W.C. Nos. 4-569-141; 4-593-975 4-594-580.Industrial Claim Appeals Office.
October 13, 2005.
FINAL ORDER
The claimant seeks review of an order dated May 12, 2005 by Administrative Law Judge Harr (ALJ) insofar as the ALJ determined issues of permanency were ripe in all three claims and denied the claimant’s request for a second Division-sponsored independent medical examination (DIME). We affirm.
The claimant fell injuring her right knee in an admitted work related accident on January 3, 2003 (W.C. No. 4-569-141). In May of 2003, claimant reported pain in her left knee and left foot (W.C. No. 4-593-975) from overuse of her left lower extremity while convalescing from the right knee injury. The claimant also reported left knee pain while working for employer on October 2, 2003 (W.C. No. 4-594-580). The respondent filed a Motion to Consolidate all three claims, which was granted.
After being placed at maximum medical improvement in W.C. No. 4-569-141, the claimant requested a DIME and listed the following body parts for the DIME physician to evaluate, “Right knee, right leg, both hips, and any other area deemed necessary by examiners”. The division appointed Dr. Fernandez as the DIME physician. Dr. Fernandez took a history from the claimant regarding both her left and right knee conditions and her left ankle conditions. The claimant told Dr. Fernandez that she attributed her left knee injury to overuse from compensating for her right knee injury. Dr. Fernandez determined the claimant’s right knee, left knee, and left ankle were causally related to her traumatic right knee injury and that the claimant suffered 18 percent of the lower extremity from all compensable components of the right knee injury.
The respondent filed a Final Admission of Liability (FAL) consistent with the scheduled disability rating of Dr. Fernandez. The claimant objected and requested a hearing to overcome the DIME.
Two hearings were subsequently held. At the first hearing, the claimant objected to going forward on the left lower extremity injuries because there had been no finding of compensability on these injuries and, therefore, argued the issue of permanency was not ripe. The respondent argued that it admitted liability for all three claims under the original W.C. No. 4-569-141. The hearing then commenced after the claimant made it clear on the record that she understood the respondent to be admitting compensability for the left lower extremity injuries. However, the hearing was continued to a later date to conclude testimony.
Between the first and second hearing, the claimant requested a DIME in W.C. No. 4-593-975. The respondent objected on the grounds that claimant had already had a DIME physician consider all of her complaints. The ALJ found the claimant’s request for a DIME under W.C. No. 4-593-975 should be denied because the claimant already had a DIME physician consider all of her complaints under the various claims.
The ALJ then proceeded with the hearing on issues involving the left lower extremity injury and specifically, compensation an altered gait, overuse, or overcompensation arising out of the January 3, 2003 traumatic injury to the right knee. The ALJ found that the claimant denied any new or intervening injury since January 3, 2002. Instead, the claimant reported to the employer that the symptoms in her left lower extremity were the result of overuse following the right knee injury, found the ALJ. The ALJ added that the claimant gave the same history to her medical providers, Dr. Lesnak and Dr. Fernandez. Further, the ALJ found that Dr. Fernandez evaluated the claimant’s permanent impairment based upon this history. Consequently, the ALJ found it was probable the claimant sustained one injury to the right knee — and that all her complaints and conditions under the other claims were consequences of the right knee injury.
Further, the ALJ determined Dr. Fernandez evaluated the claimant’s permanent medical impairment for all the compensable components of the right knee injury and that the claimant failed to overcome Dr. Fernandez’ medical impairment rating. Therefore, the ALJ approved the respondents’ FAL and denied the claimant’s request for another DIME.
On review the claimant contends the ALJ erred in determining that the issue of permanency as to the left lower extremity injuries was ripe for hearing and further erred in denying a DIME in the left lower extremity injury claim. The claimant argues the claims were consolidated for hearing but not merged for purposes of determining the claimant’s entitlement to benefits. Citing Javalera v. Monte Vista Head Start, Inc. W.C. Nos. 4-532-166 4-523-097 (July 19, 2004) the claimant argues instead, that she is entitled to receive a separate DIME in each claim, although the claims involve the same body parts. Under the circumstances of this case we find the authority cited by claimant inapposite.
The resolution of whether the left lower extremity conditions were the result of new injuries and not compensable consequences of the right knee injury was an issue of fact for the ALJ. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). We must uphold the ALJ’s factual determinations on the cause of the claimant’s conditions if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2005; Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001).
In Javalera the claimant suffered two separate industrial injuries to the same body parts. In contrast, the ALJ in the present case could and did reasonable infer that the additional injuries to the claimant’s left lower extremity were the natural and proximate result of the original right knee injury of January 3, 2003 and therefore, were compensable consequences of the right knee injury not separately compensable injuries. Owens v. Industrial Claim Appeals Office, 49 P.3d 1187 (Colo.App. 2002); University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637
(Colo.App. 20001); Garcia v. CFI Steel, W.C. No. 4-454-548
(May 14, 2004). The ALJ’s finding is supported by the testimony of Dr. Lesnak, the report of the DIME physician and other evidence in the record. Therefore, there is no basis for interfering with the orders which found the issue of permanency as to the left lower extremity injuries was ripe for hearing and denied the claimant’s request for a second DIME. See University Park Care Center, supra; Hastings v. Excel Electric
W.C. Nos. 4-471-818 and 4-480-418 (May 16, 2002).
Moreover, our conclusions are consistent with the Rules of Procedure XIV(L)(5), Code Colo. Reg. 1101-3 at 59-60, which contemplates only one DIME per case. Thus, we perceive no basis on which to interfere with the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 12, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
Maria Rios de Leyva, Fort Morgan, CO, Patty Malavasic, Workers’ Compensation Coordinator, Cargill Meat Solutions, C.S., Fort Morgan, CO, Margaret Johnson, Crawford Company, Fort Collins, CO, Britton Morrell, Esq., Greeley, CO, (For Claimant).
Tama L. Levine, Esq., Denver, CO, (For Respondent).