W.C. No. 4-181-242Industrial Claim Appeals Office.
August 11, 1997
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Erickson (ALJ) which awarded medical impairment benefits based upon a whole person impairment of 23 percent. We affirm.
The claimant suffered compensable injuries which necessitated a bilateral carpal tunnel release. Thereafter, the claimant developed complications which necessitated additional surgeries. The treating surgeon, Dr. Pav, rated the claimant’s permanent impairment from the industrial injuries as 1 percent of the right upper extremity and 2 percent of the left upper extremity.
The claimant was dissatisfied with Dr. Pav’s rating and therefore requested an independent medical examination (IME) under the provisions of § 8-42-107(8)(c), C.R.S. (1996 Cum. Supp.). The IME was performed by Dr. Parry. Utilizing the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides), Dr. Parry opined the claimant has sustained a “cumulative trauma disorder” which resulted in permanent impairment of the upper extremities and restricted range of motion in the cervical spine equal to 23 percent impairment of the whole person.
The ALJ determined that the respondents failed to overcome Dr. Parry’s medical impairment rating by clear and convincing evidence, as required by § 8-42-107(8)(c). Therefore, the ALJ ordered the respondents to pay medical impairment benefits based upon a 23 percent impairment of the whole person.
On review, the respondents contend that the claimant bore the initial burden to prove by a “preponderance of the evidence” that he suffered a compensable cervical injury. Therefore, the respondents argue that the ALJ misapplied the burden of proof by requiring them to present “clear and convincing evidence” to overcome Dr. Parry’s opinion that the claimant’s cervical impairment is causally related to the industrial injury. In support, the respondents cite Mendonca v. Industrial Claim Appeals Office, Colo. App. No. 96CA0736, December 12, 1996 (not selected for publication). We disagree.
In a series of cases we held that the IME physician’s opinion concerning the “cause” of the claimant’s permanent medical impairment is an inherent part of the physician’s rating, and thus, is subject to the “clear and convincing evidence” standard. Wyatt v. Interstate Distributor Co., W.C. No. 4-231-549, May 6, 1996; Chavez v. J.C. Penny, W.C. No. 4-153-815, March 22, 1995; Bastidas v. Denver Public Schools, W.C. No. 4-163-315, November 26, 1994; Pinkstaff v. Ranch Way Inc., W.C. No. 4-143-113, November 3, 1994, aff’d, Ranch-Way, Inc. v. Pinkstaff, Colo. App. No. 94CA1991, March 23, 1995 (not selected for publication); Navas v. Tower Corporation, W.C. No. 4-113-479, July 17, 1994.
In reaching this conclusion, we noted that §8-42-107(8)(c) expressly defers the determination of medical impairment to the treating or IME physician, and requires the physician to apply the AMA Guides in rating the claimant’s impairment. See Mountain City Meat Co. v. Oqueda, 919 P.2d 246
(Colo 1996); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Chapter 2.2, page 6 of the AMA Guides expressly contemplates the rating physician’s determination of the cause or causes of the claimant’s overall medical impairment in rating the impairment from an industrial injury. The Supreme Court made a similar observation in Askew v. Industrial Claim Appeals Office, 927 P.2d 1333, 1337 (Colo. 1996), where it concluded that the rating physician’s determination of the claimant’s medical impairment as a percentage of the whole person “necessarily includes any decision to apportion such impairment.”
Further, we concluded that it would be inconsistent with the legislative purpose of reducing litigation of permanent partial disability if § 8-42-107(8) were construed to render the IME physician’s numerical rating of the claimant’s impairment binding unless overcome by clear and convincing evidence, but allowing the parties to litigate the “cause” of the impairment under a preponderance of evidence standard. See § 8-40-102(1), C.R.S. (1996 Cum. Supp.); Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). Therefore, we concluded that the IME physician’s opinion of the causal relationship between the industrial injury and a claimant’s permanent medical impairment is binding unless overcome by clear and convincing evidence.
The respondents’ arguments do not persuade us to depart from our prior conclusions. Moreover, our conclusion is not inconsistent with the holding in Mendonca v. Industrial Claim Appeals Office, supra. In Mendonca the claimant sought a change of physician to Dr. Michelli, and an order awarding medical benefits after MMI to obtain psychological treatment recommended by Dr. Michelli. The Court of Appeals noted that no psychological injury was asserted prior to, or addressed at the time the claimant was determined to be at MMI with permanent medical impairment to the upper extremity. Under these circumstances, the court held that insofar as the claimant sough Grover medical benefits for a psychological injury, the claimant bore the burden to prove by a “preponderance of the evidence” that he suffered a compensable psychological injury which required future treatment.
However, Mendonca does not support the respondents’ assertion that the “preponderance of the evidence” standard applies to whether the IME physician correctly determined the compensable nature of the claimant’s permanent medical impairment. To the contrary, the Mendonca court held that the IME physician’s determinations that the claimant reached MMI and sustained 26 percent permanent medical impairment of the right upper extremity were binding unless overcome by “clear and convincing evidence.”
Here, unlike Mendonca, the claimant was not seeking a change of physician or an award of Grover medical benefits for a compensable component of the industrial injury which the IME physician did not address. Rather, the claimant was seeking permanent partial disability benefits in accordance the IME physician’s determination that the compensable components of the injury included impairment of the shoulders and neck. Therefore Mendonca is inapposite.
Moreover, to the extent that the respondents may be understood as arguing that the claimant was required to prove that he sustained an injury or injuries not enumerated on the schedule of disabilities, we conclude that this argument was not raised before the ALJ. Rather, the sole issue for the ALJ’s adjudication was whether Dr. Parry’s whole person impairment rating was overcome by clear and convincing evidence, and more specifically, whether Dr. Parry erred in including a 4 percent whole person impairment rating for the claimant’s cervical impairment. See Tr. pp 3-4. Therefore, we will not consider whether the ALJ erred in finding that the claimant is entitled to compensation based upon a non-scheduled injury. See Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994) (an issue may not be raised for the first time on appeal).
The respondents also contend that the ALJ’s order erroneously fails to indicate that their liability for medical impairment benefits is subject to the limitations provided in § 8-42-107.5, C.R.S. (1996 Cum. Supp.). However, paragraph 25 of the ALJ’s order expressly states that the respondents’ payment of permanent partial disability benefits is “subject to section 8-42-107.5.” Therefore, the respondents have failed to establish grounds which afford us a basis to set aside the award.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 9, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacatethis Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, CO 80203, by filing a petition for reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date this Order is mailed, pursuant tosection 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed August 11, 1997 to the following parties:
Gregory E. Clem, 6445 W. 76th Pl., Arvada, CO 80003
Qual-Med, Inc., 720 North Main St., No. 320, Pueblo, CO 81003
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)
William J. Macdonald, Esq., 1890 Gaylord St., Denver, CO 80206 (For the Claimant)
Timothy Nemechek, Esq., 999 18th St., No. 3100, Denver, CO 80202 (For the Respondents)
By: _______________________________