Opinion
W.C. No. 4-192-453
April 16, 2001
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Corchado (ALJ) which required the respondent to pay permanent partial disability benefits based upon 13 percent whole person impairment. We affirm the ALJ's order. The claimant has filed a motion for costs and attorney fees. We deny the claimant's motion.
The claimant suffered an admitted industrial injury to his low back in 1993. Dr. Aylor placed the claimant at maximum medical improvement (MMI) on May 19, 1994, with no permanent impairment. On July 19, 1994, the respondent filed a final admission of liability.
The claimant subsequently sought treatment from Dr. Kreutter, who referred him to Dr. Burke. On December 2, 1998, Dr. Burke performed a micro-discectomy for a left L4-L5 disk protrusion. In an order dated June 15, 1999, ALJ Hopf found that the disk protrusion was causally related to the industrial injury. Therefore, ALJ Hopf found the claimant proved a compensable worsening of his condition from the 1993 injury. ALJ Hopf also determined the claimant was no longer at MMI as of December 2, 1998. Consequently, ALJ Hopf reopened the claim. However, ALJ Hopf found that Dr. Burke is not an authorized treating physician. Therefore, ALJ Hopf determined the respondent was not liable for Dr. Burke's treatment. No appeal was taken from that order.
Thereafter, Dr. Dunkle became an authorized treating physician. On August 16, 1999, Dr. Dunkle assigned a 13 percent whole person medical impairment rating. Relying on Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998), the ALJ found Dr. Dunkle necessarily determined that the claimant's permanent medical impairment was causally related to his work injury. Further, the ALJ found that to challenge Dr. Dunkle's findings, the respondent was required to request a Division-sponsored independent medical examination (DIME). The respondent did not request a DIME. Therefore, the ALJ concluded, he lacked jurisdiction to adjudicate the respondent's challenge to Dr. Dunkle's finding of causation, and ordered that the respondent pay permanent partial medical impairment benefits based on Dr. Dunkle's impairment rating.
I.
On review, the respondent contends that the claimant's permanent impairment was caused by the unauthorized surgery in 1998. Relying on Baeza v. Remington Arms, 224 P.2d 223 (Colo. 1950), the respondent argues that because it was denied an opportunity to select the treating physician for the claimant's worsened condition it is not liable for the resulting impairment. We disagree.
The respondent's argument confuses liability for unauthorized medical treatment with its liability for permanent medical impairment. ALJ Hopf previously determined the respondent is not liable for the surgery by Dr. Burke. However, the ALJ implicitly determined that the surgery was reasonable and necessary to treat the industrial injury. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (Panel may consider findings which are necessarily implied by the ALJ's order). This is true because ALJ Hopf found the disk herniation was causally related to the industrial injury and that the claimant was no longer at MMI for the industrial injury on December 2, 1998, the date of the surgery by Dr. Burke. In contrast, had ALJ Hopf found the surgery to be an intervening event which severed the causal connection between the original injury and the claimant's worsened condition, the ALJ would not have reopened the claim as of the date of the surgery. See Post Printing and Publishing Co. v. Erickson, 94 Colo. 382, 30 P.2d 327 (1934).
In Egan v. Industrial Claim Appeals Office, supra, the court held that the authorized treating physician's opinion on the cause of the claimant's condition is necessarily inherent in the physician's medical impairment rating. See also Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998). In so doing, the court noted that § 8-42-107(8)(c), C.R.S. 2000 specifies that the treating physician makes the initial determination of impairment and either party may request a DIME to dispute the treating physician's opinion. In the absence of a DIME the treating physician's opinion is binding. Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995).
Here, the respondent's argument is based on the premise that the claimant's impairment is attributable to surgery which was unreasonable and unnecessary to treat the industrial injury. However, the ALJ reasonably inferred that Dr. Dunkle was of the opposite opinion. Admittedly, Dr. Dunkle testified that he had not examined medical records concerning the claimant's condition prior to the surgery, and stated that without pre-existing measurements, the claimant's loss of range of motion "defaults to being attributed to the surgery [performed by Dr. Burke.]" (Dunkle depo., p. 7). Nevertheless, Dr. Dunkle assigned a medical impairment rating. It follows that Dr. Dunkle necessarily found that the impairment was due to the effects of the industrial injury regardless of whether the measurable impairment was due to the surgery.
Accordingly, insofar as the respondent disputed Dr. Dunkle's finding of a causal relation between the claimant's permanent medical impairment and the industrial injury, the respondent was required to request a DIME. Because the respondent did not request a DIME, the ALJ correctly determined that he did have not have jurisdiction to disturb Dr. Dunkle's rating. See Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995). This reasoning is consistent with § 8-42-107(8)(c), and the court's decision in Egan.
Moreover, we do not agree with the respondent that Baeza v. Remington Arms Co., 124 Colo. 510, 224 P.2d 223 (Colo. 1950), requires a different result. The facts in Baeza involved a claimant who underwent a disabling operation which left him with permanent disability. Unlike the circumstances here, the Baeza court concluded the evidence was legally insufficient to support a finding that the surgery was reasonably necessitated by the industrial injury as opposed to an intervening injury or a genetic defect. Because the court found the claimant failed to establish prima facie evidence to support an award of permanent disability benefits, the court's statement that the claimant's failure to give the insurer advance notice of the need for surgery relieved the insurer of liability for the resulting disability is essentially dicta. Moreover, the ALJ correctly pointed out that Baeza was decided prior to the enactment of the DIME provisions in § 8-42-107(8)(c), which render the treating physician's determination on the cause of impairment binding in the absence of a DIME.
II.
The claimant has filed a motion for costs and attorney fees under § 8-43-301(14), C.R.S. 2000 on grounds the respondent's appeal was "not well grounded in fact, nor is it warranted by existing law or a good faith argument." We deny the request for costs and attorney fees.
Section 8-43-301(14) states that attorney fees may be awarded against an attorney who submits a petition to review or brief in support of a petition "which is not well grounded in fact and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law." Although we do not agree with the respondents' arguments, we do not consider the petition to review and appellate brief to be so lacking in merit that they it may be classified as not well grounded in fact or law. Therefore, we decline to award attorney fees. See BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997); Brandon v. Sterling Colorado Beef Co., 827 P.2d 559 (Colo.App. 1991) (resort to judicial review is not considered frivolous or in bad faith as long as there is a reasonable basis for party to challenge the ALJ's order).
IT IS THEREFORE ORDERED that the ALJ's order dated April 19, 2000, is affirmed.
IT IS FURTHER ORDERED that the claimant's request for costs and attorney fees is denied.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
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. 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 16, 2001 to the following parties:
Victor A. Wells, 10127 Forest Ct., Thornton, CO 80229
Public Service Company of Colorado, % Michelle Scholes, Xcel Energy, 550 15th St., #500, Denver, CO 80202
Joni Wheeler, Public Service Company, P.O. Box 840, Suite 700, Denver, CO 80201-0840
Harlan P. Pelz, Esq., 1873 S. Bellaire St., #1401, Denver, CO 80222-4347 (For Claimant)
Michael A. Perales, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondent)
BY: L. Epperson