Opinion
W.C. No. 4-545-531.
November 18, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated July 27, 2009, that found the claimant sustained a compensable injury in the form of a contusion and mild closed head injury, but found the claimant's right shoulder injury and all other claimed injuries were not compensable. The ALJ denied the claims for ongoing medical benefits and for permanent total disability (PTD) benefits. We affirm.
The ALJ found that the claimant's complaints resulting from the June 25, 2002 accident resolved by May 2003. The ALJ was persuaded by the testimony and reports of Dr. Moe, Dr. Bernton, Dr. Quintero, and Mr. Macurak. The ALJ specifically rejected any contrary opinions or reports from Dr. Woodcock, Dr. Grenhart, and Dr. Zierk. The ALJ concluded that the claimant had no restrictions that would prevent him from working and dismissed his claim for PTD benefits. The ALJ denied the claim for ongoing medical benefits.
As we understand the claimant's argument he contends that the ALJ erred in determining that the injuries sustained by him in the June 25, 2002 compensable injury were restricted to a contusion and mild closed head injury with no entitlement to PTD or medical benefits. He contends that for three reasons the ALJ was without subject matter jurisdiction to make such a determination. The claimant asserts that an order issued on October 12, 2004 by ALJ Henk setting aside a full and final settlement because the claimant was incompetent deprived ALJ Friend of subject matter jurisdiction to make the determinations he did regarding the extent of the injuries that the claimant suffered in the June 25, 2002 accident. The claimant next contends that the compensability of the claimant's injuries had been previously been determined by the unchallenged opinion of a Division-sponsored independent medical examination (DIME) physician. The claimant finally contends that a Final Admission of Liability (FAL) dated June 11, 2006, which admitted for thirty percent brain impairment, eight percent mental impairment and a ten percent impairment of his right shoulder based upon opinions from the claimants' authorized treating physicians (ATPs) again deprived ALJ Friend of subject matter jurisdiction. Therefore, the claimant contends that ALJ erred in deciding that the compensable injuries he sustained were restricted to a contusion and a mild closed head injury.
We understand the relief requested by the claimant to be an order finding that that the ALJ was without subject matter jurisdiction and his order therefore is a nullity. The claimant then asks the matter be remanded so that his entitlement to continuing medical benefits and an award of PTD benefits might be reviewed in light of his mental incompetency, disrupted brain function and shoulder problems. The claimant raises his arguments in the context of subject matter jurisdiction. A tribunal may not proceed without the "power to resolve a dispute in which it renders judgment." Leewaye v. Industrial Claim Appeals Office, 178 P.3d 1254, 1257 (Colo. App. 2007). The question of subject matter jurisdiction may therefore be raised at any point in the proceedings. Skyland Metro. Dist. v. Mountain West Enter. LLC, 184 P.3d 106, 115 (Colo. App. 2007). The claimant's arguments are more typically framed as the kind of issues that may be subject to waiver. However, it appears that the claimant may have raised the underlying basis for his jurisdictional contentions before the ALJ. In any event, we are not convinced that the ALJ was without subject matter jurisdiction nor are we persuaded that a remand is necessary.
I.
A full and final settlement was signed in May 2003 between the parties. However, ALJ Henk on October 12, 2004 ordered the claim to be reopened finding the claimant had been mentally incompetent at the time he entered into the settlement. Exhibit 18. The claimant notes that no party appealed the order of ALJ Henk. Therefore, as we understand the argument, the claimant contends that ALJ Friend was without subject matter jurisdiction to determine the claimant's impairment was other than what was indicated by ALJ Henk.
The issue before ALJ Henk was whether to reopen the May 14, 2003 settlement agreement on the ground that the claimant was not competent at the time he settled his claim because of significant cognitive problems. ALJ Henk determined that at the time the claimant signed the settlement agreement he was not competent to understand the workers' compensation rights he was giving up; therefore, there was a mutual mistake of a material fact.
The claimant argues that the issue of PTD benefits must be reassessed because the claimant was found by ALJ Henk to be mentally incompetent. The claimant contends he cannot be employable because he was found to be incompetent to enter into a contract. The claimant offers no authority for this proposition. However, the claimant argues it is logically contradictory to find a person to be employable who has been found to be incompetent to enter into a contract.
We first note in addressing the claimant's argument that ALJ Friend did not have subject matter jurisdiction over the issue of the claimant's entitlement to medical benefits and PTD benefits that § 8-43-201 C.R.S. 2009 provides that administrative law judges have original jurisdiction to hear and decide all matters arising under Workers' Compensation Act of Colorado. Subject matter jurisdiction involves a court's power to resolve a dispute in which it renders judgment. A court has subject matter jurisdiction if "the case is one of the type of cases that the court has been empowered to entertain by the sovereign from which the court derives its authority." Horton v. Suthers, 43 P.3d 611, 615 (Colo. 2002) (quoting Paine, Webber, Jackson Curtis, Inc. v. Adams, 718 P.2d 508, 513 (Colo. 1986)). These concepts apply to the authority of an administrative agency as well. See generally Leewaye v. Industrial Claim Appeals Office, supra. Here, in our view, there is no question that the ALJ had subject matter jurisdiction to consider claimant's entitlement to medical and PTD benefits. Thus, the subject matter jurisdiction of the ALJ is not implicated.
Although couched in terms of subject matter jurisdiction it appears the claimant contends that the issue of the claimant's employability and thus his entitlement to PTD benefits was resolved by ALJ Henk's order. Issue preclusion does apply to workers' compensation claims. Feeley v. Industrial Claim Appeals Office 195 P.3d 1154 (Colo. App. 2008). However, four elements must be present for issue preclusion to bar relitigation of an issue. In Sunny Acres Villa, Inc. v. Cooper, 25 P.3d 44, 47 (Colo. 2001). Two of these elements are that the issue sought to be precluded is identical to an issue actually determined in the prior proceeding and the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding.
In our view the issue of the claimant's competence to enter into a 2003 settlement agreement is not identical to the issue of whether the claimant has established that he is unable to earn any wages in the same or other employment. Section 8-40-201(16.5)(a), C.R.S. 2009. Further, ALJ Henk order does not demonstrate that the issues of entitlement to PTD benefits or medical benefits were even raised, much less that the respondents had a full and fair opportunity to litigate the issue. In our opinion, at least two issue preclusion elements are not present here. Therefore, ALJ Henk's order reopening the May 14, 2003 settlement agreement did not deprive ALJ Friend from jurisdiction over the issues of claimant's entitlement to PTD or medical benefits.
II.
The claimant next refers to the DIME conducted by Dr. Machanic on February 10, 2003. The claimant contends that Dr. Machanic's findings related to his determination that the claimant was not at MMI became binding on the parties when the parties failed to contest those findings.
As we understand the claimant's argument, he relies on the well-established principal that a DIME physician's opinion concerning MMI is binding unless overcome by clear and convincing evidence. Section 8-42-107 (8)(b)(III), C.R.S. 2009. The claimant appears to also rely on the equally well-established principal that the determination of MMI inherently requires the DIME physician to assess whether or not the claimant's medical conditions are causally related to the industrial injury. Therefore, the DIME physician's opinion that a causal relationship between the claimant's condition and the injury does or does not exist must be overcome by clear and convincing evidence. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186, 190 (Colo. App. 2002).
It may be that no action was taken by the parties directly regarding the DIME physician's report because the parties settled the case following their receipt of the report. In any event to the extent that the claimant argues the ALJ erred in finding the claimant's right shoulder injury is not compensable because he was bound by the findings of Dr. Machanic as the DIME physician, we are not persuaded that the ALJ erred. Dr. Machanic specifically stated in his February 10, 2003 report that when he asked the claimant about his neck, back and shoulder the claimant denied having problems with any of these areas. Exhibit 19 at 3. Therefore, even assuming that the claimant is correct and the ALJ was bound by Dr. Machanic's determinations involving causation, the claimant's right shoulder injury was not compensable.
To the extent the claimant argues that the ALJ is bound by Dr. Machanic's opinion that the claimant is not at MMI we are not persuaded that this supports granting the relief requested by the claimant. We acknowledge that in his report of February 10, 2003 Dr. Machanic stated that the claimant's cognitive dysfunction could very well be consistent with the trauma of June 25, 2002 and it had not been clarified whether he had an exacerbation of his condition related to his significant head injury in 1990. Exhibit 19 at 5. Dr. Machanic stated that the claimant needed further evaluation and therefore could not be considered to have reached MMI. The report from Dr. Machanic is ambiguous as to opinions of causal connection between the industrial injury and claimed injuries. We note that the ALJ does not appear to have relied upon the opinions of Dr. Machanic. The only definitive opinion in his report was that the claimant was not at MMI. However, the issue of MMI was not in issue at the hearing.
A DIME physician's opinion has no presumptive weight on the issue of Grover medical benefits or change of physician. See Cordova v. Industrial Claim Appeals Office, supra; see also, Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo. App. 1995) (DIME determination of MMI did not preclude change of physician order where only Grover medical benefits were sought); Wilkinson v. Wal-Mart Stores, Inc., W.C. No. 4-674-582 (October 26, 2007).
Generally, permanent disability is determined when the claimant has reached MMI. See Golden Animal Hospital v. Horton 897 P.2d 833 (Colo. 1995); Section 8-40-201(11.5) C.R.S. 2009. Therefore, to the extent that the claimant argues the ALJ was still bound by Dr. Machanic's opinion, uttered in 2003, that the claimant was not at MMI at the time of the hearing held in 2009, it is inconsistent with his position that the ALJ erred in failing to award permanent total disability. Moreover, at the hearing the claimant did not raise the issue of whether the claimant was at MMI. Tr. (5/4/2009) at 99. Consequently, because the issue of the claimant's reaching MMI was not raised before ALJ Friend, it has not been preserved for our review. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo. App. 1994); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo. App. 1987). Moreover, arguing that the claimant was not at MMI because of Dr. Machanic's 2003 opinion is inconsistent with the claimant's position that the respondents are bound by the unchallenged June 11, 2006 FAL supported by opinions of ATPs discussed in the next section of this order.
In our view the claimant's reliance on City and County of Denver v. Industrial Claim Appeals Office, 58 P.3d 1162 (Colo. App. 2002) is misplaced. In City and County of Denver the court noted that after a case is "reopened based on a change in condition," the causation issue is limited to whether there is a change in the claimant's physical or mental condition that can be causally connected to the original compensable injury. Here the claim was not reopened based upon a change in condition, but rather based on mistake. Further, we do not understand ALJ Friend's order as implicating the original finding of causation. Instead, the issue was the extent of the claimant's disability at the time of the hearing and the need for ongoing medical care related to the compensable injury.
III.
The claimant argues that after reports from Dr. Woodcock, Dr. Boudlick and Dr. Grenhart were received in 2005 and 2006 a FAL dated June 11, 2006 was filed based on these ATPs' reports, the ALJ was without subject matter jurisdiction on the issues of MMI and impairment. The claimant argues that by filing the FAL the respondents accepted the findings and determination of the ATPs regarding MMI date and impairment. From this the claimant argues that the ATPs' determination that the shoulder injury was compensable removes subject matter jurisdiction from the ALJ on the issue of causation of the claimant's impairment. Therefore, the claimant contends it is inarguable that the injury of June 25, 2002 resulted in a 30 percent whole person impairment of the brain, and eight percent whole person mental impairment and ten percent impairment of the right upper extremity. As noted above, the claimant then asks the matter be remanded to review his entitlement to continuing medical benefits and an award of PTD benefits in light of his mental incompetency, disrupted brain function and shoulder problems.
Here, the respondents filed a FAL dated July 11, 2006 based on the reports of Dr. Woodcock dated December 20, 2005, the report of Dr. Boudlik dated March 8, 2006 and Dr. Grenhart's report dated June 20, 2006. Exhibit 16. Dr. Boudlik in his report of March 8, 2006 stated that the claimant was at MMI, although he might need further intervention in the future. Exhibit 6 at 12. Dr. Boudlik opined that the claimant had a ten percent impairment of his right shoulder. The ALJ found with record support that the claimant began to treat with Dr. Grenhart for psychological issues in June 2005. The claimant discussed with Dr. Grenhart various issues including his divorce, his issues with women, his issues with his children and issues with litigation stress with his workers' compensation claim and his divorce proceedings. In his report of June 20, 2006 Dr. Grenhart stated the claimant was at MMI for his psychological condition. Exhibit 4 at 50. Dr. Woodcock, in a report dated December 20, 2005, opined that the claimant was at MMI for his cognitive condition and rated the claimant as having a psychiatric permanent impairment of eight percent and 30 percent whole person impairment for complex integrated cerebral function. Exhibit 1 at 50.
On the issue of liability for ongoing medical benefits after MMI, the respondents in the FAL admitted for future medical benefits administered by an authorized provider that are reasonable, necessary and related to the claim. However, an admission of liability for the payment of medical treatment does not amount to an admission that all subsequent medical treatment is causally related to the industrial injury, or that all subsequent treatment is reasonable and necessary. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo. App. 1997); Putman v. Putnam Associates, W. C. No. 4-120-307 (August 14, 2003). Even if the respondents are obligated by admission to pay ongoing medical benefits after MMI, they always remain free to challenge the cause of the need for continuing treatment and the reasonableness and necessity of specific treatments. Hanna v. Print Expediters Inc. 77 P.3d 863 (Colo. App. 2003); Davis v. ABC Moulding, W.C. No. 3-970-332 (September 19, 1999). Indeed, an award of post-MMI medical benefits is general in nature and does not constitute an award of specific medical benefits Hanna v. Print Expediters Inc., supra. It follows that the FAL did not deprive the ALJ of subject matter jurisdiction to determine the claimant's entitlement to future medical benefits. Hence, we are not persuaded by the claimant that ALJ Friend erred in denying such medical benefits.
On the issue of whether the ALJ was without subject matter jurisdiction to determine the causal connection of the claimant's physical and mental conditions with the industrial injury, we recognize that a treating physician may determine whether the worker has sustained a permanent medical impairment, and if so, to what degree. § 8-42-107 C.R.S 2009. We further recognize that whether a particular component of the claimant's overall medical impairment was caused by the industrial injury is an inherent part of the rating process. Egan v. Industrial Claim Appeals Office of State 971 P.2d 664 (Colo. App. 1998). However, the issue before the ALJ was not permanent partial disability benefits based upon medical impairment as rated by a physician. Rather the issue was permanent total disability benefits.
The respondents, citing Clemons v. Harrison School District #2, W. C. No. 4-357-814 (September 11, 2003), argue that the special weight afforded by § 8-42-107 does not extend to the issue of whether a claimant is permanently totally disabled. We accept this as a general statement of the law. However, here the ALJ determined that the claimant sustained only a contusion and mild closed head injury. This finding was despite the FAL, which admitted liability for ten percent impairment of the claimant's right shoulder based on Dr. Boudlik's opinion. In general an unchallenged FAL based on the opinion of a treating physician is binding on the issue of the compensable nature of conditions admitted for in the FAL.
Nevertheless, in our opinion no remand is necessary. Here, the ALJ specifically found that the claimant was able to be employed because he had obtained and worked at multiple employers after his injury and engaged in sports and other activities demonstrating physical and mental capabilities. The ALJ concluded that the claimant had the skills to obtain additional employment and that there are jobs available to the claimant.
Under the applicable law, a claimant is permanently and totally disabled if he is unable "to earn any wages in the same or other employment." Section 8-40-201(16.5)(a), C.R.S. 2009. In determining whether the claimant is unable to earn any wages, the ALJ may consider a number of "human factors." Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). These factors include the claimant's physical condition, mental ability, age, employment history, education and the "availability of work" the claimant can perform. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). A human factor is the claimant's ability to obtain and maintain employment within his physical abilities. See Professional Fire Protection, Inc. v. Long, 867 P.2d 175 (Colo. App. 1993). The ability to earn wages inherently includes consideration of whether the claimant is capable of getting hired and sustaining employment. See Christie v. Coors Transportation Co., supra; Cotton v. Econ. Lube N Tune, W.C. No. 4-220-395 (January 16, 1997), aff d, Econ. Lube N Tune v. Cotton (Colo. App. No. 97CA0193, July 17, 1997).
The question of whether the claimant has proven permanent and total disability is factual in nature. Consequently, we must uphold the ALJ's resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2009; Weld County School District RE-12 v. Bymer, supra. Application of the substantial evidence test requires us to defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Christie v. Coors Transportation Co., supra. Furthermore, the determination of the weight to be accorded expert testimony is a matter within the ALJ's province as the fact-finder. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo. App. 1990).
The ALJ made findings of fact that support his determination that the claimant is able to sustain employment and is capable of earning wages. The ALJ made the following relevant findings of fact. After the June 25, 2002 accident, the claimant got married and fathered two children, who he independently supervises. The claimant plays basketball, jogs, lifts weights, and even coaches the neighborhood kids in basketball. The claimant "took on his ex-wife in a protracted custody battle" in which he sought responsibility in caring for his older children. The claimant continued to drive an automobile. The testimony of Mr. Macurak, vocational expert for the respondent, was persuasive that there were jobs available that fall within the claimant's demonstrated skills and abilities. Exhibit N at 451.
We do not read the claimant's brief as challenging these factual findings or that this portion of the ALJ's order is not supported by substantial evidence. Moreover, as noted by the respondents a transcript of the June 8, 2009 hearing is not in the record. Where the appealing party fails to procure transcripts of the relevant hearings we must presume the pertinent findings of fact are supported by substantial evidence. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo. App. 1988). Therefore, the ALJ's factual determination that the claimant had failed to prove entitlement to PTD benefits must be upheld.
Therefore, even if the binding nature of the FAL and the opinion of the treating physician were misconstrued by the ALJ on the cause of the claimant's right shoulder condition or other mental conditions, still the claimant's substantial rights were not affected on the issue of his entailment to PTD benefits. See § 8-43-310, C.R.S. 2009 (harmless error is to be disregarded); Bodensieck v. Industrial Claim Appeals Office 183 P.3d 684 (Colo. App. 2008). Here, the ALJ determined that whatever the cause of his complaints, the claimant failed to demonstrate that he was unable to earn any wages in the same or other employment. Therefore, the claimant failed to meet the requirements necessary for entitlement to PTD benefits. Section 8-40-201(16.5)(a). Consequently, we perceive no reason to interfere with the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order dated July 27, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ______________________________ John D. Baird ______________________________ Thomas Schrant
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TRUCK INSURANCE EXCHANGE, Attn: LISA WATKINS, DENVER, CO, (Insurer).
WILLIAM J MACDONALD, ESQ., DENVER, CO, (For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: DOUGLAS A THOMAS, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).
FLEISCHMAN, STERLING, GREGORY SHAPIRO, Attn: STEVEN A SHAPIRO, ESQ., SEATTLE, WA, (Other Party).
RUTH C MALMAN, ESQ., DENVER, CO, (Other Party 2).