W.C. Nos. 4-389-863, 4-390-804Industrial Claim Appeals Office.
December 22, 1999
FINAL ORDER
The claimant seeks review of two orders of Administrative Law Judge Erickson (ALJ) dated March 26, 1999. The claimant contends the ALJ erred in limiting her to an award of scheduled disability benefits without considering the results of a Division-sponsored independent medical examination (IME) on the issue of permanent medical impairment. We disagree, and therefore, affirm.
The claimant suffered an admitted industrial injury on December 11, 1996, which was originally diagnosed as a cervical strain. On July 9, 1998, Dr. Pitzer placed the claimant at maximum medical improvement (MMI) with 5 percent impairment of each upper extremity due to diffuse shoulder girdle myofacial pain. Dr. Pitzer opined the claimant suffered no permanent impairment to the cervical spine and therefore, he did not include any rating for whole person impairment.
The claimant applied for a hearing on whether she sustained a left shoulder injury during the industrial accident. On September 25, 1998, the respondents filed a Response to the Application for Hearing which endorsed the issue of permanent disability. Thereafter, the claimant requested a Division-sponsored IME to dispute Dr. Pitzer’s extremity rating, and moved to strike the issue of permanent disability on grounds that the Division-sponsored IME could not be completed by the hearing that had been scheduled for December 1. The claimant also asserted that because she availed herself of the right to an IME, § 8-42-107(8)(c), C.R.S. 1999, precluded the ALJ from hearing the issue of permanent disability until the IME physician’s report was filed. In an order dated November 19, 1998, ALJ Stuber denied the claimant’s motion.
At the commencement of the December 1 hearing, the claimant renewed her motion to vacate the issue of permanent disability. The ALJ determined that § 8-42-107(8)(c) only applies to non-scheduled injuries, and denied the motion. Furthermore, based upon the evidence presented at hearings held on December 1 and December 22, 1998, the ALJ determined the claimant failed to prove she sustained a non-scheduled injury. Consequently, in a Summary Order dated January 29, 1999, the ALJ awarded scheduled disability benefits consistent with Dr. Pitzer’s extremity rating. The claimant requested specific findings.
On March 11, 1999, the claimant filed a motion to introduce “newly discovered evidence,” which was the report of the Division-sponsored IME conducted by Dr. Douthit on December 9, 1998. The ALJ agreed with the claimant’s assertion that the IME report is “newly discovered evidence,” which could not have been produced at the December hearings through the exercise of due diligence. However, the ALJ determined that the IME report was neither “outcome determinative” nor a statutory prerequisite to the determination of whether the claimant is limited to a scheduled disability award. Further, the ALJ determined that the claimant was given an opportunity at the hearings to present persuasive evidence of a non-scheduled injury. Therefore, in separate orders dated March 26, 1999, the ALJ denied the claimant’s motion to reopen the evidence and entered specific findings of fact in support of the scheduled disability award.
I.
Section 8-42-107(8)(c) provides that the authorized treating physician shall determine the claimant’s medical impairment rating. That statute further provides that if either party disputes the rating, the claimant shall undergo an IME and a “hearing on this matter shall not take place” until the IME physician’s report has been filed. The claimant contends that regardless of whether the attending physician has found a whole person impairment, claimants are entitled to a Division-sponsored IME under the provisions of § 8-42-107(8)(c). The claimant further argues that because she requested an IME, the ALJ erred in adjudicating her entitlement to whole person impairment benefits prior to receipt of the IME physician’s report. We disagree.
The claimant’s arguments notwithstanding, the legislature created two separate procedural paths for the determination of permanent medical impairment. See Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996). Section 8-42-107(1)(a), C.R.S. 1999, provides that when the claimant suffers an injury or injuries enumerated on the schedule set forth in § 8-42-107(2), the employee’s permanent partial disability award shall be limited to the compensation set forth in the schedule. Section 8-42-107(1)(b), C.R.S. 1999, states that when the claimant suffers an injury or injuries not on the schedule, the claimant shall be entitled to the whole person medical impairment benefits specified in § 8-42-107(8).
As expressly noted by the ALJ, the first sentence of §8-42-107(8) states that it applies to the determination of permanent medical impairment for injuries “not set forth in the schedule.” Thus, the courts have held that the IME procedures in § 8-42-107(8)(c) only apply to non-scheduled injuries. Mountain City Meat Co, v. Industrial Claim Appeals Office, 904 P.2d 1333
(Colo.App. 1995), aff’d, Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo 1996); Egan v. Industrial Claim Appeals Office, 971 P.2d 665, 666 (Colo.App. 1998). We do not dispute that the claimant may request a Division-sponsored IME. See § 8-43-502(2), C.R.S. 1999. However, the IME report is a prerequisite to a hearing on permanent disability only if the claimant has suffered a non-scheduled injury.
The claimant has sustained a non-scheduled injury where she has functional impairment not listed on the schedule in §8-42-107(2). Walker v. Jim Fouco Motor Company, 942 P.2d 1390
(Colo.App. 1997); Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996). The resolution of this issue is a question of fact for the ALJ. See Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996). Moreover, the situs of the claimant’s functional impairment is distinct and separate from the treating physician’s rating of the claimant’s physical impairment, and the court has held that the physician’s medical impairment rating may be considered, but is not dispositive of the whether the claimant has suffered a scheduled disability. Strauch v. PSL Swedish Healthcare System, supra.
Consequently, insofar as the respondents sought a determination that the claimant is limited to scheduled disability benefits, the ALJ was free to resolve that factual issue without the Division-sponsored IME report.
Furthermore, the issue of permanent disability was properly endorsed two months before the December 1 hearing. Even though the claimant objected to proceeding without the IME report, she did not request a continuance. (December 1, 1998 Tr. p. 20). In fact, the claimant resisted the respondents’ request for a continuance. (December 22, 1998 Tr., pp. 3-10). Therefore, we reject the claimant’s argument that the ALJ’s refusal to strike the issue of permanent disability violated due process protections. See Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076, (Colo.App. 1990) (due process requires adequate notice of the issues to be heard and a reasonable opportunity to present evidence).
The claimant’s remaining further arguments have been considered and do not alter our conclusions.
II.
Dr. Douthit opined the claimant suffered a compensable cervical injury which resulted in 4 percent whole person impairment. Based on that opinion, the claimant contends that the ALJ erroneously determined the IME report was not “outcome determinative.” Consequently, the claimant argues the ALJ erred in refusing to reopen the evidence for consideration of the IME report. We perceive no reversible error.
The ALJ has discretion to reopen the record for the submission of additional evidence. IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). In making this determination, the ALJ may consider whether such evidence could have been previously discovered through due diligence; whether it pertains to a material issue; and whether it might be outcome determinative. Potomac Insurance Co. v. Industrial Commission, 744 P.2d 765 (Colo.App. 1987). Because the ALJ’s authority is discretionary, we may not interfere with the ALJ’s determination in the absence of an abuse of discretion Aspen Skiing Co. v. Peer, 804 P.2d 166 (Colo. 1991). The standard on review of an alleged abuse of discretion is whether the ALJ’s order exceeds the bounds of reason, as where it is not supported by the record or the applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
Because the ALJ was not required to accord Dr. Douthit’s opinions any special weight, Dr. Douthit’s report would only create a conflict in the medical evidence concerning the nature and extent of the claimant’s functional impairment. Therefore, we agree with the ALJ that Dr. Douthit’s cervical impairment rating was not necessarily “outcome determinative” of whether the claimant is limited to scheduled disability benefits.
Further, the record indicates that the IME examination was conducted on December 9, 1998, which was after the first hearing on the issue of permanent disability, but before the December 22 hearing. The claimant’s counsel alleged that the report was filed December 31, 1998 (see Motion for Acceptance of Newly Discovered Evidence, paragraph 2). However, the claimant did not move to reopen the evidence until almost 40 days after the ALJ issued the Summary Order denying the claimant’s request for whole person impairment benefits. Under these circumstances, we cannot say the ALJ’s decision not to reopen the evidence “exceeds the bounds of reason,” or otherwise constitutes an abuse of discretion.
IT IS THEREFORE ORDERED that the ALJ’s orders dated March 26, 1999, are 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. 1999.
Copies of this decision were mailed December 22, 1999 to the following parties:
Diane K. Delaney, 6978 W. Frost Pl., Littleton, CO 80128
Domino’s Pizza Inc., c/o Jeffrey C. Fleischner, Esq., 999 18th St., #3100, Denver, CO 80202
National Union Fire Insurance Co., RSKCo, Attn: Terry Thornburg, P.O. Box 5307, Denver, CO 80217-5307
Papa John’s Pizza, 5050 S. Federal, Englewood, CO 80110
Wausau Insurance, Attn: George Fairbanks, P.O. Box 419157, Kansas City, MO 64141
Greg S. Russi, Esq., 201 8th St., Glenwood Springs, CO 81601 (For Claimant)
Jeffrey C. Fleischner, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents Dominos Pizza, Inc. and National Union Fire Insurance Co.)
Harry A. King, Jr., Esq., 679 Grant St., Denver, CO 80203 (For Respondents Papa John’s Pizza and Wausau Insurance)
BY: A. Pendroy