Opinion
W.C. No. 4-138-717
October 21, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ Stuber) which required the respondents to pay permanent partial disability benefits based on scheduled impairments of both upper extremities. The claimant contends ALJ Stuber improperly "sanctioned" a limitation on the scope of a Division-sponsored independent medical examination (DIME), improperly credited the scheduled ratings of the treating physician, and erred in failing to award whole person impairment benefits for the claimant's shoulder injuries. We affirm.
This case has a complex factual and procedural history which is relevant to the issues in the case. Consequently, we will summarize the history.
In 1992 the claimant sustained injuries to both upper extremities and his head when he fell off of a roof in the course of his employment. In July 1992 the claimant underwent a neuropsychological evaluation, and was found not to have any sequelae secondary to the fall.
In December 1993 the claimant was involved in an automobile accident in which he sustained a closed head injury. Because the claimant caused the accident while driving under the influence of alcohol, he was convicted of vehicular homicide and sentenced to prison. The claimant served a sentence from September 6, 1994 through October 16, 1997.
In April 1996, while the claimant was still in prison, the treating physician placed the claimant at maximum medical improvement (MMI). Soon thereafter the treating physician assigned impairment ratings of 29 percent of the left upper extremity and 18 percent of the right upper extremity. The respondents filed a final admission of liability, which did not admit impairment of the left upper extremity, and the claimant objected.
In March 2000, the claimant went to a hearing on a claim for additional temporary disability benefits allegedly related to the 1992 head injury. However, on March 28, 2000, ALJ Mattoon entered an order denying the claim. ALJ Mattoon found the claimant reached MMI on April 3, 1996, and failed to prove that his "current symptoms are causally related to the industrial injury."
The claimant did not appeal ALJ Mattoon's order, but instead sought a DIME on the issues of MMI and permanent impairment. The claimant requested that the DIME physician's evaluation include consideration of the closed head injury. The respondents moved to strike the DIME request on grounds that ALJ Mattoon's order was res judicata or collateral estoppel on the issue of whether the alleged closed head injury was related to the 1992 industrial injury. Prehearing ALJ Keck (PALJ Keck) denied the request to strike the DIME, but she ordered that the DIME physician be prohibited "from examining the claimant for, or offering an opinion on, any complaint attributable to a closed head injury." This ruling was reviewed and approved by ALJ Wheelock. Thereafter, PALJ Fitzgerald ordered the "Division IME Unit" to "advise" the DIME physician of the limitation established by PALJ Keck's order.
On August 8, 2001, a DIME was performed. The DIME physician assessed 54 percent impairment of each upper extremity encompassing reduced range of motion in the shoulder, elbow, wrist, and hand of each extremity, plus an ulnar nerve impairment of the left upper extremity. The ALJ also found that, despite PALJ Keck's order, the DIME physician determined the claimant's closed head injury was "treated with resolution" and "determined a 0% rating" for the closed head injury.
On May 12, 2002, ALJ Stuber entered the order under review. Insofar as pertinent, the order denied the claim for whole person medical impairment benefits. ALJ Stuber found that even if PALJ Keck's order improperly limited the scope of the DIME, the DIME physician evaluated the claimant's head injury and found no permanent impairment. Further, ALJ Stuber found that the evidence supports the finding the claimant has no impairment attributable to a closed head injury.
ALJ Stuber also found the claimant failed to prove he has functional impairment "proximal to the arm at the shoulder." Instead, ALJ Stuber credited the extremity ratings of the treating physician. He found the treating physician's ratings were issued in accordance with the rating protocols of the AMA Guides and best reflect the claimant's impairment "near the date of MMI." The ALJ observed that the treating physician's ratings do not implicate the "increasing problems created by claimant's return to work duties after his release from prison."
I.
On review the claimant contends ALJ Stuber erred in "sanctioning" PALJ Keck's order to the DIME physician not to consider and rate the closed head injury. The claimant argues that ALJ Mattoon's finding concerning the cause of the claimant's head injury did not estop the DIME physician from considering the closed head injury, nor did it preclude relitigation of the causation issue before ALJ Stuber. Further, the claimant argues ALJ Stuber's reliance on the DIME physician's "zero percent rating" for the closed head injury was erroneous. The claimant asserts the DIME physician's failure to rate the head injury "is nothing more than dicta" because the DIME physician was afraid she would be subjected to penalties if she contravened PALJ Keck's order and rated the head injury. Consequently, the claimant requests that we order a new DIME to evaluate and rate the closed head injury.
We assume, without deciding, that PALJ Keck's order erroneously limited the scope of the DIME examination. However, we conclude ALJ Stuber did not err in relying on the DIME physician's zero percent rating for the head injury.
The impairment rating of the DIME physician is binding on the parties unless overcome by clear and convincing evidence. Section 8-42-107(8)(c), C.R.S. 2002. The burden to overcome the rating is on the party challenging it. Lambert Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656 (Colo.App. 1998). The question of whether the DIME physician's rating has been overcome is one of fact for determination by the ALJ. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
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. 2002. This standard of review requires us to view the evidence in a light most favorable to the prevailing party, and defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving Storage Co. v. Gussert, supra.
Here, the claimant argues the DIME physician's zero rating for the head injury is legally insufficient because it was unduly influenced by the fear of penalties for violating PALJ Keck's order. However, we view this argument as pertaining to the weight to be accorded the DIME physician's rating, not its sufficiency as a matter of law. Moreover, the claimant made no attempt to depose the DIME physician and establish her actual motives, but instead relies on an inference. Under these circumstances, we conclude the issue was an evidentiary matter for the ALJ, and we perceive no error in the ALJ's conclusion that the DIME rating was not overcome.
Further, we do not think the claimant's argument required ALJ Stuber to conclude the DIME physician's zero rating for the head injury was incredible as a matter of law. The ALJ could reasonably have inferred that if the DIME physician was afraid of penalties for violating PALJ Keck's order the DIME physician's report would not have addressed the head injury at all. Instead, the DIME physician expressly evaluated the head injury and issued an opinion. Finally, we note a DIME physician's fear of penalties may be somewhat diminished because the Act provides that a physician issuing an impairment rating enjoys qualified immunity in actions based on the impairment rating. Section 8-43-502(7), C.R.S. 2002.
II.
The claimant next contends the ALJ erred in crediting the upper extremity ratings of the treating physician over those of the DIME physician. The claimant first argues that the ALJ erred in crediting the treating physician's rating based on the finding that it was issued closer to the date of MMI than the DIME physician's rating. The claimant reasons "that there is absolutely no requirement to be found in the statute which suggests the physical impairment rating is to be determined on the date of MMI." We find no error.
Strictly speaking, the claimant is correct in stating that the statute does not require the impairment rating be determined on the date of MMI. Indeed, this is often impossible. See McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo.App. 1999) (claimant not precluded from receiving permanent disability benefits for specific disorder of spine based on 6 months of pain and rigidity merely because he reached MMI within 6 months of the injury).
However, it does not follow the ALJ erroneously considered the lapse of time between the date of MMI and the ratings of the treating physician and the DIME physician. First, because the DIME procedures do not apply to scheduled ratings, the preponderance of the evidence standard applied to the ALJ's determination of which rating best measured the claimant's scheduled impairments. Section 8-43-201, C.R.S. 2002; see Delaney v. Industrial Claim Appeals Office, 30 P.3d 691 (Colo.App. 2000).
Second, MMI is defined as the point in time "when any medically determinable physical or mental impairment as a result of injury has become stable" and no further treatment is expected to improve the condition. Section 8-40-201(11.5), C.R.S. 2002. The attainment of MMI triggers the right to permanent disability benefits, and permanent disability is payable from the date of MMI. See Nunnally v. Wal-Mart Stores, Inc., 943 P.2d 26 (Colo.App. 1996).
Here, the ALJ concluded that the scheduled impairment ratings of the DIME physician were less persuasive than those of the treating physician because they may reflect reduced range of motion caused by the claimant's work activities long after the date of MMI. Hence, the DIME physician's ratings potentially include ratable impairment which did not exist when the claimant's condition became stable, and was not the result of the industrial injury. The ALJ properly considered this evidence when deciding which physician's ratings were more credible.
The claimant next argues the ALJ erred in discrediting the DIME physician's extremity ratings because they were based on addition rather than combination of individual components of the overall upper extremity ratings. The claimant cites § 8-42-107(7)(a), C.R.S. 2002, and Waite v. Deluxe Current, Inc., W.C. No. 4-150-563 (January 21, 1998), as authority for this proposition. We disagree.
Impairment ratings are to be determined in accordance with the AMA Guides. Section 8-42-101(3.7), C.R.S. 2002. Section 8-42-107(7)(a) provides that if the claimant sustains "two or more injuries coming under this schedule, the disabilities specified in subsections (1) to (5) shall be added and the injured employee shall receive the sum total thereof."
Here, the ALJ credited the respondents' expert medical evidence that under the AMA Guides regional impairments affecting a single extremity are to be combined (pursuant to the combined values chart) into a single upper extremity impairment rating. Thus, for purposes of § 8-42-107(7)(a), the claimant sustained only two "injuries," one affecting each upper extremity. Conversely, the DIME physician's extremity ratings were incorrect because she calculated the upper extremity ratings by adding various regional components affecting the upper extremities.
Waite v. Deluxe Current, Inc., supra, is not authority to the contrary. In Waite we held that § 8-42-107(7)(a) requires that when a claimant sustains a loss of both arms at the shoulder, the impairment ratings for the two extremities must be added rather than combined for purposes of paying benefits under the schedule. That is precisely the result of ALJ Stuber's order requiring the respondents to pay benefits based on an 18 percent loss of the right arm at the shoulder and a 29 percent loss of the left arm at the shoulder. Waite did not address the method for calculating the overall impairment of a single member found on the schedule.
III.
The claimant next contends the ALJ erred in refusing to award whole person medical impairment benefits based on the claimant's shoulder injuries. The claimant does not dispute the sufficiency of the evidence to support the ALJ's finding that the claimant did not sustain functional impairment proximal to the arm at the shoulder. Instead, the claimant asserts that because the injury was to the shoulder joint, and the shoulder joint is not on the schedule, whole person benefits are mandated. The claimant also argues that our prior interpretations of the statute result in a denial of equal protection because the only distinction in the cases which we have decided is the ALJ which ruled on the issue.
The claimant's argument concerning the proper method for determining whether a shoulder injury is or is not on the schedule has been repeatedly rejected by the Court of Appeals. Walker v. Jim Fuoco Motor Co., 942 P.2d 1390 (Colo.App. 1997); Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996); Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996). We are bound by these decisions. C.A.R. 35(f). It follows the ALJ's order was not erroneous as a matter of law.
Insofar as the claimant argues the court's interpretation of the statute, and hence our interpretation, denies equal protection of the laws, we are without jurisdiction to consider the issue. Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539 (Colo.App. 1995).
IT IS THEREFORE ORDERED that ALJ Stuber's order dated May 12, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed October 21, 2002 to the following parties:
Tracy T. Roy, 14370 Windy Pine, Elbert, CO 80106
Hibbitts Construction, Inc., 2715 Steel Dr., Colorado Springs, CO 80907
Curt Kriksciun, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Douglas A. Thomas, Esq., 600 17th St., #1600N, Denver, CO 80202
By: _____A. Hurtado____