Opinion
W.C. No. 4-388-293
April 17, 2001
CORRECTED ORDER
The respondents have filed a Motion for Corrected Order which requests that we correct an error in our order dated April 3, 2001. Our order denied the claimant's request that we set aside an order of Administrative Law Judge Jones (ALJ) which awarded medical impairment benefits based upon the rating of the Division-sponsored independent medical examiner (DIME), Dr. Roth. In so doing, we concluded the ALJ did not err in finding the claimant failed to prove Dr. Roth was biased.
The respondents contend we erroneously equated Dr. Roth's service as a member of "SelectNet," which is the "preferred provider network" for Pinnacol Assurance (Pinnacol) and Dr. Roth's service on Pinnacol's "physician advisory panel" where he is paid $125 per hour to meet with Pinnacol adjusters and nurses once every 6 weeks to discuss medical issues. The distinction does not alter our conclusion the claimant failed to sustain his burden to prove Dr. Roth was biased. Nevertheless, for the sake of clarity, we shall reissue the order in its entirety with the correction.
The claimant seeks review of the ALJ's orders on the issue of permanent partial disability and future medical benefits. We affirm the award of medical impairment benefits and dismiss without prejudice the petition to review the order on future medical benefits.
On September 26, 1997, the claimant suffered an admitted injury to her left thumb while working as a counselor for emotionally disturbed children. The injury occurred during an altercation with a child who violently jerked the claimant's thumb and wrist. The claimant also alleged injuries to her left hand, left forearm, left shoulder, the back of both thighs, her lower back, upper back, neck, and right shoulder. Further, the claimant complained the injuries aggravated her pre-existing diabetes and resulted in headaches, depression, nightmares, and nausea.
On December 8, 1998, Dr. Santaguida placed the claimant at maximum medical improvement (MMI) with a 27 percent medical impairment to the left upper extremity. Dr. Santaguida did not include a rating for psychological impairment. The claimant disputed Dr. Santaguida's findings and requested a Division-sponsored independent medical examination (DIME).
Dr. Henry Roth was selected to perform the DIME. Dr. Roth agreed with Dr. Santaguida on the date of MMI. Dr. Roth found no range of motion deficits in the claimant's thumb and no ratable joint impairment under the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides). Therefore, Dr. Roth rated the claimant's diffuse upper extremity symptoms using the cumulative trauma disorder staging matrix system set forth in Rule XIX(G), 7 Code Colo. Reg. 1101-3 at 126. Dr. Roth assigned a 12 percent rating for impairment to the upper extremity, which converts to 7 percent whole person impairment. Dr. Roth did not assign a rating for psychological impairment.
The claimant was also examined by Dr. Dahlberg and Dr. McCrary. In a report dated March 30, 1999, Dr. McCrary opined the claimant reached MMI with no permanent impairment. Dr. McCrary deferred to Dr. Dahlberg on the issue of psychological impairment. Dr. Dahlberg opined there was no causal connection between the claimant's psychological symptoms and the industrial injury. (Dahlberg, March 30, 1999).
On her own initiative, the claimant was examined by Dr. Ryan. Dr. Ryan disagreed with Dr. Roth's finding of MMI. Dr. Ryan opined the claimant did not reach MMI until December 1999, when she underwent an x-ray and bone scan to complete her medical "work-up." (Tr. p. 95). Further, Dr. Ryan attributed the claimant's psychological problems to the industrial injury.
The claimant requested a hearing to overcome the DIME's findings. At the hearing, the claimant argued the DIME was invalid because Dr. Roth is a medical consultant for Pinnacol. Relying on the opinions of Dr. Ryan, the claimant also asserted Dr. Roth erred in failing to include a rating for the psychological condition. Therefore, the claimant argued she is entitled to compensation for whole person impairment.
The ALJ found the claimant sustained functional impairment fully enumerated on the schedule of disabilities in § 8-42-107(2), C.R.S. 2000. The ALJ also found the claimant failed to prove that Dr. Roth was biased. Instead, the ALJ found Dr. Roth's opinions were consistent with the medical reports of Dr. Santaguida and Dr. McCrary and rejected the contrary opinions of Dr. Ryan. Therefore, the ALJ determined the claimant failed to overcome the DIME physician's opinions by clear and convincing evidence as required by § 8-42-107(8)(c), C.R.S. 2000. Consequently, in an order dated June 19, 2000, the ALJ approved the respondents' Final Admission of Liability for permanent partial disability benefits in accordance with Dr Roth's upper extremity rating. The claimant timely appealed.
The ALJ issued a Supplemental Order dated December 18, 2000, which awarded future medical benefits. The claimant timely appealed the Supplemental Order.
I.
On review the claimant contends Dr. Roth's opinions are not those of an "independent" medical examiner within the meaning of § 8-42-107(8)(c) because he is a member of the Pinnacol "SelectNet" and serves on Pinnacol's "physician advisory panel" where he is paid $125 per hour to meet with Pinnacol adjusters and nurses once every 6 weeks to discuss medical issues. Under these circumstances, the claimant argues that the selection of Dr. Roth to perform the DIME violated due process and equal protection guarantees of the Colorado and United States constitutions.
The respondents contend this argument was waived. We disagree. The record reveals the claimant's argument was timely asserted before the ALJ. See Sneath v. Express Messenger Service, 931 P.2d 565 (Colo.App. 1996). Nevertheless, the record does not compel a finding that Dr. Roth was biased.
The Rules of Procedure, Part XIV(L)(1) , 7 Code Colo. Reg. 1101-3 at 53, provide that the DIME physician shall be selected by Division of Workers' Compensation from a list of Level II accredited physicians, licensed to practice medicine. The rule also requires that all DIME physicians agree to conduct the DIME "in an objective and impartial manner," and "not evaluate a Division IME claimant if the appearance of or an actual conflict of interest exists for any reason." Rule XIV(L)(2)(e) (h) at 54.
Generally, an adjudicator of fact is impartial if he has no personal, financial, or official stake in the decision. See Mountain States Telephone Telegraph Co. v. Public Utilities Commission, 763 P.2d 1020 (Colo. 1988); Neoplan USA Corp. v. Industrial Claim Appeals Office, 778 P.2d 312 (Colo.App. 1989). Whether the claimant presented sufficient evidence to demonstrate bias is one of fact for the ALJ. Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000.
The claimant presented no evidence that Dr. Roth had a financial stake in the outcome of this particular case or that his participation in SelectNet or on Pinnacol's advisory panel would influence the opinions he rendered in this claim. Dr. Roth denied meeting with any Pinnacol nurses to discuss this claim. In fact, Dr. Roth denied receiving any telephone calls from Pinnacol adjusters in the year preceding the hearing on this claim. (Tr. pp. 110, 128). Neither is there any evidence that either SelectNet or the advisory panel conditioned Dr. Roth's payment on the issuance of opinions or reports favorable to Pinnacol.
Dr. Roth admitted he participated in the physician advisory panel as part of his professional activities in the community, but he stated that it "does not produce any bias for me." (Tr. pp. 109, 110). Further, Dr. Roth admitted Pinnacol was a party to a large portion of DIME's he performed, because Pinnacol insures so many employers. However, he did not know what proportion of his income was derived from Pinnacol. (Tr. pp. 111, 128). Under these circumstances, the claimant's due process and equal protection rights were not implicated.
II.
Similarly, the claimant contends she was denied due process by the order of Prehearing Administrative Law Judge Muramoto (PALJ) which refused to require the respondents to respond to the claimant's interrogatories and request for production of documents concerning Dr. Roth's role as a "consulting physician, SelectNet physician" or service in a similar capacity for Pinnacol. Again we disagree.
Under 8-43-207.5, C.R.S. 2000, a prehearing conference may be held on a issue of discovery. Rule VIII(E)(6), 7 Code Colo. Reg. 1101-3 at 24 provides that for good cause shown discovery may be limited. The PALJ has wide discretion in determining whether a party has established good cause to limit discovery. See IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). We may not disturb the PALJ's order limiting discovery in the absence of an abuse of discretion.
The claimant propounded a set of interrogatories and a request for production of documents which, in pertinent part requested the respondents to "describe in detail" or produce a copy of any medical report, "list, report, correspondence or other document of any kind or nature whatsoever," which refers to Dr. Roth as a consulting physician, SelectNet physician or representative of Pinnacol. The respondents objected to these interrogatories on the grounds of relevance. In January 2000, the PALJ entered orders which refused to require the respondents to answer interrogatories and requests for production of documents to which the respondents objected. However, the PALJ ordered the respondents to "describe in a general way the nature of any and all business and/or professional relationships between Henry Roth M.D.," and Pinnacol commencing January 30, 1997.
We agree with the PALJ's implicit determinations that the disputed discovery would be overly burdensome to answer and not reasonably calculated to lead to the discovery of admissible evidence not otherwise produced by the remaining interrogatories. In any case, Dr. Roth admitted he performed numerous DIME's involving Pinnacol and was paid by Pinnacol for his service on the physician advisory panel. Under these circumstances, we fail to understand how the disputed discovery is outcome determinative. Therefore, we cannot say the ALJ abused her discretion by limiting discovery. See Bond v. Denver District Court, 682 P.2d 33 (Colo. 1984) ; Powderhorn v. Weaver, 835 P.2d 616 (Colo.App. 1992).
III.
Next, the claimant contends the ALJ erred in refusing to accept LeAnn Chance (Chance), as an expert witness in physical therapy. The claimant contends Chance had valuable information concerning the situs of the claimant's functional impairment. We perceive no reversible error.
An expert is an individual who, as a result of knowledge, skill, experience, training or education, possesses specialized knowledge which will assist the trier of fact to understand the evidence or determine a fact in issue. See C.R.E. 702; Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990). The questions of whether a witness has specialized knowledge, and whether this knowledge will aid the ALJ, are preliminary questions for the ALJ. We may not interfere with the ALJ's determination in the absence of an abuse of discretion. The standard on review of an alleged abuse of discretion is whether, under the totality of the circumstances, the ALJ's ruling exceeds the bounds of reason. Rosenberg v. Board of Education of School District #1 , 710 P.2d 1095 (Colo. 1985). Moreover, the party alleging an abuse of discretion must show sufficient prejudice before it is reversible error. C.R.E. 103(a); Williamson v. School District No. 2, 695 P.2d 1173 (Colo.App. 1984).
C.R.E. 103(a)(2) precludes a party from predicating a claim of error upon the exclusion of evidence unless the "substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked." See Melton v. Larrabee, 832 P.2d 1069, 1071 (Colo.App. 1992).
Here, Chance was allowed to testify about her observations of the claimant's condition during physical therapy. However, the claimant did not make any offer of proof concerning what additional testimony or opinions would have been offered if Chance had been qualified as an expert in physical therapy. See Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987) (statements made by counsel in a pleading may not substitute for evidence which is not in the record). Under these circumstances, the claimant has failed to demonstrate reversible error in the ALJ's refusal to qualify Chance as an expert.
IV.
Next, the claimant contends she overcame Dr. Roth's determination of MMI. In support, the claimant relies upon Dr. Ryan's opinion that the claimant did not reach MMI until December 1999 because she needed a x-ray and a bone scan to complete her medical "work-up." (Tr. p. 95).
A DIME physician's determination of MMI may only be overcome by "clear and convincing evidence." Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). "Clear and convincing evidence" is evidence which is unmistakable and is free from serious or substantial doubt. Metro Moving Storage Co. v. Gussert, supra. The question of whether the DIME physician's finding has been overcome by clear and convincing evidence is a question of fact for determination by the ALJ. Metro Moving Storage Co. v. Gussert, supra. Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8). Application of the substantial evidence test requires that we defer to the ALJ's resolution of conflicts in the evidence and her assessment of the probative value of the evidence. Metro Moving Storage Co. v. Gussert, supra; Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (ALJ free to credit one medical opinion to the exclusion of a contrary medical opinion).
The record contains conflicting medical evidence. The ALJ resolved the conflict in favor of the respondents based upon the opinions of Dr. Santaguida, Dr. McCrary, Dr. Dahlberg and Dr. Roth. Furthermore, the medical evidence the ALJ found persuasive amply supports the ALJ's finding that the claimant failed to overcome the DIME physician's determination of MMI. Consequently, the existence of some evidence which, if credited, might support a contrary determination does not afford us grounds to grant appellate relief. See Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993).
V.
In view of Dr. Roth's admission that he considered the claimant's psychological problems in rating her impairment under the cumulative trauma disorder matrix, the claimant contends the ALJ erroneously failed to award benefits based upon Dr. Roth's whole person impairment rating.
Our resolution of the claimant's argument is largely dictated by our holding in Berumen v. Arapahoe County Social Services, W.C. No. 4-114-314 (April 22, 1999). In Berumen, we ruled that a claimant might be entitled to a whole person award for bilateral cumulative trauma disorder where there was evidence the claimant's related "sleep disorder" was considered in rating the severity of the claimant's condition under Table 15 (Entrapment Neuropathy) of the AMA Guides. Because a "sleep disorder" is not a scheduled impairment found in § 8-42-107(2), C.R.S. 2000, we remanded the matter to the ALJ to determine whether the sleep disorder constituted a "functional impairment," and, if so, whether it was considered as an element of the claimant's rating under Table 15. We held that if the sleep disorder was considered as an element in determining the severity of the claimant's upper extremity rating, the ALJ should award benefits based on a single whole person impairment. On remand, the ALJ found the claimant's sleep disorder constituted a functional impairment, and that the sleep disorder was considered in determining the severity of the claimant's impairment for purposes of Table 15 of the AMA Guides. Therefore, the ALJ awarded permanent disability benefits based on a whole person impairment rating. We affirmed the award in Berumen v. Arapahoe County, W.C. No. 4-114-314 (October 27, 1999) ( Berumen II). However, in Arapahoe County v. Industrial Claim Appeals Office, (Colo.App. No. 99CA2151, July 13, 2000) (not selected for publication), the Court of Appeals remanded the matter to the ALJ for a determination of whether the "sleep disorder" was ratable. The court held that if "no rating should be assigned [to the sleep disorder], then the Panel's order shall be set aside, and the ALJ shall award benefits under the schedule." Thus, it appears the Court of Appeals has rejected our reasoning in Berumen, and decided that Morris v. Industrial Claim Appeals Office, 942 P.2d 1343 (Colo.App. 1996) controlled. Morris stands for the proposition that a scheduled extremity rating combined with a sleep disorder does not entitle the claimant to a single whole person rating unless the sleep disorder is separately measurable.
Here, Dr. Roth stated that he rated the claimant under stage 3 of cumulative trauma disorder matrix because she had 3 or more symptoms and complaints which caused significant interference with activities of daily living (Tr. p. 119). He also stated that the matrix "includes or takes into consideration a rating for evidence of significant secondary symptoms, sleep alteration, chronic fatigue or depression." (Tr. pp. 120, 122, 136). However, Dr. Roth did not assign a separate whole person rating for any physical or mental condition. In fact Dr. Roth opined the depression was not causally related to the industrial injury because the industrial injury was not of sufficient magnitude to have caused a mental disorder. (Tr. p. 120).
Furthermore, neither Dr. Santaguida, Dr. McCrary nor Dr. Dahlberg assigned a mental impairment rating. The ALJ expressly relied on the opinions of Dr. Santaguida and Dr. McCrary to find the claimant did not suffer ratable mental impairment. Therefore, regardless of whether Dr. Roth considered the psychological symptoms in rating the claimant's upper extremity impairment, the ALJ did not err in refusing to convert the rating to a single whole person impairment.
VI.
Finally, the claimant contends the ALJ's supplemental order which awards future medical benefits is unclear, incomplete and inconsistent with Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). The claimant also contends the supplemental order is void. We agree the supplemental order is void.
Section 8-43-301(4), C.R.S. 2000, provides that the ALJ may issue a supplemental order within 30 days of the date "the briefs are filed or the time for filing has run." The respondents concede, and the record reveals, the ALJ's supplemental order was issued more than thirty days after the briefs were filed. Therefore, the ALJ's supplemental order is void. As a result, our review is restricted to the June 19 order. The June 19 order expressly reserved all issues except MMI and medical impairment. Therefore, we dismiss without prejudice the claimant's petition to review concerning Grover-type medical benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated June 19, 2000, is affirmed.
IT IS FURTHER ORDERED that the claimant's petition to review concerning the issue of future medical benefits is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Corrected Order is final unless an action to modify or vacate this Corrected 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. 2000. 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 April 17, 2001 to the following parties:
Grace Robertson, P. O. Box 455, Black Hawk, CO 80422
Chicago Creek Roads, P. O. Box 3398, Idaho Springs, CO 80452-3398
Michael J. Steiner, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
Charles E. Withers, Esq., P. O. Box 4417, Boulder, CO 80306-4417 (For Claimant)
Lisa Varriale, Esq., 600 17th St., #1600N, Denver, CO 80202
BY: A. Hurtado