W.C. No. 4-302-830Industrial Claim Appeals Office.
July 2, 1998
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Wheelock (ALJ), which denied his claim for temporary disability benefits and medical benefits. The claimant asserts the ALJ erred in determining that the independent medical examiner’s (IME) opinion that he was not maximum medical improvement (MMI) was overcome by clear and convincing evidence. We conclude the claimant failed to preserve this argument before the ALJ, and therefore, affirm.
The claimant sustained a compensable injury to his head, neck, and shoulder when he was struck by a piece of plywood on April 19, 1996. On September 6, 1996, the treating physician placed the claimant at MMI and assigned him an impairment rating of seven percent of the whole person based on injury to the cervical region. The treating physician also found the claimant was suffering from bilateral carpal tunnel syndrome (CTS), and assessed a fifteen percent impairment rating for the right upper extremity and a six percent impairment rating for the left upper extremity.
The respondents contended that the CTS was not caused by the April 1996 injury. Consequently, they admitted liability for medical impairment benefits based on the seven percent cervical rating, but not the extremity ratings. In response, the claimant requested a Division IME on the issues of MMI and medical impairment.
The IME physician issued his report on December 5, 1996, and opined the claimant is not at MMI. Specifically, the IME physician stated the claimant suffers from bilateral CTS caused by the April 1996 injury, and needs physical therapy “to work on cervical postures,” a home exercise program, and an occupational therapy evaluation for wrist stabilization. The IME physician also stated there is no need for “surgical intervention” to treat the claimant’s cervical spine.
Following the IME report, the respondents filed an application for hearing listing the issues as MMI, apportionment, and whether the CTS is “related” to the industrial injury. The claimant added the issues of further temporary disability benefits and medical benefits. At the commencement of the hearing, the ALJ stated her understanding that the issue was “relatedness of the carpal tunnel to the other industrial injury.” Both counsel agreed with the ALJ’s statement of the issue. (Tr. p. 3).
In the order of July 8, 1997, the ALJ concluded the claimant reached MMI on September 9, 1996, as found by the treating physician. The ALJ stated that clear and convincing evidence proves the IME physician was incorrect in finding that the CTS was caused by the April 1996 injury. In so doing the ALJ relied on medical evidence indicating that the claimant suffered from CTS after a 1989 injury, and that the IME physician was unaware of this evidence prior to issuing his report.
On review, the claimant contends he is entitled to additional temporary total disability benefits regardless of whether the CTS is causally connected to the April 1996 industrial injury. In support, the claimant argues the IME physician’s report proves he needs additional treatment for the cervical condition whether or not the CTS is related to the industrial injury, and the ALJ did not consider this evidence. However, we conclude the claimant waived this argument.
At hearing an ALJ frequently clarifies and narrows the issues after consulting with the attorneys. Once the issues are clarified, counsel for each side is entitled to rely on the ALJ’s statement of the issues. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). Further, an ALJ need not address matters raised in a petition to review where a party represents to the ALJ that the issue is uncontested, then awaits the outcome of the ALJ’s order before raising the matter. See Broadmoor Hotel v. Industrial Claim Appeals Office, 939 P.2d 460
(Colo.App. 1996).
Here, at the commencement of the hearing, the ALJ sought to clarify the issues for determination. The record supports the ALJ’s understanding that the claimant’s right to additional temporary and medical benefits turned on whether the CTS is causally connected to the industrial injury, and nothing else. When the ALJ addressed the issues at the hearing, counsel for the claimant did not assert that the IME physician’s report justifies benefits for the cervical condition regardless of whether the claimant prevailed on the CTS causation issue. To the contrary, claimant’s counsel agreed with respondents’ counsel that the issue was the cause of the CTS.
Under these circumstances, we conclude the claimant may not now raise the need for additional cervical treatment in defense of the IME physician’s report. The ALJ was never requested to address this question, and the claimant may not raise it for the first time on appeal. Kuziel v. Pet Fair, Inc., 948 P.2d 103
(Colo.App. 1997).
IT IS THEREFORE ORDERED that the ALJ’s order dated July 8, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________________ David Cain
__________________________________ Kathy E. Dean
NOTICE This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C. R. S. 1997.
Copies of this decision were mailed July 2, 1998 to the following parties:
Mallon E. Dennis, Jr., 4903 Eldon Dr., Colorado Springs, CO 80916
Hughes-Smith, Inc., P. O. Box 7450, Colorado Springs, CO 80933-7450
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority — Interagency Mail
Gordon J. Heuser, Esq., 625 N. Cascade Ave., #300, Colorado Springs, CO 80903 (For Claimant)
By: ______________________