W.C. No. 4-594-406.Industrial Claim Appeals Office.
December 2, 2005.
FINAL ORDER
The respondent seeks review of an order dated June 15, 2005 of Administrative Law Judge Henk (ALJ) that found the claimant’s acceptance of a lump sum did not constitute a waiver, and that found that a Division-sponsored independent examination (DIME) should not be invalidated because the claimant presented pictures and a letter to the DIME physician. We affirm.
The claimant sustained an admitted work-related injury on October 16, 2003. The authorized treating physician (ATP) opined that the claimant’s left knee and ankle problems were work-related but that his right knee and low back problems were not. The ATP determined that the claimant sustained a 33 percent lower extremity rating, and a 5 percent whole person impairment due to defects in the skin and subcutaneous tissue. The respondent filed a final admission of liability (FAL) based on the opinion of the ATP.
On August 9, 2004 the claimant sent a letter to the respondent requesting a $10,000 lump sum. The respondent objected and on September 29, 2004 the Director of the Division of Wokers’ Compensation entered an order requiring the respondent to make the lump sum payment.
A DIME was performed on October 13, 2004. At the DIME the claimant showed the physician pictures of the work place and a letter dated May 3, 2004 that he had written to the ATP. The DIME physician reported that the claimant’s right knee complaints were related to the industrial injury.
A hearing was held at which the respondent sought to overcome the DIME opinion that the right knee problems were caused by the industrial injury, and at which the claimant sought temporary disability benefits. The respondent argued at the hearing that the claimant’s request for a lump sum closed the claim, and that the DIME was invalidated by the claimant’s submission to the doctor at the examination of pictures and a letter to the ATP discussing the mechanism of his injury.
Following the hearing the ALJ concluded that the respondent had failed to overcome the DIME report concerning the cause of the claimant’s right knee problems. Accordingly, because the parties had stipulated that if the knee was related to the industrial injury the claimant was not at MMI, she awarded temporary disability benefits. The ALJ rejected the respondent’s arguments that the claim was closed by the claimant’s request for a lump sum, and that the DIME was rendered invalid when the claimant brought photographs to it. The respondent appealed.
I.
The respondent first contends that the ALJ erred in finding that the claimant’s request for and acceptance of a lump sum did not constitute a waiver of his claim for further permanent partial disability (PPD). The respondent relies on Brunetti v. Industrial Commission, 670 P.2d 1246 (Colo.App. 1983), as authority for its position. We are not persuaded.
Waiver is the voluntary and intelligent surrender of a known right. Johnson v. McDonald, 697 P.2d 810 (Colo.App. 1985). Waiver may be explicit or implied from conduct inconsistent with assertion of the right. However, a waiver implied from conduct must unambiguously reveal the party’s intention to waive the right. Department of Health v. Donahue, 690 P.2d 243
(Colo.App. 1997). The question of whether a waiver has been shown is usually one of fact for determination by the ALJ, and we must uphold that determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2005; Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988).
As the Court of Appeals recently pointed out in Leprino Foods Company v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 04CA1379, December 1, 2005), in Brunetti the claimant failed timely to object to the FAL, the case was therefore closed, and the claimant tried to obtain additional benefits without a reopening. The claimant’s acceptance of the lump sum payment was considered a “settlement” partly because the claimant was notified the claim would be considered closed if he filed no objection, the claimant did not object within the allotted time, and the claimant accepted payment under the admission.
In this case, as in Leprino the FAL notified the claimant of the right to object to the final admission and request a DIME See § 8-43-203(2)(b)(II), C.R.S. 2005 (establishing notice requirements for an FAL). After the FAL was mailed, the claimant exercised his rights to challenge the FAL and request a DIME. Thus, as the ALJ recognized, this is not a case where the claimant, after receiving adequate notice of his rights, declined to challenge the admission and “tacitly” accepted a lump sum payment as a “settlement” of her claim. Neither the claimant’s action in objecting to the FAL and filing a notice to select a DIME, nor the content of the August 9, 2004 letter, reflect the claimant’s knowing and intelligent decision to surrender her rights to dispute the FAL and request a DIME. Consequently, the record fully supports the ALJ’s finding that the claimant’s conduct did not demonstrate the kind of knowing, intelligent and unambiguous conduct required to infer a waiver.
The cases of Carey v. Sanmina-Sci, W.C. 4-58-019 (December 20, 2004), and McClain v. City of Cripple Creek, W.C. 4-543-147
(November 1, 2004) are distinguishable. In those cases the claimants filed an Applications for Lump Sum payment of PPD which expressly accepted the admissions filed by the insurance carrier on the issue of PPD. In the present case the claimant’s August 9, 2004 letter contained no such acceptance of the admission. Under these circumstances, we perceive no basis on which to interfere with the ALJ’s determination. The order is therefore affirmed with respect to the determination that the request and acceptance of a lump sum payment did not constitute a waiver of the claimant’s right to contest PPD.
II.
The respondent also contends that the ALJ erred in not invalidating the DIME report based upon the claimant’s presentation to the DIME physician of accident photographs and a letter. Specifically, the respondent argues that the claimant violated Rule of Procedure XIV(L)(3)(j) and Rule of Procedure XIV(L)(6)(a). Although the “Conclusion” portion of the respondent’s brief is incomplete, we infer from the argument that the respondent seeks an order striking the DIME report or, in the alternative, a remand with instructions to the ALJ to reconsider whether the claimant’s violations of the rules was harmless. We are unpersuaded that the ALJ erred.
Initially, it is doubtful that the legal issue presented here is properly characterized as whether the claimant violated Rule XIV(L)(3)(j) or Rule XIV(L)(6)(a) by bringing photographs of the scene of his industrial accident to the DIME. Rather, the legal question more properly is whether the communication the claimant engaged in at the examination exceeded that permitted by Rule XIV(L)(2)(k), which authorizes the independent medical examiner to “engage in communication” with the claimant during the examination.
Rule XIV (L)(6)(a) follows the heading “Communication with an IME Physician,” and provides that:
During the IME process, there shall be no communication allowed between the parties and the IME physician unless approved by the director, or an administrative law judge. Any violation may result in cancellation of the IME.
Rule XIV(L)(6)(b), then addresses communications with the doctor following acceptance by the Division of the DIME report, limiting such communication to approval by the director, agreement of the parties, order of an ALJ, or deposition or subpoena approved by an ALJ.
Rule XIV(L)(3)(j) does not expressly address communication with the physician, but rather governs the materials that must be excluded from the “medical records package” submitted prior to the DIME by the insurance company. It states that:
Medical bills, adjuster notes, surveillance tapes, admission, denials, vocational rehabilitation reports, non-treating nurse case manager records, or commentaries to the IME physician shall not be submitted without written agreement of all parties, order of an administrative law judge or prior permission of an administrative law judge or prior permission of the division.
Whatever the scope of these rules in prohibiting or limiting communication by the parties with the independent medical examiner, they must be read in conjunction with Rule XIV(L)(2)(k), which states that the doctor must not engage in communication with any person other than Division staff except under narrow circumstances, one of which is with “the claimant during the IME examination.” It is thus clear that the rules contemplate that the claimant will “communicate” with the physician during the examination, and neither Rule XIV(L)(6)(b) nor Rule XIV(L)(3)(j) may reasonably be construed to prohibit such communication during the actual independent medical examination. See Henderson v. RSI, Inc., 824 P.2d 91
(Colo.App. 1991) (rules must be interpreted to give consistent, harmonious, and sensible effect to the whole of the regulatory scheme).
It may well be that those materials prohibited by Rule XIV(L)(3)(j) from inclusion in the medical records package would also exceed the scope of permissible “communication” if actually given to the doctor during the examination. In the present case, however, it is unnecessary for us to resolve whether the presentation to the doctor of pictures of the scene of the injury exceeded permissible “communication” at the examination under Rule XIV(L)(2)(k).
As noted, the ALJ entered a factual finding that the claimant’s bringing photographs and a letter to the independent medical examination was “harmless.” The ALJ reviewed Dr. Woodcock’s report and inferred from it that neither the photographs nor the letter had any “persuasive” effect on the doctor’s opinion regarding the cause of the claimant’s knee problems. The ALJ noted in this respect that in reaching his conclusions Dr. Woodcock relied upon medical records in the file and upon the condition of the claimant’s knee before and after the industrial accident. The ALJ also noted that the contents of the letter largely duplicated information that the claimant recited to the doctor in any event.
In our view, the ALJ’s reading of Dr. Woodcock’s report is a plausible one. It is true that the doctor referred to the pictures in that portion of his report setting forth the “History from the Patient.” However, in stating his opinion on causation, the doctor noted the absence prior to the accident of any knee problems, the bruising and pain in the right knee following the accident, the description of the accident, and Dr. Morgan’s letter of August 4, 2004. Nor do we discern anything in the doctor’s report suggesting that he relied upon the photographs to resolve any uncertainty in his opinions. Moreover, we do not understand the respondent to argue that he was misled or in any way deceived by the photographs or by the claimant’s “communication” with the doctor during the examination. It is the ALJ’s responsibility to weigh the medical evidence presented and to resolve any inconsistencies or conflicts. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Our review of the ALJ’s interpretation of the doctor’s medical report is narrow, and we defer to the plausible inferences she drew from that report. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). Because the ALJ’s reading of the DIME report is a plausible one, we decline to disturb her finding that the claimant’s presentation to the doctor of the photographs and letter did not affect any substantial right of the respondent See A R Concrete Construction v. Lightener, 759 P.2d 831
(Colo.App. 1988); § 8-43-310, C.R.S. 2005 (court of appeals must disregard any error unless complaining party was damaged).
IT IS THEREFORE ORDERED that the ALJ’s order issued June 15, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Tom Schrant
Rudy Aragon, Denver, CO, Debbie Dunst, Safeway, Inc., Englewood, CO, Debbie Dunst, Safeway, Inc., Denver, CO, Neil D. O’Toole, Esq., Denver, CO, (For Claimant).
Douglas A. Thomas, Esq., Greenwood Village, CO, (For Respondent).