W.C. No. 4-147-597Industrial Claim Appeals Office.
January 22, 1996
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge Erickson (ALJ) which awarded the claimant permanent disability benefits based upon a medical impairment of twenty-five and one-half percent as a whole person. We affirm.
The ALJ found that the claimant sustained a compensable neck injury in June 1992. The claimant’s authorized treating physician, Dr. Willingham, determined that the claimant reached maximum medical improvement (MMI) on March 3, 1993, with a twenty-two percent whole person impairment. Dr. Willingham stated that she attributed ten percent impairment to “impairment of the claimant’s gait and station,” five percent to impairment of the upper extremities, and nine percent to “a single level operated cervical disk.” Later, Dr. Willingham apportioned twenty-five percent of the claimant’s overall disability to a pre-existing condition, resulting in a final impairment rating of sixteen and one-half percent of the whole person.
In May 1993, the respondent filed a final admission of liability based upon Dr. Willingham’s apportioned rating. The claimant objected to the final admission, but nothing further transpired until November 1994 when the respondent filed a petition to close the claim based on failure to prosecute.
Shortly thereafter, the claimant requested an independent medical examination (IME) on the issue of whether Dr. Willingham properly “apportioned impairment.” The claimant also filed an Application for Hearing in March 1995, and listed the issues as “permanent partial benefits” and “apportionment of medical impairment.”
An IME was conducted by Dr. Jones in February 1995. Dr. Jones opined that the claimant’s overall impairment was fifteen and one-half percent of the whole person, and apportioned none of this impairment to the claimant’s pre-existing condition. Dr. Jones attributed ten percent impairment to the claimant’s “single level surgical fusion,” two percent to the claimant’s “proprioceptive loss in the lower extremities,” and three and one-half percent to loss of cervical range of motion.
At the hearing, which was conducted in July 1995, the respondent argued that the doctrine of laches precluded the claimant from requesting the IME one and one-half years after the 1993 final admission of liability. For his part, the claimant argues that he overcame the medical impairment rating of Dr. Jones by clear and convincing evidence because Dr. Jones assigned only two percent for impairment of the claimant’s gait, and the AMA Guides require five percent impairment. However, the claimant also took the position that Dr. Jones correctly declined to apportion any impairment to the pre-existing condition. In making these arguments, the claimant requested the ALJ to take “administrative notice” of the AMA Guides, and the ALJ apparently did so. (Tr. p. 37). However, copies of the pertinent portions of the AMA Guides were not attached to the record.
In the order dated August 17, 1995, the ALJ rejected the argument that laches precluded the claimant from requesting the IME examination. The ALJ stated that the respondent failed to identify any specific prejudice resulting from the delay, and the respondent was in no different position in February 1995, when Dr. Jones examined the claimant, than it would have been in June or July 1993. Moreover, the ALJ stated that there was no “unconscionable delay” because the claimant had financial difficulties which interfered with his ability to afford an IME.
Moreover, the ALJ found that the impairment rating of Dr. Jones was overcome by clear and convincing evidence. In support of this determination, the ALJ found that the AMA Guides do not permit a rating lower than five percent for “proprioceptive loss in the lower extremity,” and therefore, the rating of Dr. Jones was artificially low. The ALJ then credited various portions of the ratings issued by Dr. Jones and Dr. Willingham, and determined that the claimant’s overall rating was twenty-five and one-half percent of the whole person. The ALJ also credited the opinion of Dr. Jones that none of the impairment was subject to apportionment.
I.
On review, the respondent first contends that the ALJ erred in rejecting the defense of laches. The respondent asserts that the claimant’s delay in requesting the IME was lengthy, and that it prejudiced the presentation of a defense. Specifically, the respondent asserts that the IME physician was deprived of evidence concerning whether or not the claimant aggravated his condition, or suffered a new injury, during the period of time following the final admission and prior to the IME. We are not persuaded.
The doctrine of laches may be applied to deny statutory relief if a party engages in unconscionable delay in enforcing its rights, and the delay prejudices the opposing party. See Bacon v. Industrial Claim Appeals Office, 746 P.2d 74 (Colo.App. 1987). Prejudice must be demonstrable and not the result of bald assertions lacking an explanation of the nature and extent of the prejudice. Caldwell v. District Court, 644 P.2d 26 (Colo. 1982). The question of whether a party has proven laches is one of fact Snow Basin, Ltd. v. Boettcher Co., Inc., 805 P.2d 1151 (Colo.App. 1990).
Here, the record contains substantial evidence supporting the finding that the delay in requesting an IME was not “unconscionable” under the circumstances. The claimant presented specific evidence of financial difficulties which impaired his ability to pay the fee necessary for obtaining an IME.
Moreover, the record supports the ALJ’s determination that the respondent failed to present evidence of demonstrable prejudice. The respondent did not offer any evidence that the claimant actually sustained an injury or aggravation of his condition subsequent to the filing of the final admission of liability. Neither was the respondent precluded from conducting discovery to determine whether such an incident occurred. Therefore, the mere assertion that the claimant might have suffered an injury does not establish the type of demonstrable prejudice which would support application of the doctrine of laches.
II.
The respondent’s next contention is that the ALJ erred in considering issues beyond those set for hearing. In support of this argument, the respondent points out that, in the request for an IME, the claimant specifically described the “issue” as “apportionment.” Therefore, the respondent asserts that the ALJ erred in determining the issue of the claimant’s overall medical impairment. We reject this argument.
Apparently, the respondent’s argument is an assertion that it was denied due process of law because it was unaware that the question of the claimant’s impairment rating, as distinguished from the more limited “apportionment” issue, would be decided. In this regard, we do not dispute that the respondent was entitled to notice that the question of “impairment” would be determined. Parties are always entitled to notice of the issues to be considered so that they may present evidence in their behalf, and confront adverse evidence. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990).
However, we find no violation of due process in this case. First of all, the claimant’s Application for Hearing listed the issue of permanent impairment in addition to the issue of apportionment. Therefore, the respondent was put on notice that the issue was wider than mere apportionment.
Moreover, we agree with the claimant that the entire statutory scheme placed the respondent on notice that the claimant’s overall impairment, as determined by the IME physician, would be considered. Under §8-42-107(8)(c), C.R.S. (1995 Cum. Supp.), when a division IME is requested the ALJ and the parties are bound by the IME physician’s impairment rating unless overcome by clear and convincing evidence. Metro Moving Storage Co. v. Gussert, ___ P.2d ___ (Colo.App. No. 94CA1926, June 15, 1995). Moreover, apportionment is merely one aspect of the IME physician’s overall rating. Askew v. Sears Roebuck Co., ___ P.2d ___ (Colo.App. No. 94CA1932, June 15, 1995).
III.
The respondent’s final contention is that the ALJ erred in allowing the claimant’s attorney to “testify” concerning calculation of the claimant’s impairment rating. The respondent argues that “the only way to present competent medical evidence in this claim is to put the physicians on the stand and examine them.” We find no error.
Under the statutory scheme for determining medical impairment, the ALJ must first determine whether the IME physician’s rating was overcome by clear and convincing evidence. This is a question of fact to be determined based on the evidence. Moreover, once this determination is made, it is the responsibility of the ALJ to determine the claimant’s medical impairment in accordance with the AMA Guides and based on the evidence presented. Metro Moving Storage Co. v. Gussert, supra; Askew v. Sears Roebuck Co., supra.
Here, the ALJ found that the rating of Dr. Jones was overcome by clear and convincing evidence. This determination was based upon the ALJ’s finding that the rating was artificially low under a specific provision of the AMA Guides. The comments of the claimant’s attorney concerning this issue amounted to argument, and he did not purport to “testify” concerning the issue. The ALJ correctly determined that it was his responsibility to determine the facts, and he did so in this case.
As noted, the pertinent provisions of the AMA Guides on which the ALJ relied were not included in the record. However, counsel for the respondent made no objection concerning this procedure, and is in no position to object to the state of the record at this point in the proceedings. Moreover, there is no requirement that live medical testimony be presented. The presentation of medical reports is a valid method of offering medical evidence. Section 8-43-210, C.R.S. (1995 Cum. Supp.).
Moreover, we perceive no error in the ALJ’s decision to credit portions of each physician’s rating in determining the claimant’s overall medical impairment. The ALJ complied with the statutory dictate requiring determination of the impairment rating in accordance with the AMA Guides, and utilized his fact-finding authority in crediting various portions of the medical evidence. Metro Moving Storage Co. v. Gussert, supra,.
Neither the statute nor case law requires the ALJ to rely exclusively on a single physician’s rating if the IME physician’s rating is overcome by clear and convincing evidence.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 17, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed January 22, 1996 to the following parties:
Frank J. Cassidy, 2345 S. York St., #111, Denver, CO 80210
City County of Denver, Attn: Wayne Vaden, Esq., 1445 Cleveland Pl., #200, Denver, CO 80202 (For the Respondent)
City County of Denver, Attn: Richard Uhrlaub, 1445 Cleveland Pl., #200, Denver, CO 80202
Thomas C. Thrush, Esq., 1655 Lafayette St., #301, Denver, CO 80218 (For the Claimant)
By: _________________________