W.C. Nos. 4-253-807, 4-265-349Industrial Claim Appeals Office.
October 5, 1999
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which concluded the “issue of permanent partial disability is not ripe” because the claimant failed to procure a Division-sponsored independent medical examination (IME). We affirm.
The claimant sustained a compensable back injury on February 7, 1995. On April 12, 1996, the claimant’s authorized treating physician issued a report in which he opined the claimant has an overall 27 percent whole person impairment attributable to specific disorders of the cervical, thoracic, and lumbar spine, as well as lost range of motion in the same area. However, the physician also stated that “half of her current problem is due to the injury and half of the current problem is due to other factors.” Consequently, the physician opined the claimant has a 14 percent impairment of the whole person.
The claimant applied for a hearing listing one of the issues as permanent partial disability benefits, but she did not procure a Division-sponsored IME on the issue of medical impairment. At the hearing, claimant’s counsel advised the ALJ the claimant was seeking the treating physician’s 27 percent rating without the “apportionment.” Counsel explained that he was disputing whether the claimant suffered from any “prior condition, period.” Counsel also stated that “if there was a prior condition,” he intended to argue “it wasn’t disabling, since we don’t even know what it is.” (Tr. p. 9)
However, the ALJ declined to reach the issue of permanent partial disability benefits, concluding that the issue was not ripe because the claimant failed to obtain a Division-sponsored IME in accordance with § 8-42-107(8)(c), C.R.S. 1999. The issue of permanent partial disability benefits was reserved for future determination.
On review, the claimant contends she is entitled to a hearing to determine whether there was any pre-existing vocational impairment (to the back) resulting from her “pre-existing condition.” According to the claimant, her only pre-existing condition was hepatitis C, and that disease could not have been the cause of any back impairment. The claimant also asserts she is not disputing the treating physician’s impairment rating, and the only issue presented for determination is whether the pre-existing condition was disabling. The claimant reasons that a Division-sponsored IME is not necessary to determine the existence of vocational disability. We perceive no error.
Initially, we consider whether the ALJ’s order is final and reviewable for purposes of § 8-43-301(2), C.R.S. 1999. Arguably, the ALJ’s order does not award or deny any permanent partial disability benefits. However, the effect of the order is to preclude the claimant from obtaining an order on the merits of her claim for permanent disability benefits unless she undergoes an IME which, if she is correct, is not required by law. Therefore, we consider the order to be a denial of benefits for purposes of §8-43-301(2). Cf. Carreon v. Monfort, Inc., W.C. No. 4-140-621 (December 19, 1994).
Section 8-42-107(8)(c) provides that if a party disputes the “authorized treating physician’s finding of medical impairment” the parties must select an IME physician. The “finding” of the IME physician concerning the claimant’s medical impairment becomes binding unless overcome by clear and convincing evidence. Further, the ALJ may not conduct a hearing on the matter until the IME physician’s finding has been filed with the Division.
The question of whether a particular impairment was caused by the industrial injury is a matter of diagnosis which requires the rating physician to identify and evaluate all losses and restrictions which result from the industrial injury. Thus, the issue of causation is inherent in the rating process encompassed by the IME process. Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998). It follows that where the treating physician determines that a particular impairment is, or is not, related to the industrial injury, the party disputing that determination is required to procure an IME to contest the treating physician’s determination. Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998).
The claimant’s argument notwithstanding, she apparently does “dispute” the treating physician’s 14 percent whole person impairment rating. The claimant asserts in her brief, as she did at the hearing, that she had no pre-existing condition (including Hepatitis C) which could have caused any of the 27 percent whole person spinal impairment assessed by the treating physician. Implicit in this allegation is the factual contention that the treating physician’s diagnosis was incorrect, and that all of the impairment is attributable to the industrial injury. As the ALJ ruled, he lacks jurisdiction to determine this issue until the claimant procures a Division-sponsored IME on the issue of medical impairment. Egan v. Industrial Claim Appeals Office, supra.
Further, we do not agree with the claimant that she was entitled to a separate hearing on the issue of whether or not any pre-existing impairment was independently disabling. It may be that, if the claimant conceded there was any pre-existing impairment, the issue of pre-existing disability attributable to the imparement could be determined without benefit of an IME. However, the claimant has not made any such concession, and the ALJ correctly ruled that consideration of pre-existing disability is not ripe until such time as it is determined whether there was any pre-existing impairment.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 6, 1998, is affirmed insofar as it determined that the issue of permanent partial disability is not ripe until such time as the claimant obtains a Division-sponsored IME.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain ____________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed October 5, 1999 the following parties:
Tammy Manzanares, 2029 S. Corona, Colorado Springs, CO 80906
Quality Linen and Supply, 802 S. Wahsatch Ave., Colorado Springs, CO 80903-4115
Liberty Mutual Insurance Company, Attn: Shannon Wrage, 13111 E. Briarwood Ave., #100, Englewood, CO 80112
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
BY: A. Pendroy