unrelated, non-industrial connective tissue disorder. Dr. Lund also stated there was no objective thoracic injury and that the claimant was never treated for a thoracic injury. (Lund depo. p. 21). Further, Dr. Lund opined that it is improper to rate thoracic impairment under Table 53 of the AMA Guides in the absence of a documented injury to the thoracic spine. (Lund depo. p. 24). Consequently, there is substantial evidence in the testimony the ALJ found persuasive to the finding that it was highly probable Dr. Struck erred in assigning a rating for impairment to the thoracic spine. See Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998) (DIME physician's opinion on the cause of a claimant's disability is an inherent part of the diagnostic assessment which comprises the DIME process which must be overcome by clear and convincing evidence).
Dr. Lund also opined Dr. Struck erroneously rated the claimant's upper extremity impairment under the cumulative trauma matrix. Dr. Lund testified the AMA Guides does not allow a rating based on a "general" diagnosis of cumulative trauma disorder. (Lund depo. pp. 17, 19). Further, he stated that although Level II accreditation classes review Division of Workers' Compensation rules for the evaluation of permanent impairment, he knew of no rule which allowed Dr. Struck to rate the claimant's upper extremity impairment as he did instead of assigning a rating for impaired range of motion as recommended by the AMA Guides. (Lund depo. p. 32). He added that the AMA Guides recommend cumulative trauma disorders only be rated after the patient has performed six to eight hours of work simulation. (Lund depo. p. 20).
Here, there was a direct conflict between Dr. Struck and Dr. Lund concerning the proper application of the AMA Guides. The ALJ resolved the conflict against Dr. Struck based upon her implicit determination that Dr. Lund's interpretation of the AMA Guides was better reasoned. The ALJ's findings of fact are supported by substantial evidence and permissible inferences drawn from Dr. Lund's testimony. See Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941) (ALJ considered to possess expert knowledge which renders him competent to evaluate medical evidence and draw plausible inferences from it). Therefore, the ALJ's findings are binding on review. Metro Moving Storage Co. v. Gussert, supra.
The claimant's further arguments have been considered and do not persuade us to alter our conclusions. The claimant essentially requests that we reweigh the expert medical evidence and substitute our judgment for that of the ALJ concerning the probative value and sufficiency of Dr. Lund's testimony. We have no authority to do so. See City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993). Therefore, we may not disturb the ALJ's finding that the respondents' overcame the DIME physician's rating.
III.
The claimant contends the ALJ erroneously refused to include her "bonus" earnings in the average weekly wage. We conclude the ALJ's findings are insufficient to permit appellate review. Section 8-43-301(8).
Average weekly wage is to be calculated in accordance with § 8-42-102 C.R.S. 2001. Under § 8-40-201(19)(a), C.R.S. 2001, the term "wage" is defined as "the money rate at which the services rendered are recompensed under the contract of hire in force at the time of the injury." In order for a particular payment to be considered "wages" it must have a "reasonable, present-day, cash equivalent value," and the claimant must have access to the benefit on a day-to-day basis, or an immediate expectation interest in receiving the benefit under appropriate, reasonable circumstances. Meeker v. Provenant Health Partners, 929 P.2d 26 (Colo.App. 1996). Accordingly, the Meeker court concluded that "personal employee time" (PET) constituted "wages" under this test because the claimant earned it at a fixed rate for each hour worked. Further, once the claimant earned the PET time, it was never forfeited and could be taken as fully compensated sick leave, vacation leave, or converted to cash when the employment ended. Conversely, in City of Lamar v. Koehn, 968 P.2d 164 (Colo.App. 1998) the court concluded that vacation and sick leave earned by the claimant did not constitute "cash equivalents" for purposes of § 8-40-201(19)(a) because the benefits were subject to forfeiture if the claimant accrued a specified maximum number of leave days.
Section 8-40-201(19)(a), also provides that the average weekly wage includes the "fringe benefits" expressly enumerated in subsection 8-40-201(19)(b). See City of LaMar v. Koehn, supra. In Cowland-Feeley v. Century Communications Inc., W.C. No. 4-393-063 (April 5, 2000), which was decided on similar facts, we concluded that "bonuses" are not a form of "fringe benefit" for purposes of the statute. Rather, in Feeley v. Century Communications Inc., supra, we concluded the claimant's bonus earning from HBO/Cinemax were akin to concurrent wages. We reasoned that a "fringe benefit" is normally an item provided by the employer which cannot be reduced to cash and for which there is no present cash value. We adhere to our previous conclusions.
An ALJ has wide discretion to include concurrent wages in the average weekly wage. Broadmoor Hotel v. Industrial Claim Appeals Office, 939 P.2d 460 (Colo.App. 1996); Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo.App. 1988) ; St. Mary's Church Mission v. Industrial Commission, 735 P.2d 902 (Colo.App. 1986). This is true because the overall purpose of the statutory scheme is to "arrive at a fair approximation of the claimant's wage loss and diminished earning capacity." Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993). Therefore, if the specified method of computing the claimant's average weekly wage will not render a fair computation of wages for "any reason," the ALJ has discretionary authority under § 8-42-102(3), C.R.S. 2001, to use an alternative method to determine average weekly wage. Campbell v. IBM Corp., supra.
We may not interfere with the ALJ's calculation of average weekly wage unless an abuse of discretion is shown. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). The standard on review of an alleged abuse of discretion is whether the ALJ's order "exceeds the bounds of reason," as where it is not supported by substantial evidence or is contrary to law. Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985). However, the ALJ's findings must be sufficient to indicate the basis of the order. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992). Further, the findings should not be stated in the form of pure conclusions which afford no meaningful basis to review the findings. Womack v. Industrial Commission, 168 Colo. 364, 451 P.2d 761 (1969).
The claimant testified that in addition to her regular wage from the employer, HBO/Cinemax paid her a bonus for selling subscription services to its cable broadcasting. (Tr. p. 20). She also stated that the LA Times paid her a $5 bonus for each newspaper subscription she sold. (Tr. pp. 22, 23). However, she testified she did not report these earnings on her income tax return.
The ALJ found the claimant received money from HBO/Cinemax each month for selling cable services. The ALJ also found the claimant received gift certificates from the LA Times. However, the ALJ found that these payments were not "wages as defined by "§ 8-42-102(3)" (Conclusions of Law 5). In support, the ALJ credited the testimony of the employer's witness that the payments were not included in the compensation paid by the employer and no taxes were withheld by the employer for these payments. (Finding of Fact 12).
We are unable to ascertain from the ALJ's order whether the ALJ found the bonus income was not "wages" because it was paid by a third party, because it did not meet the Meeker v. Provenant Health Partners, supra, test, because the rate of payment could not calculated or some other reason. Consequently, the ALJ's findings are insufficient to determine whether the ALJ abused her discretion in finding that the claimant's wage loss can be "fairly" calculated without including the bonus income from HBO/Cinemax and the LA Times.
Under such circumstances, it is appropriate to remand the matter to the ALJ for entry of specific findings of fact and conclusions of law concerning the calculation of claimant's average weekly wage. However, the remand should not be understood as requiring the ALJ to increase the claimant's average weekly wage, nor is she prohibited from doing so. We merely require that the ALJ to enter findings which provide a basis for reviewing the order. See Boice v. Industrial Claim Appeals Office, 800 P.2d 1339 (Colo.App. 1990)
III.
Finally the claimant contends the ALJ denied temporary total disability benefits without finding the claimant's disability was non-work related.
The respondents contend temporary total disability was not endorsed for adjudication. We agree with the respondents.
At the commencement of the hearing, the ALJ directed the parties to identify the issues for adjudication. The claimant's attorney stated that the claimant sought an award of temporary partial disability benefits. (Tr. p. 3). Further the ALJ's order only lists the issue of temporary partial disability for adjudication. Therefore, the claimant's entitlement to temporary total disability benefits is not properly before us on review.
Moreover, the ALJ found the claimant's lost time from work was due to reasons unrelated to the occupational disease including chronic bronchitis and the reasons listed on respondent's exhibit K. (Finding of Fact 10, Conclusions of Law 6). Therefore, we reject the claimant's contention the ALJ failed to make findings of fact to support the award of temporary partial disability benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated August 14, 2001, is set aside insofar as it determined average weekly wage and the matter is remanded to the ALJ for the entry of additional findings and a new order on that issue. In all other respects the ALJ's order is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
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, CHRIS 2001. 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 August 5, 2002 to the following parties:
Kim Rivera, 718 S. Union, Colorado Springs, CO 80910
Century Communications, Lynn Nield, Adelphia Communications, 2221 E. Bijou, #101, Colorado Springs, CO 80909
Sentry Insurance, P. O. Box 29466, Phoenix, AZ 85038
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Craig R. Anderson, Esq., 101 N. Tejon, #410, Colorado Springs, CO 80903 (For Respondents)
BY: A. Hurtado