W.C. Nos. 4-290-568, (4-332-014)Industrial Claim Appeals Office.
December 17, 1998
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Wheelock (ALJ) dated May 29, 1998. The respondents contend the ALJ erroneously awarded permanent partial disability benefits based upon 20 percent whole person impairment. The respondents also contend the ALJ erred in failing to deny the claimant’s request for penalties. We set aside the permanent disability award and remand that issue for entry of a new order. We dismiss the remainder of the petition to review without prejudice.
The claimant suffered work-related injuries on July 29, 1993, when he stepped on an unmarked open grate and fell into a hole. The injuries were treated by Dr. Beren, who diagnosed compression fractures at L4-L5. After placing the claimant at maximum medical improvement (MMI), Dr. Beren referred the claimant to Dr. Campbell for an impairment rating. Dr. Campbell rated the claimant’s permanent impairment as 10 percent of the whole person due to the compression fractures. The respondents eventually requested a Division-sponsored independent medical examination (IME), which was performed by Dr. Morgan. Dr. Morgan agreed with the determination of MMI and opined that the claimant sustained 15 percent whole person impairment due to the back injury. The respondents filed a Final Admission of Liability in W.C. No. 4-290-568, for the payment of permanent partial disability benefits in accordance with Dr. Morgan’s rating.
The claimant subsequently returned to Dr. Beren with complaints of pain in his left knee. An MRI revealed a torn medial meniscus. In a report dated October 24, 1996, Dr. Beren attributed the torn meniscus to the July 1993 injury, and referred the claimant to Dr. Taylor for surgery. Dr. Taylor agreed with Dr. Beren’s opinion on the cause of the left knee problems. After surgery, Dr. Beren referred the claimant to Dr. Boehle for an impairment rating. Dr. Boehle rated the claimant’s impairment as 20 percent of the whole person based on 15 percent impairment of the low back and 16 percent impairment of the lower extremity, which converts to 6 percent whole person impairment. Dr. Boehle also opined that the torn meniscus and need for surgery were due to the July 1993 injury, and that an incident in December 1995, where the claimant hyper-extended the left knee, was insufficient to cause the tear.
The respondents took the position that the left knee problems are the result of a new injury and filed a First Report of Injury which listed an injury to the claimant’s “lower extremities-knee” on December 23, 1995. The report was filed as W.C. No. 4-332-014. The respondents also filed a Final Admission of Liability in W.C. No. 4-332-104 for scheduled disability benefits based upon 16 percent impairment of the lower extremity. The claimant objected and applied for a hearing on permanent disability and penalties.
The ALJ found that the claimant sustained a left knee injury in July 1993 and that the 1993 injury was the proximate cause of the need for surgery. Crediting Dr. Boehle’s opinion, the ALJ further determined that the claimant’s total impairment from the 1993 injuries is 20 percent of the whole person. Therefore, the ALJ ordered the respondent to pay permanent partial disability benefits W.C. No. 4-290-568 based upon 20 percent whole person impairment.
I.
On review, the respondents contend the ALJ did not apply the correct legal standard in ordering them to pay permanent disability. We conclude that the ALJ’s findings of fact are insufficient to permit appellate review, and therefore, we remand the matter for additional findings and the entry of a new order. Section 8-43-301(8), C.R.S. 1998.
Section 8-42-107(8)(c), C.R.S. 1995 [amended in 1996], provides that the initial determination of permanent medical impairment shall be made by the authorized treating physician and if that determination is disputed, the claimant shall undergo an IME. The statute also provides that the IME physician’s impairment rating is binding unless overcome by “clear and convincing evidence.” Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). The IME physician’s determination of the cause of the claimant’s impairment is an inherent part of the rating. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998).
Here, the parties disputed Dr. Campbell’s impairment rating and requested a Division-sponsored IME. The IME physician, Dr. Morgan, did not include a rating for permanent impairment of the lower extremity, and thus, implicitly determined that the July 1993 injury is not the cause of the claimant’s lower extremity impairment. Dr. Morgan’s opinion is binding unless overcome by “clear and convincing evidence.”
The ALJ did not make any specific findings of fact concerning the standard of proof she applied. Under these circumstances, the ALJ’s findings of fact are insufficient to ascertain whether the ALJ applied the correct legal standard in finding that the claimant’s left knee impairment is the result of the 1993 injury.
On remand, the ALJ must determine whether the claimant presented “clear and convincing evidence” to overcome Dr. Morgan’s implicit determination that the left knee injury is not a compensable component of the July 1993 industrial accident. Based upon that determination the ALJ shall enter a new order on permanent disability.
In view of our disposition, we do not consider the respondent’s contention the ALJ failed to determine whether the claimant suffered a compensable aggravation of the July 1993 injury on December 23, 1995.
The ALJ also erred in finding that Dr. Boehle’s subsequent impairment rating triggered the IME provisions in §8-42-107(8)(c). Dr. Boehle’s rating is merely some evidence that Dr. Morgan incorrectly rated the claimant’s impairment by failing to include a rating for permanent impairment of the left knee. Therefore, the respondents were not required to obtain an IME to dispute Dr. Boehle’s rating, as the ALJ determined.
II.
Next, the respondent contends that the file maintained by the Division of Workers’ Compensation (Division) was not part of the record before the ALJ. Therefore, the respondent contends the ALJ erred insofar as she based her findings of fact on the Division’s file. We agree.
Where an administrative adjudication turns on issues of fact, due process requires that parties be given adequate notice of the both the legal and factual issues to be litigated. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). Moreover, parties are entitled to notice of the evidence to be considered. See Nesbit v. Industrial Commission, 43 Colo. App. 398, 607 P.2d 1024 (1979). It is for this reason that Rule of Procedure VIII(I)(1), 7 Code Colo. Reg. 1101-3 at 26, requires parties to exchange documentary evidence at least 20 days prior to a formal hearing. Furthermore, Rule VIII(A)(7) provides that the Division file is not made available to the ALJ unless requested by a party at least twenty days before the hearing.
The ALJ’s Findings of Fact, Conclusions of Law and Order state that the findings are based on a “complete review” of the Division’s file. However, the record does not contain a request that the Division file be made available to the ALJ. Furthermore, at the commencement of the hearing on May 14, 1998, the ALJ notified the parties that she did not have the Division file and did not know what was in that file. Therefore, the ALJ stated that she would have to rely on the parties to tell her what is in the file. (Tr. p. 6). Under these circumstances, the ALJ erred in considering the contends of the Division file, except as stipulated by the parties. On remand, the ALJ must enter new findings of fact without regard to the Division’s file.
III.
The respondent further contends that the ALJ erred in failing to deny the claimant’s request for the imposition of penalties. We conclude this portion of the ALJ’s order is not currently subject to review.
Under § 8-43-301(2), C.R.S. 1998, a party dissatisfied with an order “which requires any party to pay a penalty or benefits or denies a claimant a benefit or penalty,” may file a petition to review. Orders which do not require the payment of benefits or penalties, or deny the claimant benefits or penalties are interlocutory and not subject to review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Furthermore, an order may be partially final and partially not fina . Oxford Chemicals Inc., v. Richardson, 782 P.2d 843 (Colo.App. 1986).
The ALJ found that the respondent violated Rule IV(N)(5), 7 Code Colo. Reg. 1101-3 at 6.03, by failing to file an admission of liability for permanent disability benefits or request an IME within twenty days after receiving the medical impairment ratings of Dr. Campbell and Dr. Boehle. However, as the respondent concedes, the ALJ did not expressly grant or deny the request for penalties. Instead, the ALJ reserved all issues not determined by the order for future determination.
Because the ALJ’s order neither awards or denies the claimant a penalty, the ALJ’s order is not a “final order” concerning the issue of penalties. Therefore, the penalty issue is not currently subject to review. See Director of Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986).
IT IS THEREFORE ORDERED that the ALJ’s order dated May 29, 1998, is set aside insofar as it awards permanent partial disability benefits and the matter is remanded to the ALJ for the entry of a new order with the views expressed herein.
IT IS FURTHER ORDERED that the respondents’ petition to review the ALJ’s order on the issue of penalties is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________________ Kathy E. Dean
__________________________________ Dona Halsey
NOTICE
An action to modify or vacate this Order may be commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed December 17, 1998
to the following parties:
Christopher Pena, 39 Ironweed Drive, Pueblo, CO 81001
Kimberly Costin, Public Service Company of Colorado, 1225 Seventeenth Street, Suite 800, Denver, CO 80201-0840
Mark Anderson, Esq., Law Firm of Mark Anderson, 123 West 12th Street, Pueblo, CO 81003 (For Claimant)
Michael A. Perales, Esq., 999 18th Street, Suite 3100, Denver, CO 80202 (For Respondent)
BY: ____________