W.C. No. 4-534-659.Industrial Claim Appeals Office.
July 11, 2005.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which awarded permanent total disability (PTD) benefits, medical benefits after maximum medical improvement (MMI), and temporary total disability (TTD) benefits. The respondents contend the ALJ erred because he did not require the claimant to overcome the Division-sponsored independent medical examination (DIME) physician’s finding regarding causation by clear and convincing evidence. The respondents further contend the ALJ erroneously applied the doctrine of collateral estoppel to prevent them from relitigating the issue of causation. We affirm.
The case has a complex procedural history which is relevant to the issues decided on appeal. On February 20, 2002, the claimant experienced an accident at work when he was struck on the chest by a box spring. The claimant had continuing chest pain and coughing, and was diagnosed with sclerosing mediastinitis (SM), a serious lung disease. The claimant alleged that the February 20 accident aggravated or accelerated the SM and caused the need for removal of his right lung in May 2002.
In December 2002 the matter proceeded to hearing on the issues of “compensability,” medical benefits and TTD benefits. The parties presented conflicting expert medical opinion concerning whether or not the SM was aggravated or accelerated by the industrial accident so as to cause the need for surgery and medical treatment. In an order dated May 7, 2003, the ALJ credited the claimant’s medical experts, Dr. Krebs, Dr. Coburn and Dr. Sawyer, and discredited the respondents’ expert, Dr. Repsher. Consequently the ALJ found the claimant proved by a preponderance of the evidence that the industrial accident aggravated the pre-existing SM and caused the need for the lung surgery.
The respondents appealed the ALJ’s order and we affirmed in a Final Order dated October 6, 2003. We held that substantial evidence supported the ALJ’s finding that the claimant proved that the aggravation of SM and need for treatment were proximately caused by an injury arising out of and in the course of the employment. The respondents appealed our order to the Court of Appeals. The court affirmed our order in an opinion dated September 9, 2004. The court noted that if a preexisting condition is aggravated or accelerated by “work-related activity” the subsequent injury is compensable. Further, the court agreed that substantial evidence supported the ALJ’s finding of a causal relationship between the February 20 incident and the aggravation of the claimant’s lung condition.
On August 3, 2004, while the appeal from the ALJ’s May 7 order was pending, Dr. Krebs placed the claimant at MMI with a 75 percent whole person impairment rating. The respondents sought a DIME on the issues of MMI and impairment. In a report dated December 5, 2003, the DIME physician, agreeing with Dr. Repsher, opined the claimant’s SM is unrelated to the February 2002 box spring incident. Thus, the DIME physician opined the claimant reached MMI on March 25, 2002, when symptoms from a minor chest wall contusion resolved. The DIME further opined the claimant has no medical impairment causally-related to the February 20 accident. Based on the DIME report the respondents filed a Final Admission of Liability (FAL) in February 2004, admitting for a “chest wall contusion,” several days of TTD in March 2002, and $7,700 in medical benefits.
The claimant applied for a hearing on the issues of TTD from March 11, 2002 through August 4, 2003, PTD, permanent partial disability (PPD) benefits, and medical benefits after MMI. The respondents contended the claimant was “trying to overcome the DIME by clear and convincing evidence” and that the respondents intended to “challenge causation pursuant to the Sunny Acres Villa case.” The claimant filed a motion for partial summary arguing that the cause of the claimant’s SM was adjudicated by the May 7 order and the respondents should be precluded from relitigating the issue of “compensability.”
The ALJ granted the motion for partial summary judgment in an order dated June 25, 2004. The ALJ cited Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000), for the propositions that “compensability” is an issue to be determined by the ALJ in the first instance, and the ALJ need not “reconsider” the issue based on the DIME physician’s opinion concerning causation. Further, the ALJ stated that the doctrines of law of the case and collateral estoppel (issue preclusion) barred reconsideration of the causation issue. The ALJ distinguishe Sunny Acres Villa, Inc. v. Cooper, 25 P.3d 44 (Colo. 2001), finding that in this case the respondents had adequate incentive to vigorously litigate the causation issue at the December 2002 hearing, and did so by presenting expert testimony and conducting extensive cross-examination of the claimant’s medical experts. Moreover, the ALJ stated the “stakes were high” at the 2002 hearing considering the significant medical expenses at issue as well as “significant exposure” on the issues of TTD and PPD. Consequently, the ALJ concluded that the respondents were “barred” from relitigating the issue of compensability at the 2004 hearing.
On November 18, 2004, the case again proceeded to hearing on the issues of PTD, PPD, medical benefits after MMI and whether the claimant “proved by clear and convincing evidence that the Division Independent Medical Examination conclusions regarding maximum medical improvement and permanent medical impairment were incorrect.” In an order dated January 5, 2005, the ALJ found the claimant proved by “clear and convincing evidence” that the DIME physician was incorrect in placing the claimant at MMI on March 25, 2002. The ALJ credited the opinion of Dr. Krebs that the claimant reached MMI on August 4, 2003, and found the DIME physician “inaccurately determined MMI based on a chest contusion alone, without regard to the compensable sclerosing mediastinitis.” (Conclusion of Law 2). The ALJ further stated that, based on a consideration of “all the evidence,” the opinion of the DIME physician concerning the cause of the claimant’s SM was neither persuasive nor credible. The ALJ then awarded PTD benefits, TTD benefits from April 19, 2002, through August 18, 2003, and continuing medical benefits after MMI.
I.
The respondents first contend the ALJ erred because he did not require the claimant to overcome by clear and convincing evidence the DIME physician’s finding that the SM was not caused or aggravated by the industrial accident of February 20. The respondents, citing such cases a Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002), and Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590
(Colo.App. 1998), argue that determination of the cause of SM was inherent in the DIME physician’s MMI determination and must be given presumtive weight. We are not persuaded.
Initially, we note that in the January 5 order the ALJ stated that the DIME physician’s findings that the SM was not caused or aggravated by the industrial accident and the claimant reached MMI on March 25, 2002, were overcome by clear and convincing evidence. (Conclusion of Law 2). However, the respondents argue this conclusion must be viewed in the context of the order for partial summary judgment to mean that the ALJ concluded he was not required to give any special weight to the DIME physician’s finding regarding the cause of the SM. (Respondents’ Brief at P. 6). We assume, arguendo, that the respondents’ interpretation of the ALJ’s orders is correct.
It is true, as the respondents argue, that the determinations of MMI and medical impairment require a physician to determine the cause or causes of the claimant’s condition. Consequently, when the issue involves MMI or impairment, the DIME physician’s findings concerning causation must be overcome by clear and convincing evidence. Cordova v. Industrial Claim Appeals Office, supra.
However, it is also true that the DIME physician’s findings on the issue of causation are entitled to presumptive weight only when the statute so requires. Cordova v. Industrial Claim Appeals Office, supra.
Hence, in Faulkner v. Industrial Claim Appeals Office, supra, the court held that a DIME physician’s opinion that the claimant suffered from irritant vocal cord dysfunction caused by exposure to carpet fumes in the workplace was not entitled to presumptive weight where the respondents contended the symptoms were caused by a non-compensable psychological condition. The Faulkner court observed that § 8-41-301(1)(c), C.R.S. 2004, requires the claimant to prove by a preponderance of the evidence that he/she sustained an injury “proximately caused by an injury arising out of and in the course of the employee’s employment.” (Emphasis added). 12 P.3d at 846. Hence, the court held that proof of causation is a “threshold requirement” for determination by the ALJ, and the DIME physician’s opinion is not entitled to presumptive weight on the this threshold issue. The court distinguished Qual-Med on grounds that there the issue concerned the correctness of a DIME physician’s rating of impairment, not “whether the claimant sustained a compensable injury in the first instance.” 12 P.3d at 846; see also, Torrence v. University Hospital, W.C. No. 4-497-522 (February 19, 2003) (respondents permitted to withdraw FAL by proving claimant gave false information concerning alleged injury despite DIME physician’s opinion that the claimant’s right shoulder symptoms were caused by the alleged injury); Alvarado v. Corestaff Services, Inc., W.C. No. 4-376-028 (August 19, 2002) (claimant not required to undergo DIME for ALJ to find that no industrial injury occurred as alleged by claimant).
As demonstrated by the ALJ’s order of May 7, 2003, and the subsequent appellate decisions, at the 2002 hearing the claimant alleged that he sustained an industrial injury consisting of an aggravation of preexisting SM, and that this aggravation caused the need for surgery to remove the right lung. The ALJ credited the claimant’s evidence and found the claimant proved the requisite causal connection to his employment. Proof of a causal relationship between the claimant’s duties of employment (accident involving box springs) and the aggravation of SM was a “threshold issue” concerning which the claimant had the burden of proof under § 8-41-301(1)(c). Faulkner v. Industrial Claim Appeals Office, supra.
A DIME was not a prerequisite to the ALJ’s resolution of this threshold issue. Further the statute does not provide that if a DIME physician’s MMI and impairment opinions touch on a threshold causation issue previously decided by an ALJ that the ALJ’s prior causation determination must be revisited under the clear and convincing standard of proof. Indeed, such an interpretation would be contrary to one of the main purposes of the DIME process, which is to reduce litigation on the issues of MMI and impairment. Colorado AFL-CIO v. Donlon, 914 P.2d 396, 402
(Colo.App. 1995). We may not read such a requirement into the DIME process, and decline to do so. Cf. City and County of Denver v. Industrial Claim Appeals Office, 58 P.3d 1162 (Colo.App. 2002) (on change of condition reopening a DIME physician’s opinion that no compensable injury occurred was “legally unfounded” because neither party can raise “original issues” such as work-connection and the occurrence of a compensable accident).
II.
The respondents next contend the ALJ erred in denying them an opportunity to relitigate the cause of the claimant’s SM. The respondents rely on Sunny Acres Villa, Inc. v. Cooper, supra, to contest the ALJ’s conclusion that they had an adequate incentive to contest the cause of SM at the December 2002 hearing. We perceive no reversible error.
Although the ALJ’s order for partial summary judgment purports to “bar” the respondents from litigating the “compensability” of SM at the November 18 hearing, the ALJ’s January 2005 order reflects that the AL did consider the issue of whether the SM was causally-related to the industrial accident when evaluating the DIME physician’s finding that the claimant reached MMI on March 25, 2002.
At the respondents’ request the ALJ admitted as evidence the DIME physician’s report and the report of Dr. Cullinan. The respondents presented this evidence at a time when the issue of PTD was looming if the ALJ were to find that the DIME physician was incorrect in placing the claimant at MMI on March 25. Both reports referred to and agreed with Dr. Repsher’s opinion that the SM is not related to the industrial injury. However, the ALJ found after consideration of “all the evidence” that these reports “were neither persuasive nor credible” on the issue of causation. (Finding of Fact 7). Instead, the ALJ found that the opinion of Dr. Krebs to be “overwhelming, substantial and credible evidence” that the SM was aggravated by the industrial accident. (Conclusion of Law 2).
It follows that the ALJ effectively permitted the respondents to “relitigate” the causation question under the rubric of determining whether the DIME was overcome on the issue of MMI, and the respondents took advantage of this opportunity to present new medical causation evidence. However, the ALJ found the respondents’ new evidence was unpersuasive and explicitly determined that the claimant’s experts presented highly credible evidence on the causation question. Thus, even if Sunny Acres Villa could be interpreted as requiring a second “compensability” hearing, it would be pointless to remand for such a hearing in this case. The ALJ has already rejected the respondents’ causation evidence; consequently no substantial right of the respondents has been prejudiced by the course of proceedings. Section 8-43-310, C.R.S. 2004. In light of this determination we need not reach the question of whether the respondents had adequate incentive to litigate the issue of causation at the 2002 hearing for purposes of applying collateral estoppel.
It necessarily follows from this order that we reject the respondents’ argument that the ALJ erred in awarding TTD benefits from April 19, 2002, through August 4, 2003.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 5, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Kathy E. Dean
Billy Heibner, Montrose, CO, Montrose Transfer Storage, Montrose, CO, Michelle Probert, Vanliner Insurance, St. Louis, MO, Marti Meyers, Crawford Company, Fort Collins, CO, David B. Mueller, Esq., Grand Junction, CO, (For Claimant).
Kathleen Mowry Fairbanks, Esq. and Michael Todd Calvert, Esq., Denver, CO, (For Respondents).