IN THE MATTER OF THE CLAIM OF RICHARD GAREIS, Claimant, v. POUDRE SCHOOL DISTRICT R-1, Employer, and CCMSI, Insurer, Respondents.

W.C. No. 4-714-186.Industrial Claim Appeals Office.
December 14, 2009.

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cain (ALJ) dated June 5, 2009, that allowed the respondents to withdraw prospectively their admissions of liability and denied and dismissed the claim from the date of the ALJ’s order. We affirm.

The claimant alleges that he sustained a compensable occupational disease that affects his cervical spine. The claimant worked as a school bus driver for the employer. On December 20, 2007 the respondents filed a Final Admission of Liability (FAL). The FAL was based upon Dr. Wunder’s report of December 11, 2007. Dr. Wunder noted the claimant’s history of rheumatoid arthritis (RA) and the absence of any specific mechanism for injury. Dr. Wunder opined that the claimant’s neck condition was a natural progression of his underlying RA and that he probably always had ulnar neuropathy at the elbow. Dr. Wunder opined that the claimant’s symptoms were probably not related to driving a school bus. Dr. Wunder opined that the claimant reached maximum medical improvement (MMI) on December 11, 2007, with no permanent impairment.

The claimant objected to the FAL and filed a notice and proposal to select a Division-sponsored independent medical examination (DIME). The DIME physician diagnosed myofascial pain syndrome of the cervical and upper thoracic region, active treatment for RA, status post C7 C8 surgeries, and left ulnar neuropathy. The DIME physician opined that the claimant’s conditions were work related and assigned an 18 percent whole person impairment rating.

Page 2

At the hearing, the respondents contended that they were entitled to withdraw the December 20, 2007 FAL and place the burden of proof on the claimant to establish that he sustained an injury or occupational disease arising out of and in the course of his employment. The claimant contended that by filing the FAL the respondents admitted that the claimant sustained a compensable injury, and that the DIME physician’s finding that the claimant sustained impairment caused by the injury was binding on the respondents unless overcome by clear and convincing evidence.

The ALJ determined that because the claimant contested the FAL that the respondents were permitted to withdraw their FAL admitting that the claimant sustained an injury arising out of and in the course of his employment as a bus driver. Moreover, the ALJ found that the claimant bore the initial burden of proof to establish by a preponderance of the evidence that he sustained an injury or occupational disease arising out of and in the course of his employment. Because the question of whether the claimant proved a compensable injury is a “threshold issue” to be determined by the ALJ under the preponderance of the evidence standard, the ALJ determined that the opinion of the DIME physician was not entitled to any presumptive weight.

The ALJ found that the claimant had failed to prove it was more probably true than not that the alleged hazards of his employment as a bus driver caused the claimant’s neck and upper extremity symptoms, or that the hazards of employment aggravated or accelerated any pre-existing condition. The ALJ found that the persuasive evidence established that it was more likely than not that the claimant’s neck and upper extremity symptoms resulted from pre-existing RA and the related condition of ulnar neuropathy of the left extremity. The ALJ concluded that the claimant failed to prove it more probably true than not that he sustained a compensable occupational disease caused by exposure to the hazards of driving a bus, or that the hazards of driving a bus aggravated or accelerated any pre-existing disease process. The ALJ allowed the respondents to withdraw their admissions of liability. The ALJ denied and dismissed the claim from the date of the entry of his order.

On appeal, the claimant’s sole argument is that the ALJ erred in applying the preponderance of evidence standard rather than the clear and convincing standard when deciding the issues of causation and compensability. We disagree.

Colorado courts have recognized that proof of a work-related injury is, in the first instance, a threshold issue of fact to be determined by an ALJ under the preponderance of the evidence standard. Section 8-43-201, C.R.S. 2009; Upchurch v. Industrial Comm’n 703 P.2d 628, 630(Colo. App. 1985); Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000) Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 18 P.3d 790 (Colo. App. 2000).

Page 3

We acknowledge that under 8-42-107(8)(c) C.R.S. 2009, the DIME physician’s medical impairment rating is binding unless overcome by “clear and convincing evidence” and consequently, the courts have held that the DIME physician’s determination that an impairment is or is not caused by the industrial injury is also subject to the clear and convincing evidence standard. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002) Qual-Med, Inc. v. Industrial Claim Appeals Office, supra.
However, we are aware of no case law, and the claimant cites none, which construes § 8-42-107(8)(b) as extending the DIME provisions to initial compensability determinations, including cases where the issue involves causation. Chasteen v. King Sooper, Inc., W.C. No. 4-445-608 (July 11, 2001), affd., Chasteen v. Industrial Claim Appeals Panel (Colo. App. No. 02CA0864, February 27, 2003). Here because the ALJ allowed the respondents to withdraw their admission, the issue before the ALJ was the threshold issue of compensability. Thus, in our opinion, there was no error in the ALJ’s application of the burden of proof on the issue of compensability.

IT IS THEREFORE ORDERED that the ALJ’s order dated June 5, 2009 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ Curt Kriksciun

______________________________ Thomas Schrant

Page 4

THIS PAGE INTENTIONALLY LEFT BLANK

Page 5


POUDRE SCHOOL DISTRICT R-1, Attn: TIFFONY BONNER, COLLINS, CO, (Employer).

CCMSI, Attn: KATHY LINDGREN, GREENWOOD VILLAGE, CO, (Insurer).

RING ASSOCIATES, PC, Attn: BOB L. RING, ESQ., FT COLLINS, CO, (For Claimant).

RITSEMA LYON, PC, Attn: PAUL D. FELD, ESQ., DENVER, CO, (For Respondents).

Page 1