W.C. No. 4-157-935Industrial Claim Appeals Office.
April 1, 1996
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) insofar as the ALJ ordered them to pay permanent partial disability benefits based upon physical impairment of 15 percent of the whole person. We set aside the contested portion of the order, and remand.
The pertinent facts are undisputed. In 1992, the claimant suffered a compensable back injury. Dr. Lambden determined the claimant to be at maximum medical improvement (MMI) from the physical component of the injury on March 15, 1994, with impairment of 3 percent of the whole person. The psychological component of the injury was treated by Dr. Martinez who found the claimant to be at MMI on July 27, 1994. Because Dr. Martinez is not Level II accredited, he did not issue an impairment rating. The claimant was also examined by Dr. Harder who issued an impairment rating of 15 percent of the whole person due to a specific disorder and loss of movement in the lumbar spine.
Thereafter, the claimant requested a Division sponsored independent medical examination (IME) under the provisions of § 8-42-107(8)(c), C.R.S. (1995 Cum. Supp.). The Division selected psychiatrist, Dr. Krause, who reported that the claimant sustained psychiatric impairment of 15 percent of the whole person. Further, during his deposition, Dr. Krause stated that he agreed with Dr. Harder’s physical impairment rating which, when combined with the claimant’s psychiatric impairment rating, equals a total impairment of 28 percent of the whole person. (Krause depo. p. 15). However, Dr. Krause stated that he did not feel qualified to render an opinion concerning the claimant’s physical impairment because his Level II accreditation is limited to the area of “psychiatry.” (Krause depo. p. 13).
The ALJ determined that the respondents failed to overcome Dr. Krause’s IME rating of the claimant’s psychological impairment by “clear and convincing evidence” as required by § 8-42-107(8)(c), C.R.S. (1995 Cum. Supp.). The ALJ also found that Dr. Harder’s opinion was more persuasive than Dr. Lambden’s opinion. Consequently, the ALJ determined that the respondents also failed to overcome Dr. Krause’s physical impairment rating. As a result, the ALJ concluded that the respondents are liable for permanent partial disability benefits based upon 28 percent impairment of the whole person.
On review, the respondents do not dispute the ALJ’s award of benefits based upon psychiatric impairment of 15 percent of the whole person. Rather, the respondents’ sole dispute concerns the ALJ’s award of benefits based upon physical impairment of 15 percent of the whole person. The respondents argue that because Dr. Krause’s Level II accreditation is limited to psychiatric impairment, Dr. Krause’s opinion concerning the claimant’s physical impairment is not an IME impairment rating under §8-42-107(8)(c). Therefore, the respondents argue that the ALJ erred in requiring them to overcome Dr. Krause’s physical impairment rating by “clear and convincing evidence.” We agree.
Section 8-42-107(8)(c) provides that the authorized treating physician shall determine the claimant’s impairment and that the opinion of the authorized treating physician is binding unless the “disputing” party requests an IME. Colorado AFL-CIO v. Donlon, __ P.2d __ (Colo.App. Nos. 93CA1118, 93CA1392, June 15, 1995); cf. Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995). Section 8-42-107(8)(c) also states that “any physician who determines a medical impairment rating shall have received accreditation under the level II accreditation program pursuant to section 8-42-101.”
The Rules of Procedure set forth the accreditation program developed by the Director of the Division of Labor (Division) pursuant to the requirements of § 8-42-101(3.6), C.R.S. (1995 Cum. Supp.). See § 8-47-107
C.R.S. (1995 Cum. Supp.); Hargett v. Director, Division of Labor, 854 P.2d 1316 (Colo.App. 1993). Although not the equivalent of a statute, the Rules of Procedure have the force and effect of law. Corner stone Partners v. Industrial Claim Appeals Office, 830 P.2d 1148
(Colo.App. 1992). Therefore, we must defer to the Director’s interpretation of the statutory requirement for “Level II” accreditation. See Travelers Indemnity Co. v. Barnes, 190 Colo. 278 [191 Colo. 278], 552 P.2d 300 (1976); Ettelman v. State Board of Accounting, 849 P.2d 795 (Colo.App. 1992) (construction of a statute by the administrative agency charged with its enforcement should be given deference by the courts).
Rule XIV(K)(3)(c)(d), Code Colo. Reg. 1101-3 at 52 (1995) [amended 8/8/95 effective 9/30/95], establishes two types of Level II accreditation. The rule provides as follows:
“c. A physician who passes the complete examination administered by the Division will be fully accredited to render impairment ratings on any injury or illness.
d. A physician who passes specified portions of the examination administered by the Division will be accredited to render impairment rating on those sections of the AMA Guides. “
As we read Rule XIV(K)(3), it reflects the Director’s recognition of medical specialties and the fact that some providers may not seek to qualify to rate impairments beyond their respective specialties.
We also note § 8-43-502(2), C.R.S., (1995 Cum. Supp.), which provides that the party requesting the Division sponsored IME shall indicate the “professional specialty” of the physician to be selected by the Division. Thus, the Workers’ Compensation Act (Act) contemplates that the party requesting the IME shall have the right to determine the focus of the IME by designating the specialty of the IME physician to be selected by the Division.
Here, the claimant concedes that Dr. Krause is Level II accredited to rate only psychological impairment. (Tr. p. 8.). Consequently, as a matter of law, Dr. Krause could not render an IME rating concerning the claimant’s physical impairment. See Schrieber v. Brown Root, Inc., 888 P.2d 274, (Colo.App. 1993) (where undisputed facts lead to only on conclusion the issue is a question of law). Furthermore, we are not persuaded by the claimant’s contention that Dr. Krause could overcome his “limited” accreditation by adopting Dr. Harder’s “full” Level II accreditation. Such a rule would defeat the objective of the IME process, which is to obtain fair and unbiased rating. See Colorado AFL-CIO v. Donlon, supra.
Under these circumstances, we agree with the respondents that the record does not contain an IME rating of the claimant’s physical impairment within the meaning of § 8-42-107(8)(c). Therefore, the ALJ erred in requiring the respondents to overcome Dr. Krause’s physical impairment rating by “clear and convincing evidence.”
The respondents next contend that because Dr. Krause’s opinion does not qualify as an IME rating of the claimant’s physical impairment, the ALJ was bound by Dr. Lambden’s rating. We conclude that the ALJ’s findings are insufficient to permit appellate review of the respondents’ argument, and therefore, we remand for additional findings of fact and the entry of a new order.
As we have previously stated, an industrial injury may have multiple components each of which is treated by a different physician, and requires a different specialist to rate the impairment. Cf. Martinez v. Meadow Gold Dairy Products, W.C. No. 3-105-407, September 12, 1995; Raymond v. The Hair Corral, W.C. Nos. 4-129-600 4-229-574, February 1, 1996 (claimant is not MMI until the treating physician for each component has determined MMI). It follows that a party may seek an IME to dispute an impairment rating for one component of an injury without disputing the rating assigned to another component of the injury. Where an IME is only requested to dispute a portion of the impairment rating issued by the authorized treating physician or physicians, the parties are bound by the undisputed portion of the rating. Section 8-42-107(8)(c).
Here, the record is subject to conflicting inferences concerning whether the claimant requested an IME to dispute Dr. Lambden’s physical impairment rating, Dr. Lambden’s failure to rate the claimant’s psychological impairment, or both. Dr. Krause’s report does not indicate a request to rate any impairment except the claimant’s psychological impairment. However, under part 10 of the claimant’s January 6, 1995, “Request for an Independent Medical Examination,” the claimant listed “psychological” and “low back” as the parts of the body which required an impairment rating. See Rule XIV(L)(3)(a) at 55 (1995) (IME requests shall be made by filling in prescribed forms). Furthermore, although the claimant’s Request specifies that the Division select a “psychiatrist” to perform the IME, we know of no rule or statute which prohibits a psychiatrist from being “fully” accredited to rate all forms of impairment. Consequently, the matter must be remanded to the ALJ to resolve the conflicts and determine whether the claimant requested an IME to dispute Dr. Lambden’s physical impairment rating.
If, on remand, the ALJ determines that the claimant did not request an IME concerning “physical” impairment, then the ALJ is bound by Dr. Lambden’s physical impairment rating. However, if the ALJ determines that the claimant’s IME request contemplated a physical impairment rating, then the IME process has not been completed. In other words, the Division did not select a physician who was accredited to issue the type of impairment rating requested by claimant. Under such circumstances, the claimant must be afforded the IME she requested, and it is premature for the ALJ to determine medical impairment until the finding of the IME physician concerning the claimant’s physical impairment has been filed with the Division.
In remanding the matter, we are mindful of the claimant’s contention that she was forced to obtain an IME on the issue of psychological impairment because the respondents failed to comply with their obligation under Rule IV(N)(4)(d) at 7 (1995). See Kellogg v. Thomas P. Tritsch DDS., W.C. No. 4-187-392, May 23, 1995; Muniga v. Canam Industries, Inc., W.C. No. 4-154-268, December 16, 1994. However, neither the claimant nor the respondents have appealed the ALJ’s order concerning psychological impairment. Furthermore, the claimant’s argument was not raised before the ALJ, nor did the claimant request penalties for the respondents’ alleged failure to comply with Rule IV(N)(4)(d). Therefore, the claimant’s argument is not properly before us on appeal. See Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
IT IS THEREFORE ORDERED that the ALJ’s order dated August 23, 1995, is set aside insofar as it awards permanent disability benefits based upon physical impairment of 15 percent of the whole person, and the matter is remanded to the ALJ for additional proceedings and entry of a new order concerning the claimant’s permanent physical impairment consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Copies of this decision were mailed April 1, 1996 to the following parties:
Natalia L. Cruz, 11641 Pearl St., Northglenn, CO 80233
Eden Foundation, Inc., P.O. Box 1407, Alpharetta, GA 30239-1407
Colorado Compensation Insurance Authority, Attn: C. Boyd, Esq. (Interagency Mail)
Douglas A. Thomas, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701
(For the Respondents)
Elsa T. Martinez-Tenreiro, Esq., 700 Broadway, Ste. 1101, Denver, CO 80203
(For the Claimant)
BY: _______________________