Opinion
W.C. No. 4-358-716
March 12, 2004
FINAL ORDER
The respondents seek review of a Supplemental Procedural Order issued by Administrative Law Judge Friend (ALJ Friend) which struck a final admission of liability (FAL) because no follow-up Division-sponsored independent medical examination (DIME) had occurred. The respondents also contest the subsequent order of Administrative Law Judge Stuber (ALJ Stuber) which awarded permanent partial disability benefits based on a 17 percent whole person rating by the DIME physician. We reverse the Supplemental Procedural Order and modify the award of permanent disability benefits.
The claimant sustained a compensable injury to her right shoulder on August 29, 1997. The first authorized treating physician (ATP) placed the claimant at maximum medical improvement (MMI) on December 23, 1997. The claimant requested a DIME on September 29, 2000. The DIME physician determined the claimant had not reached MMI and the claimant was referred for further treatment.
On December 20, 2001, the second ATP placed the claimant at MMI with an impairment rating of 9 percent of the upper extremity. The second ATP converted the 9 percent rating to a 5 percent whole person rating. On February 26, 2002, the respondents filed an FAL admitting liability for benefits based on the 9 percent upper extremity rating.
The claimant did not file an express written objection to the FAL or another written request for a DIME to contest the FAL. However, on March 4, 2002, the claimant filed an application for hearing listing the issues as permanent partial disability benefits and ongoing medical benefits. A hearing was conducted before ALJ Friend on June 19, 2002, and the claimant requested to withdraw the application for hearing and return to the original DIME physician to challenge the rating of the second ATP. The respondents argued the issue was closed by the claimant's failure to request a DIME within thirty days of the FAL.
Ultimately, ALJ Friend resolved the dispute in the Supplemental Procedural Order dated September 19, 2002. Relying on Rule of Procedure XIV (L)(7), 7 Code Colo. Reg. 1102-3 at 60, ALJ Friend ruled that the February 26 FAL should be "stricken" because the claimant had not undergone a "follow-up" DIME. Consistent with this determination, ALJ Friend also ruled that the issue of permanent disability was not ripe because the follow-up DIME had not yet occurred. The respondents appealed that order, but we dismissed the petition to review without prejudice because the order was not final and reviewable.
Subsequently, the claimant underwent a DIME conducted by the original DIME physician. The DIME physician assessed a 29 percent upper extremity impairment, which converted to a 17 percent whole person impairment. The respondents then sought a hearing to overcome the DIME physician's impairment rating.
Following a hearing held on August 5, 2003, ALJ Stuber entered an order dated August 27, 2003. ALJ Stuber ruled that ALJ Friend's Supplemental Procedural Order established the law of the case as to whether the claimant was entitled to a DIME. ALJ Stuber then found the claimant proved that she sustained an injury not found on the schedule of disabilities, and that the respondents failed to overcome the DIME physician's 17 percent whole person rating by clear and convincing evidence. Consequently, ALJ Stuber awarded permanent partial disability benefits based on a 17 percent whole person impairment.
I.
On review, the respondents contend that contrary to ALJ Friend's ruling, the February 26 FAL was properly filed and the issue of medical impairment was closed because the claimant did not timely request a DIME to contest the ATP's rating. Citing § 8-42-107.2(2)(b), C.R.S. 2003, the respondents argue the claimant was required to file a "notice and proposal" to select a DIME within thirty days of the FAL, and because she did not, the second ATP's findings became binding on the parties. We agree.
As the claimant recognizes in her brief, we have previously considered this issue in Perales v. Napier Enterprises, Inc., W.C. No. 4-516-705 (December 12, 2003). See also Feeley v. Century Communications, W.C. No. 4-393-063 (January 30, 2004). In Perales and Feeley we construed the entire statutory scheme, including the statutes cited by the respondents, and held that if the DIME physician determines the claimant has not reached MMI and the claimant is returned to an ATP for treatment, determination of MMI and the initial impairment rating are again the responsibility of the ATP. Hence, if the respondents file an FAL based on the treating physician's determinations, the claimant must again request examination by the DIME physician within the time limits established by § 8-42-107.2(2)(b) or the ATP's findings concerning MMI and permanent impairment will become binding. As we stated in Perales, it is logical to interpret the statute, consistent with the statutory language, as placing the parties in the same legal position which existed before MMI was determined and the DIME process initiated. We also held that Rule XIV (L)(7) is not inconsistent with this conclusion. Rather that rule merely requires that, to the extent possible, a "follow-up DIME" be performed by the same physician who performed the original DIME. In this manner the rule avoids repeating the selection process in cases such as this where a DIME physician has already been selected. We decline to depart from the holdings in Perales and Feeley, and the analysis in those orders is incorporated herein as if fully set forth.
We note that on February 24, 2004, the Director of the Division of Workers' Compensation (Director) issued an "Interpretive Bulletin" discussing Rule XIV (L)(7) and the Perales decision. The bulletin states that the Perales decision sets forth a procedure which "is somewhat different from what has been the Division's policy," but the "Division will incorporate the Panel's decision into its policy." The bulletin states the Director agrees with Perales to the extent that case holds the relevant statutes are ambiguous because they "do not expressly address the procedure to be followed" in the situation where a DIME physician determines the claimant is not at MMI and treatment is again restored to an ATP. However, based on the statement in § 8-43-203(2)(b)(II), C.R.S. 2003, that an FAL must inform the claimant of the options including requesting a DIME "if an independent medical examination has not already been conducted," and based on the Director's understanding of the legislative history, the bulletin states the "Division has construed this language as a directive" that there be "one case, one DIME." The bulletin further states that Rule XIV (L)(7) was adopted to make it "clear that when it was determined that the claimant was not at MMI and required additional treatment, the DIME remained open" and the "claimant could return for further examination and a determination by the DIME doctor as to MMI." Hence, the Director understands Perales to mean that a follow-up DIME "is part of the original DIME." Incorporating the Perales decision into the Division's policy, the Director states the following:
So, when this fact pattern occurs and MMI is determined for the second time, if the carrier agrees with the rating the carrier must file a new Final Admission consistent with that rating. If the carrier does not agree it would be required to contact the IME unit in writing to schedule a follow-up examination pursuant to Rule XIV (L)(7). The carrier must take one of these actions within 30 days. If the carrier issues a new Final Admission and the claimant does not dispute the benefits admitted, the IME unit should be notified so the DIME can be closed and no further action is necessary. If the claimant disagrees with the second Final Admission, he or she has 30 days to object and also contact the IME unit in writing to schedule a follow-up examination.
In our opinion the bulletin represents a reasonable interpretation of the rule and underlying statutory scheme, and is consistent with our orders in Perales and Feeley. Thus, we agree with the Director that in fact patterns like that presented here, there is an "open DIME" after the DIME determines the claimant is not at MMI and there is no need to repeat the selection process to designate a "new" DIME physician, but the parties otherwise remain in the same legal position they would be in if the DIME process had never begun. Hence, as the bulletin states, "timely requesting of a follow-up exam fulfills what would typically be the requirement to submit a Notice and Proposal for a DIME." See Banner Advertising, Inc. v. People, 868 P.2d 1077, 1083 (Colo. 1994) (informal opinion letters by administrative officials are not binding but may be considered as persuasive authority).
We note that it is implicit in Perales and Feeley that we do not read the language of § 8-43-203(2)(b)(II), which is cited in the Director's bulletin, as meaning that once a DIME has been "conducted" and the claimant is found not to have reached MMI that the parties are forever excused from complying with the jurisdictional requirements of § 8-42-107.2. Indeed, the respondents' duty to either admit liability or request "selection" of a DIME arises on receipt of the disputed finding or determination, or before any FAL is filed. Section 8-42-107.2(2)(a)(I)(B), C.R.S. 2003. Rather, we read this language as relieving the parties and the Division of selecting a new physician to perform the DIME. Thus, if the respondents file an FAL based on the ATP's second MMI determination and rating, the claimant remains obligated to "dispute" the determination of the ATP by "requesting the selection of an IME" on a "form prescribed by the division by rule." Of course, if a DIME has been previously selected the form may be somewhat different than the initial "Notice and Proposal." We believe this interpretation is consistent with the Director's bulletin.
Applying these principles here, it is apparent the respondents acted properly in filing the February 26 FAL after receiving the second ATP's MMI determination and impairment rating. If the claimant wished to seek further DIME review to challenge the ATP's whole person rating she was required to file a written request with the Division to return to the original DIME, and was required to do so within the time limits established by § 8-42-107.2(2)(b). Since the claimant did not file such a request, the whole person impairment rating of the second ATP became binding on the parties and the claimant was not entitled to return to the DIME.
II.
It follows from this discussion that ALJ Stuber erred in awarding permanent disability benefits based on the DIME physician's 17 percent whole person rating. If the claimant is entitled to a whole person rating, it must be the 5 percent rating issued by the second ATP.
However, the respondents appear to argue that the claimant is restricted to the 9 percent upper extremity rating admitted in the February 26 FAL because the claim was closed by the claimant's failure to "object" to the FAL and because the evidence does not support ALJ Stuber's finding that the claimant sustained an injury not found on the schedule of disabilities.
We disagree with the respondents that the claimant did not file a timely written "objection" to the FAL. The version of § 8-43-203(2)(b)(II) which applies to the claimant's 1997 injury states the claimant must be notified that unless the claimant contests the "final admission in writing within sixty days of the date of the final admission the case will be automatically closed as to the issues admitted in the final admission." See 1998 Colo. Sess. Laws, ch. 313 at 1431-1432 [amending predecessor statute to require written objection to FAL within thirty days, requiring request for hearing on disputed issues ripe for hearing within thirty days, and providing that statutory changes apply to injuries occurring on or after June 4, 1998].
On March 4, 2002, the claimant filed a request for hearing on the issue of permanent partial disability benefits. We have previously held that a written application for hearing is sufficient to constitute a written objection to an FAL because it notifies the respondents that the claimant does not accept the FAL and is not amenable to resolution by administrative closure. See Mitchell v. Office Liquidators, Inc., W.C. No. 4-409-905 (September 29, 2000). Thus, the claimant filed a timely written objection to the FAL insofar as it admitted for the ATP's scheduled rating rather than the whole person rating. The fact the claimant later sought to withdraw the application to seek a DIME does not vitiate its effectiveness in notifying the respondents of the claimant's objection to the FAL. In fact, at the hearing before ALJ Friend the claimant's counsel specifically stated that the claimant disagreed "that this is an extremity case." Further, the fact that we determined the claimant did not timely request a DIME for purposes of § 8-42-107.2 did not deprive ALJ Stuber of jurisdiction to determine whether the claimant sustained a scheduled or whole person impairment. See Delaney v. Industrial Claim Appeals Office, 30 P.3d 691 (Colo.App. 2000).
ALJ Stuber determined as a matter of fact that the claimant sustained impairment not found on the schedule of disabilities. Although the respondents argue this finding is not supported by the record, we disagree.
Determination of whether the claimant sustained an injury not found on the schedule is a question of fact to be resolved by the ALJ. In resolving the issue the ALJ must determine the situs of the claimant's functional impairment, and the site of the functional impairment is not necessarily the site of the injury itself. 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). Further, the AMA Guides' definition of where the arm ends and torso begins is not dispositive of whether the claimant sustained a scheduled loss of the arm at the shoulder. Strauch v. PSL Swedish Healthcare System, Inc., supra. Finally, pain and discomfort which limits a claimant's ability to use a portion of the body may be considered "functional impairment" for purposes of the deciding whether an injury is on or off the schedule. Salaz v. Phase II Co., W.C. No. 4-240-376 (November 19, 1997), aff'd., Phase II Co. v. Industrial Claim Appeals Office, Colo. App. No. 97CA2099, September 3, 1998 (not selected for publication).
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. 2003. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
Here, ALJ Stuber credited the claimant's testimony, corroborated by medical reports, that she experiences pain in her shoulder and upper back which limits her ability to raise her right arm overhead. (Finding of Fact 14). This evidence fully supports ALJ Stuber's determination that the claimant sustained functional impairment beyond the arm at the shoulder, and the mere possibility of other findings affords no basis for appellate relief.
The respondents suggest there was an aggravation in other employment which is the cause of the impairment. However, the second ATP did not attribute any of the 5 percent whole person rating to an intervening injury, and the respondents did not seek a DIME to challenge the ATP's assessment of the cause of the impairment. See Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998) (causation is an inherent part of the rating process). Under these circumstances, the second ATP's 5 percent whole person rating is binding on the parties.
IT IS THEREFORE ORDERED that ALJ Friend's Supplemental Procedural Order dated September 19, 2002, is reversed insofar as it struck the respondents' February 26 FAL.
IT IS FURTHER ORDERED that ALJ Stuber's order dated August 27, 2003, is modified to provide the respondents shall pay permanent partial disability benefits based on a 5 percent whole person impairment.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill WhitacreNOTICE
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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2003. 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 order were mailed to the parties at the addresses shown below on March 12, 2004 by A. Hurtado.
Nancy Sanchez-Ortega, 4522 E. Galley Rd., Colorado Springs, CO 80917
C. L. Pitchford, Central Uniform Linen, P. O. Box 2289, Colorado Springs, CO 80909
Justin Johnson, Liberty Mutual Insurance Company, 10770 E. Briarwood Ave., #200, Englewood, CO 80112
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)