W.C. No. 4-156-147.Industrial Claim Appeals Office.
May 3, 2005.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated September 23, 2004. The claimant contends the ALJ erred in denying a petition to reopen based on error, mistake and change of condition. We affirm the order in part, set it aside in part and remand for entry of a new order.
This case has a complex procedural history. Significant portions of that history are summarized in our Final Order dated May 20, 2003, and the subsequent opinion of the Court of Appeals dated July 1, 2004, and we incorporate that history here. We also take administrative notice from our records concerning this case that the Supreme Court denied the claimant’s petition for writ of certiorari on January 25, 2004, and the Court of Appeals issued its mandate on January 31, 2005.
The result of the appellate process was the affirmation of our Final Order, and that of ALJ Muramoto, holding that the claimant consented to an “agreed upon” Division-sponsored independent medical examination (DIME). Consequently, the DIME physician’s finding that the claimant reached maximum medical improvement (MMI) on October 13, 2000, was “binding” on the parties. The DIME physician found the claimant’s medical records did not sufficiently document a causal relationship between the claimant’s “symptom complex,” allegedly caused by a Cerebral Spinal Fluid (CSF) leak, and the dural puncture which occurred during surgery for the industrial knee injury.
While the appeal of our May 2003 order was proceeding, the claimant filed a petition to reopen based on error, mistake and change of condition. The hearing to address the petition commenced before the ALJ on March 8, 2004. At the hearing claimant’s counsel explained that he proposed to show by the presentation of additional medical evidence, including the results of two post-MMI epiduroscopy examinations, that the DIME physician erred in concluding the CSF leak could not be proven and that the claimant’s symptom complex is unrelated to the industrial injury. However, the ALJ dismissed the claim for reopening based on error or mistake, finding that the agreed upon DIME physician’s finding of MMI is “binding” and not subject to dispute by means of a petition to reopen based on error or mistake. (See former § 8-42-107(8)(b)(II), significantly amended by deletion of “agreed upon DIME” provision at 1998 Colo. Sess. Laws, ch. 313 at 1429).
However, the ALJ allowed the claimant to proceed on the theory that her symptoms had worsened and the claim should be reopened based on change of condition. The ALJ found that the claimant’s symptoms, consisting principally of headache and back pains, worsened following the MMI date of October 13, 2000. Further, he stated that a “binding determination of MMI” by a DIME physician does not usually preclude reopening based on a worsening because the ALJ has independent authority, pursuant to §8-43-303, C.R.S. 2004, to reopen a claim based on change of condition. However, the ALJ noted that in this case the alleged worsening involves the same symptoms which the agreed upon DIME physician found were not caused by the industrial injury. In these circumstances the ALJ concluded that the DIME physician’s “binding determination” concerning the cause of the symptoms may not be challenged by a petition to reopen based on worsened condition.
Following the entry of the ALJ’s September 23 order, the claimant filed a petition to review and requested the ALJ to “reconsider” the ruling. The claimant also requested permission to depose the DIME physician, ostensibly to obtain his opinion concerning the significance of the epiduroscopy examinations. The ALJ granted permission to depose the DIME physician, but stated the purpose of the deposition was not to “allow the claimant to supplement the record,” and the deposition would not affect the appeal. (Order of ALJ dated December 21, 2004).
Following the DIME physician’s deposition, the claimant submitted a brief in support of the petition to review. The primary if not the entire legal focus of this brief is directed to the DIME physician’s deposition testimony. The claimant asserts this testimony establishes the DIME physician’s report should be stricken because the DIME physician testified to numerous violations of Rule of Procedure XIV (L), 7 Code Colo. Reg. 1101-3 at 50-62, concerning the conduct of a DIME.
I.
In the petition to review the order, the claimant argues the ALJ erred in concluding that he was bound by the DIME physician’s findings concerning the cause of the claimant’s worsened symptoms. The claimant reiterates the argument that the ALJ is entitled to reopen the claim based on error, mistake or change of condition. For their part, the respondents assert the ALJ lacked “jurisdiction” to reopen the claim on any ground. We conclude the ALJ erred in holding that he was precluded from reopening based on worsened condition and remand for entry of a new order on that issue.
Insofar as the ALJ held that the claimant was not entitled to present medical evidence to demonstrate that the DIME physician was mistaken in placing the claimant at MMI, we agree with that conclusion. The “agreed upon” DIME provision of § 8-42-108(8)(b)(II) provided that if a party disputed the authorized treating physician’s determination of MMI, the parties could select a DIME physician by “mutual agreement” and the “finding” of such physician would be “binding on the parties and the division.”
The opinion of the Court of Appeals, which has now become final by the exhaustion of all available appellate remedies, establishes that the DIME in this case was “agreed upon” within the meaning of the statute. Therefore, the claimant waived the right to contest the DIME physician’s finding of MMI by seeking to overcome it by clear and convincing evidence. As the respondents point out, we recently held in Berg v. United Parcel Service, W.C. No. 4-527-278 (May 25, 2004), that where a DIME physician found the claimant to be at MMI, and the claimant did not timely seek to overcome that determination, the claimant was not free to collaterally attack the MMI date by seeking to reopen based on mistake. The rationale for the Berg decision is that permitting the claimant to reopen based on proof that the DIME physician was “mistaken” concerning MMI would constitute an impermissible “constructive challenge” to the DIME physician’s finding. See Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995). If such reopenings were permitted, a claimant could circumvent the statutory requirement to overcome the DIME physician’s MMI determination by clear and convincing evidence by seeking to reopen under the discretionary standard applicable to reopening based on mistake. See Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996).
Applying those principles here, the ALJ correctly declined to permit reopening the MMI determination based solely on proof that the agreed upon DIME physician was mistaken or in error when he placed the claimant at MMI on October 13, 2000. Permitting the claimant to mount such a “constructive challenge” would, in effect, permit the claimant to renege on the agreement to treat the DIME physician’s MMI determination as “binding.”
However, we disagree with the ALJ, and necessarily the respondents, that the ALJ was prohibited from reopening based on a change of condition. The essence of the ALJ’s ruling is that the agreed upon DIME physician’s finding concerning the “cause” of the claimant’s symptoms became “binding” in the sense that it could never again be challenged, even if the claimant’s condition worsened and additional evidence concerning the cause of the symptoms became available.
We recently addressed a similar issue in White v. Baker Tetrolite, Inc., W.C. No. 4-442-071 (March 25, 2005). In White a DIME physician assigned the claimant a 29 percent whole person impairment based on a cervical injury and depression. When the DIME examined the claimant he noted the claimant was reporting upper extremity symptoms, dizziness and blurred vision, but the DIME physician opined these symptoms were probably not related to the industrial injury because of the date of onset. The claimant did not request a hearing to challenge the DIME and the claim was closed. Later, the claimant’s upper extremity symptoms worsened and he sought to reopen for additional medical and temporary total disability (TTD) benefits. The ALJ granted the reopening and the respondents appealed arguing that the ALJ “failed to give sufficient weight to the DIME physician’s opinion that the claimant’s symptoms” were not related to the industrial injury.
We upheld the ALJ’s ruling that the DIME physician’s opinion concerning the “cause” of the worsened symptoms was not entitled to any special weight. Rather, the claimant was merely required to show by a preponderance of the evidence that his condition had worsened, and the worsening was causally-related to the industrial injury. See Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082 (Colo.App. 2000); Chavez v. Industrial Commission, 714 P.2d 1328 (Colo.App. 1985). We recognized that determining the cause or causes of a claimant’s condition is an inherent factor in diagnosis, and hence in determining MMI. Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998). However, we held the DIME physician is limited to assessing the cause of the claimant’s condition at the time of the DIME, and is not called upon to render an opinion concerning the cause or causes of future symptoms See § 8-40-201(11.5), C.R.S. 2004 (MMI is defined as a point in time when the claimant’s condition has become stable and no further treatment is reasonably expected to improve the condition); Gutirrez v. Ready Men Labor, Inc., W.C. No. 4-280-325 (January 9, 2002); Westerkamp v. Target Stores, W.C. No. 4-408-369 (December 26, 2001). Further, the opinion of a DIME physician is not to be given any special weight except where the statute expressly so requires. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002) (claimant not entitled to procure a DIME to establish that his condition worsened and the worsening was caused by the industrial injury because these issues are beyond the statutory scope of the DIME process). Finally, the White decision emphasized that the reopening provisions reflect that the interest in obtaining a final resolution of the claim must be balanced against the strong legislative policy favoring a just result. Renz v. Larimer County School District Poudre R-1, supra.
It follows that we disagree with the ALJ that merely because the “agreed upon” DIME physician concluded that as of October 13, 2000, there was insufficient evidence to establish that an injury-related CSF leak was causing the claimant’s symptoms, that the DIME physician’s opinion was “binding” concerning the cause of the claimant’s worsened symptoms. Indeed, if a claimant proves that a particular condition has worsened after the initial MMI date, and that there is new evidence concerning the cause of this worsening, we fail to perceive how the DIME physician’s finding of MMI on a particular date should be considered permanently binding. Although the agreed upon DIME physician’s opinion was binding as to the date of MMI, and the claimant waived the right to overcome that finding by clear and convincing evidence, the claimant did not implicitly waive the separate statutory right to reopen should the condition subsequently worsen. Cf. Watkins v. Monfort, Inc., W.C. No. 4-219-467
(March 17, 1998) (claimant who failed to challenge DIME physician’s initial finding of MMI not required to overcome the DIME by clear and convincing evidence when seeking to reopen based on worsened condition because the statutory issues are “separate and distinct”).
The respondents cite Berg v. United Parcel Service, supra, and Cordova v. Industrial Claim Appeals Office, supra, as authority for their position. However, as discussed above, Berg involved a petition to reopen based on mistake, and therefore involved a direct “constructive challenge” to the finding of MMI. Cordova supports the result we reach here because it emphasizes that the binding effect of a DIME physician’s opinion, whether an agreed upon or selected DIME, is limited to those issues specifically designated by statute.
Finally, we do not consider City and County of Denver v. Industrial Claim Appeals Office, 58 P.3d 1162 (Colo.App. 2002), to be in conflict with this interpretation of the law. In the Denver case the city filed an unchallenged FAL which admitted the claimant sustained a compensable injury in an auto accident, and admitted liability for permanent partial disability (PPD) benefits. After the claimant successfully reopened based on a worsened condition a DIME physician opined the claimant had a zero percent impairment rating because the initial impact was too mild to have caused any injury. However, the court found the DIME physician’s rating was an “insufficient and inadmissible” basis to permit the respondents to claim an overpayment of previously paid PPD benefits. The court ruled that on a “change of condition reopening” the issue is limited to measuring a change “from when the claim was closed, as established in the original proceeding, and to [the claimant’s] condition after reopening.” “Original issues,” including work-connection, employment status, occurrence of a compensable accident, and “degree of disability at the time of the first award” may not be relitigated. The court concluded that the DIME physician was addressing the “original causation issue” which was “no longer open to question.”
Here, permitting the claimant to reopen based on the worsened condition does nothing more than determine whether there is sufficient evidence to show entitlement to benefits after the claimant reached MMI on October 13, 2000. Permitting reopening based on worsened condition does not challenge the degree of disability on the date of MMI, nor does it challenge the existence of a compensable injury.
It follows that the matter must be remanded to the ALJ for entry of a new order concerning whether or not the claimant proved that her condition worsened as a result of the compensable injury. We note that if the ALJ chooses to rely on evidence related to the epiduroscopy examinations, he may wish to consider the respondents’ arguments concerning the necessity of special findings in accordance with People v. Shreck, 22 P.3d 68 (Colo. 2001).
II.
The claimant argues the agreed upon DIME physician’s finding that she reached MMI is so tainted by allegedly improper conduct by the DIME physician and the respondents that the “only appropriate and fair remedy would be to strike the DIME report dated October 13, 2000.” This argument is predicated on information which the claimant procured during the course of the post-hearing deposition of the DIME physician. We conclude this issue is not properly before us.
It is clear from the ALJ’s “note” appended to the order of December 21, 2004, and the express denial of the motion to strike the DIME contained in the order of March 4, 2005, that he did not find the issue of “striking” the DIME report was properly before him. Specifically, the “note” states that the post-hearing deposition would not affect the appeal of the September 23 order. Further, in denying the claimant’s motion to strike the DIME report the ALJ stated that the DIME report had already been admitted in evidence. Hence, the ALJ determined that the issue of striking the DIME report was not timely raised, a conclusion which is amply supported by the record and is within the ALJ’s discretion. See IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988) (ALJ has wide discretion in conduct of administrative hearing); Rule of Procedure VIII (A)(4), 7 Code Colo. Reg. 1101-3 (party may not add issue except on agreement of parties or approval of ALJ for good cause shown). Because the issue of striking the DIME report was not timely raised to the ALJ we may not consider it for the first time on appeal. Kuziel v. Pet Fair, Inc., 948 P.2d 103
(Colo.App. 1997).
The respondents request for a finding that the claimant’s argument is “frivolous” is denied. The record reflects some degree of justifiable confusion concerning the exact scope and purpose of the deposition.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 23, 2004, is set aside to the extent it denied the petition to reopen based on worsened condition, and the matter is remanded for entry of a new order on this issue. This order does not authorize a further hearing on the issue.
IT IS FURTHER ORDERED that the ALJ’s order is affirmed to the extent it denied the petition to reopen based on error or mistake.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Robert M. Socolofsky
Joanne Arczynski, Vail, CO, Club Mediterranee of Colorado, Frisco, CO, Legal Department, Pinnacol Assurance — Interagency Mail Brad R. Irwin, Esq., Denver, CO, (For Claimant).
Thomas L. Kanan, Esq., Denver, CO, (For Respondents).