IN THE MATTER OF THE CLAIM OF SHANNON AUSTGEN, Claimant, v. THE CHILDREN’S PLACE, Employer, and ZURICH AMERICAN INSURANCE, and HARTFORD ACCIDENT INDEMNITY COMPANY Insurers, Respondents.

W.C. Nos. 4-760-723 4-801-541.Industrial Claim Appeals Office.
December 27, 2010.

ORDER OF REMAND
The respondent Zurich American Insurance (Zurich) seeks review of an order of Administrative Law Judge Friend (ALJ) dated June 17, 2010, that ordered it to pay the claimant permanent partial disability (PPD) benefits based on an impairment of 29 percent of the whole person. We affirm the order in part, set it aside in part and remand for entry of a new order.

The claimant sustained a compensable injury on April 28, 2008 and complained of neck and low back pain. This claim is identified as W.C. No. 4-770-723 (2008 injury). The employer was insured with Zurich at the time of this injury. The authorized treating physician (ATP) placed the claimant at maximum medical improvement on November 13, 2008 with a zero percent impairment rating.

The claimant suffered a second injury on July 23, 2009 with the same employer. This claim is identified as W. C. No. 4-801-542 (2009 injury). The employer was insured at that time with the Hartford Accident and Indemnity Company. The ALJ found that this accident worsened her condition.

The claimant underwent a Division-sponsored independent medical examination (DIME). The ALJ found that it was the opinion of the DIME physician that the claimant’s rating should include her cervical spine and the claimant sustained a 29 percent of the whole person impairment.

Page 2

I.
Zurich contends that the record does not support the ALJ’s conclusion that the DIME physician believed that the claimant should be given a rating for her neck. Zurich argues that the DIME physician originally opined that the claimant did not have ratable neck injury as part of the April 28, 2008. Zurich argues that in order to overcome this opinion the claimant was required to show it was highly probable that the DIME physician erred by concluding that the neck condition was part of the 2008 injury.

However, if the DIME physician offers ambiguous or conflicting opinions concerning MMI or impairment, it is for the ALJ to resolve the ambiguity and determine the DIME physician’s true opinion as a matter of fact. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000); Stephens v. North Air Package Express Services, W. C. No. 4-492-570 (February 16, 2005), affd, Stephens v. Industrial Claim Appeals Office
(Colo. App. 05CA0491, January 26, 2006) (not selected for publication).

In so doing, the ALJ should consider all of the DIME physician’s written and oral testimony. Lambert Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656, 659 (Colo. App. 1998). A DIME physician’s finding of MMI and permanent impairment consists not only of the initial report, but also any subsequent opinion given by the physician See Andrade v. Industrial Claim Appeals Office, 121 P.3d 328 (Colo. App. 2005) (ALJ properly considered DIME physician’s deposition testimony where he withdrew his original opinion of impairment after viewing a surveillance video); see als Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082 (Colo. App. 2002) (noting that DIME physician retracted original permanent impairment rating after viewing videotapes showing the claimant performing activities inconsistent with the symptoms and disabilities she had reported). 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.; Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra.

Here the ALJ made the following findings of fact concerning the opinions of the DIME physician. The DIME physician stated initially that there was no significant injury. He rated the claimant’s impairment at 12 percent based on her low back condition. Exhibit D at 3. However, the DIME physician testified at hearing and early medical records where the claimant had complained of neck pain were pointed out to him. Tr. at 28-37. After reviewing those medical records the DIME physician gave several conflicting opinions as to the claimant’s impairment and whether the rating should include the cervical spine. Tr. at 27, 38, 41, 50, 52, 54. The DIME physician’s last opinion was that the claimant had more than six months of documented neck pain and that her rating should include her cervical spine. Tr. at 52.

Page 3

In our opinion the record supports a determination that the DIME physician offered ambiguous or conflicting opinions concerning impairment. Therefore it was a matter for the ALJ to resolve the ambiguity and determine the DIME physician’s true opinion as a matter of fact. In our view, there was substantial evidence supporting the ALJ’s resolution of ambiguities in the DIME physician’s true opinion that the claimant should be given a rating for her neck as part of the 2008 injury.

II.
Zurich next contends that even if the neck should be included in the rating the record does not support a 29 percent impairment rating. The ALJ concluded that the DIME physician’s opinion was that the claimant sustained an impairment of 29 percent of the whole person. Zurich argues that it is unclear from the order how the ALJ determined that the DIME physician’s final impairment rating was 29 percent as that number was not contained in any of the medical records nor was ever testified to at the hearing. We agree with Zurich’s argument in this regard.

In contrast, the claimant asserts that the DIME physician first gave the claimant an overall rating, including the cervical spine, of 31 percent but later corrected the cervical Table 53 rating from 6 percent to 4 percent rating which would reduce the overall rating from 31 percent to 29 percent. We agree with the claimant that the DIME physician in his testimony gave a rating of 31 percent which included the cervical spine. Tr. at 41. We further agree that the DIME physician later changed a component of the rating from 6 to 4 percent. Tr. at 54. However, we do not see in the transcript where the DIME physician then used the 4 percent component to compute a change in the overall rating from 31 percent to 29 percent. We note that the portion of the transcript the claimant directs us to, supposedly supporting a finding that the DIME physician corrected the overall rating from 31 percent to 29 percent, actually contains lay testimony from the claimant and a discussion between the ALJ and the attorneys of record.

It may be that using a 4 percent rating rather than the 6 percent rating from Table 53 would, under the American Medical Association Guidelines to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides) reduce the 31 percent rating to the 29 percent rating awarded by the ALJ. However, it is not readily apparent from the record. While the order itself does explain the inclusion of the cervical spine in the rating it does not explain the justification for the selection of the specific rating of 29 percent.

We are aware that the ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000). We further recognized

Page 4

that the testimony of the DIME physician could support a determination that the claimant deserved a 4 percent cervical rating from Table 53, which should be combined with a loss of range of motion in the neck for an overall cervical rating. We note also that there may be need to use the Combined Values Chart contained in the AMA Guides. However, it would be speculation for us to ascribe the apparent disparity between the finding that the claimant sustained a 29 percent of the whole person impairment based upon the opinion of the DIME physician and the lack of such specific opinion in the record as merely the result of some mechanical application of the AMA Guides. Because the findings do not support the award, we must remand the matter for a determination of the specific amount of permanent impairment.

III.
Zurich also contends that the testimony from the DIME physician, the claimant and Dr. Madsen demonstrate that a subsequent injury constituted an efficient intervening event that severed the causal link between the claimant’s cervical impairment, specifically her range of motion deficits, and her April 28, 2008 work injury. Zurich argues that the ALJ made no factual determinations on the issue of the intervening event of the second injury. In our view the factual findings are inadequate to permit review and the matter must be remanded for further findings.

We note that at the inception of the hearing, the attorney for the insurer, Hartford Accident Indemnity, which provided coverage on the 2009 injury, noted that apportionment was an issue and that its medical expert had apportioned 50 percent of the claimant’s current symptoms to the 2008 injury and 50 percent to the 2009 injury. Counsel for Zurich, who provided coverage on the 2008 injury, at the inception of the hearing argued that the evidence would show that the claimant was at MMI for the 2008 injury and any additional problems that the claimant had specifically with her neck would be due to a subsequent aggravation which occurred by the time of DIME. The ALJ did find that the claimant sustained a second injury on July 23, 2009 which worsened her condition. The second injury occurred before the DIME.

The claimant argues that the DIME physician stated that his opinions on impairment related solely to the 2008 injury. It is true that the DIME physician at the beginning of his testimony made such a statement. Tr. at 26. However, the DIME physician agreed that the measurement of loss of motion he found was made after the 2009 injury. Tr. at 43 48.

The claimant, citing Qual-Med, Inc. v. Industrial Claim Appeals Office 961 P.2d 590 (Colo. App. 1998), further argues that determining the cause of the various conditions is an inherent part of the DIME process and to the extent there was any

Page 5

confusion it was within the ALJ’s discretion to resolve those conflicts in the evidence. However, in our opinion the ALJ did not resolve those conflicts in the evidence.

Under the circumstances here, we may not conclude that the ALJ implicitly rejected the respondents’ defense of an intervening injury. See generally Womack v. Industrial Commission; 168 Colo. 364, 451 P.2d 761 (1969) (where the findings of fact do not afford an adequate basis for review, the matter must be remanded for additional findings); see also, Hall v. Industrial Claim Appeals Office, 757 P.2d 1132 (Colo. App. 1988) (basis for an order must be articulated). In our view, the ALJ’s order does not address the issue of whether there was an intervening injury in a manor sufficient to afford an adequate basis for review. Consequently, the matter must be remanded for that purpose Moland v. Roadway Package System, Inc., W. C. Nos. 4-282-792 and 4-282-794 (April 21, 2003); Unrein v. New Pipeline Installations, Inc., W. C. No. 3-106-663 (April 24, 1998).

IT IS THEREFORE ORDERED that the ALJ’s order dated June 17, 2010 is affirmed to the extent that it determined that the DIME physician’s true opinion was that the claimant should be given a rating for her neck as part of the 2008 injury. However, the order is set aside on the issues of the claimant’s entitlement to an impairment of 29 percent of the whole person and the issue of whether there was an intervening injury. The matter is remanded for additional findings on those two issues consistent with the views expressed herein.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ Curt Kriksciu

______________________________ Thomas Schrant

Page 6

SHANNON AUSTGEN, ELIZABETH, CO, (Claimant).

THE CHILDREN’S PLACE, Attn: JENNIFER BATES, CASTLE ROCK, CO, (Employer).

ZURICH AMERICAN INSURANCE, Attn: LAURA OROZCO, SCHAUMBERG, IL, (Insurer).

ELEY, GALLOWAY, TRIGG, LLP, Attn: DANIEL B. GALLOWAY, ESQ., DENVER, CO, (For Claimant).

THE KITCH LAW FIRM, PC, Attn: MICHELLE PRINCE, ESQ./NARSHA A. KITCH, ESQ., EVERGREEN, CO, (For Respondents).

THE HARTFORD ACCIDENT INDEMNITY, Attn: GLENN LEWOCZKO, LEXINGTON, KY, (Other Party).

THE LAW OFFICES OF SCOTT TESSMER, Attn: ANGELA WOOD, ESQ., ENGLEWOOD, CO, (Other Party 2).

Page 1