W.C. No. 4-136-519Industrial Claim Appeals Office.
February 5, 1998
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Erickson (ALJ) which denied and dismissed her claim for permanent total disability benefits. We set aside the order and remand for entry of a new order.
On April 13, 1992, the claimant suffered injuries to her right hip, right hand, left knee, left foot and head during a slip and fall accident arising out of her employment. The parties stipulated that the claimant reached maximum medical improvement on March 4, 1996. Thereafter, the claimant applied for a hearing on permanent total disability.
In June 1996, Dr. Krause performed a Division-sponsored independent medical examination (IME) on the issue of permanent psychiatric impairment. Dr. Krause rated the claimant’s permanent psychological impairment as 60 percent of the whole person. However, Dr. Krause opined that none of the impairment is attributable to the industrial injury. Dr. Krause also opined that the industrial injury is not a significant factor in the claimant’s overall disability.
The ALJ determined that the claimant failed to sustain her burden to prove that the industrial injury is a significant factor in her claim for permanent total disability. In support, the ALJ found that the claimant failed to overcome “by clear and convincing evidence,” Dr. Krause’s opinion that she has no psychological impairment from the industrial injury. (Finding of Fact 3). Therefore, the ALJ denied the claim for permanent total disability benefits.
On appeal the claimant contends, inter alia, that the ALJ erroneously required her to overcome Dr. Krause’s opinions by “clear and convincing evidence.” We agree.
Claims for permanent partial disability benefits are governed by § 8-42-107, C.R.S. 1997. Section 8-42-107(8)(c), C.R.S. 1997, provides that the medical impairment rating of the IME physician is binding unless overcome by “clear and convincing evidence.”
In contrast, claims for permanent total disability benefits are governed by § 8-42-111, C.R.S. 1997. Under this statute, permanent total disability is defined as the inability to “earn any wages in the same or other employment.” Section 8-40-201(16.5)(a) C.R.S. 1997; Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997).
Because permanent total disability is based upon a claimant’s impaired access to the labor market, and not medical impairment, permanent total disability need not be proven by medical evidence See Baldwin Construction Inc., v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997). More importantly, neither §8-40-201(16.5), nor § 8-42-111 expressly affords any special weight to the medical impairment rating of the IME physician in determining the claimant’s impaired access to the labor market. Accordingly, we have previously concluded that the IME provisions in § 8-42-107(8)(c) do not apply to permanent total disability See Gonzales-Rivera v. Beacon Hill Investments, Inc., W.C. No. 4-124-250 (September 27, 1994); Ybarra v. Ray Shelton Construction Co., W.C. No. 4-116-741, (November 24, 1993). We adhere to our previous conclusions.
It follows that Dr. Krause’s opinions concerning the claimant’s permanent impairment are not entitled to any special weight on the issue of whether the industrial injury is a significant causative factor of the claimant’s permanent total disability. Therefore, the ALJ erroneously determined that Dr. Krause’s opinions were binding unless overcome by clear and convincing evidence.
Moreover, we cannot say that the ALJ’s error was harmless. In the absence of the ALJ’s erroneous determination concerning the claimant’s burden of proof, it is unclear how the ALJ would have resolved the question of whether the claimant proved by a preponderance of the evidence that the industrial injury to her head is a significant causal factor in her permanent disability. Therefore, the order must be set aside and the matter remanded to the ALJ for the entry of a new order which reflects his resolution of the pertinent issues under the applicable legal standard.
In view of our disposition it is premature to consider the claimant’s remaining arguments.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 22, 1997, is set aside and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ Kathy E. Dean ________________________________ Dona Halsey
Copies of this decision were mailed February 5, 1998 to the following parties:
Charla S. Cooper, Jean London, 1444 E. Girard Pl. #213, Englewood, CO 80110
Cindy Hogan, Sunny Acres Villa, Inc., 2501 E. 104th Ave., Denver, CO 80233
Debra Howie, Catholic Health Initiatives, Employee Injury Management, 1115 Elkton Dr., Ste. 400, Colorado Springs, CO 80907
Susan D. Phillips, Esq., 155 S. Madison, Ste. 330, Denver, CO 80209 (For the Claimant)
Susan Kurachi Reeves, Esq., 111 S. Tejon St., Ste. 700, Colorado Springs, CO 80903 (For the Respondent)
BY: ________________________________