W.C. No. 4-320-928Industrial Claim Appeals Office.
November 1, 2001
FINAL ORDER
The respondent seeks review of an order issued by Administrative Law Judge Coughlin (ALJ Coughlin) pursuant to our order of remand. We affirm.
The claimant worked as a long-haul truck driver. In May 1996, the claimant began suffering rectal pain. He later experienced rectal bleeding, and was diagnosed with hemorrhoids in July 1996. In August 1997, ALJ Hopf found the claimant had a preexisting hemorrhoidal condition which was not caused by his employment. However, ALJ Hopf found that the symptoms of the preexisting condition were exacerbated by the claimant’s work, which required prolonged sitting. ALJ Hopf also found that prolonged sitting at work was a “necessary precondition” to the development of the claimant’s disease, and that the claimant’s preexisting condition was not disabling in the absence of the industrial aggravation. Therefore, ALJ Hopf determined that the claimant’s rectal bleeding constituted a compensable occupational disease and awarded workers’ compensation benefits without apportionment under Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993). We affirmed ALJ Hopf’s order on January 20, 1998, and our order was not appealed.
The claimant ultimately underwent a Division-sponsored independent medical examination (DIME) by Dr. Jacobs. Dr. Jacobs assigned a 20 percent whole person impairment rating due to “objective evidence of colon/rectal disease or anatomic loss or alteration” and “mild gastrointestinal symptoms with occasional disturbance of bowel function accompanied by moderate pain,” and “minimal restriction of diet or mild, symptomatic therapy” being necessary. In so doing, Dr. Jacobs s recognized that he was not “specifically asked to address causality and etiology.” However, he opined that the claimant’s “recurrent problems with abscess formulation, fistula and recurrent rectal inflammatory changes” were the result of the claimant’s diabetes and “surgical complications,” not his employment as a truck driver. He added that although sitting can be “exquisitely painful” when a patient’s hemorrhoidal condition is active, “it is difficult to understand from a physiologic standpoint how internal hemorrhoids can even be aggravated by sitting for prolonged periods and driving a truck.” Under these circumstances, Dr. Jacobs stated that he felt “compelled to apportion 50% of this to totally non-work related phenomena.” Consequently, Dr. Jacobs assigned a 10 percent medical impairment rating to the industrial injury.
In an order dated June 20, 2000, ALJ Corchado determined the claimant failed to overcome Dr. Jacobs’ opinion that 50 percent of the claimant’s permanent impairment was “caused” by non-occupational factors. However, ALJ Corchado also found that Dr. Jacobs “apportioned” 50 percent of the impairment to non-industrial factors, and determined the respondent failed to prove the claimant suffered a “previous disability.” Therefore ALJ Corchado concluded no apportionment was appropriate under former § 8-42-104(2), C.R.S. 1998 [amended 1999 Colo. Sess. Laws, Ch. 141, at 410 for injuries occurring on or after July 1, 1999], and ordered the respondent to pay benefits based upon 20 percent whole person impairment. The respondent timely appealed that order.
We concluded ALJ Corchado’s findings were internally inconsistent insofar as he construed Dr. Jacobs’ adjusted rating as both an opinion on “causation” and “apportionment.” Furthermore, we concluded that the findings were insufficient to permit appellate review of whether ALJ Corchado erroneously awarded permanent partial disability benefits based on 20 percent whole person impairment. Therefore, we set aside the order and remanded the matter with directions that the ALJ determine whether Dr. Jacobs’ medical impairment rating reflected an opinion on causation or apportionment, and for a new determination of permanent partial disability.
On remand, ALJ Corchado was not longer employed by the Division of Administrative Hearings. Consequently, the matter was reassigned to ALJ Coughlin.
ALJ Coughlin found that Dr. Jacobs’ opinions on the cause of the claimant’s abscess formulation, fistula and recurrent inflammatory changes represented a “gratuitous expression of doubt” that ALJ Hopf had correctly determined the claimant suffered a compensable injury, and were not opinions concerning the cause of a specific component of the claimant’s permanent medical impairment. (Finding of Fact 2). Rather, ALJ Coughlin interpreted Dr. Jacobs’ 10 percent reduction in the impairment rating as an opinion concerning the “relative contributions of industrial and nonindustrial factors” in the claimant’s permanent medical impairment. (Finding of Fact 4). Thus, ALJ Coughlin determined that Dr. Jacobs’ opinions pertained to “apportionment” not “causation.”
ALJ Coughlin further determined there was insufficient evidence the claimant had a “previous disability” within the meaning of former §8-42-104(2). Therefore, ALJ Coughlin determined no apportionment of permanent partial disability benefits was appropriate and ordered the respondent to pay benefits based upon 20 percent whole person impairment. The respondent appealed ALJ Coughlin’s order.
The respondent’s petition to review alleges ALJ Coughlin erroneously determined the issue was apportionment and not causation. The respondent also contends ALJ Coughlin erroneously failed to “consider all of the issues presented” by our Order of Remand. Further, the respondent contends ALJ Coughlin should have resolved the apportionment issue unde Anderson v. Brinkhoff, supra. We disagree.
We note the respondent has not filed a brief in support of the petition to review. Consequently, the effectiveness or our review is limited. See Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
As stated in our Order of Remand, the term “apportionment” in the context of permanent medical impairment is defined as “the determination of the degree to which each of various occupational and nonoccupational factors has contributed to a particular impairment.” Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996), holds that pre-existing medical impairment is subject to “apportionment” under former §8-42-104(2) if the pre-existing impairment was sufficiently identified and treated to be considered part of the subsequent disability and the previous impairment was “disabling” at the time of the subsequent injury.
However, where the DIME physician renders an opinion on the cause of the claimant’s permanent medical impairment, Askew is not implicated. Rather, the DIME’s opinion is binding unless overcome by clear and convincing evidence. Public Service Company of Colorado v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 00CA1991, June 21, 2001); Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590
(Colo.App. 1998). This is true because in the context of permanent medical impairment the issue is “causation” when a physician is determining whether or not an entire component of the claimant’s impairment is related to the industrial injury. Public Service Company of Colorado v. Industrial Claim Appeals Office, supra; Johnson v. Christian Living Campus, W.C. No. 4-354-266 (October 5, 1999), aff’d. American Compensation Insurance Company v. Industrial Claim Appeals Office, Colo. App. No. 99CA2058, August 3, 2000, (not selected for publication). Because Askew and Qual-Med involve separate legal standards, a claim for permanent partial disability benefits requires the ALJ to determine whether a DIME physician’s opinions concern “causation” or “apportionment.” Nichols v. Denver Publishing Company, W.C. No. 4-248-693 (September 21, 2000); Cudo v. Blue Mountain Energy Inc., W.C. No. 4-375-278 (October 29, 1999).
Because Dr. Jacobs’ report was subject to conflicting inferences, we directed the ALJ to resolve the conflict and determine whether Dr. Jacobs’ report reflected opinions on “causation” or “apportionment.”Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995) (where the DIME physician’s report is subject to conflicting inferences, it is the prerogative of the ALJ as the fact finder to resolve the conflicts). ALJ Coughlin resolved the conflict and determined Dr. Jacobs’ reduced rating reflected an opinion on “apportionment,” not “causation.” ALJ Coughlin’s findings reflect a plausible interpretation of Dr. Jacobs’ report and, therefore, are binding on review. Section 8-43-301(8), C.R.S. 2001; University Park Care Center v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA0072, July 19, 2001) Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985) (if two equally plausible inferences may be drawn from the evidence, we may not substitute our judgment for that of the ALJ). Therefore, we reject the respondent’s contention that ALJ Coughlin failed to comply with the Order of Remand.
We previously rejected the respondent’s contention that the “apportionment” of permanent medical impairment is governed by the principles in Anderson v. Brinkhoff, supra. Anderson holds that a claimant is entitled to recover for an occupational disease if the hazards of employment cause, intensify, or aggravate, to some reasonable degree, the disability for which compensation is sought, which applies to the initial determination of whether the claimant suffered a compensable occupational disease. In contrast, the apportionment of permanent medical impairment from a compensable occupational disease is governed by the principles established in Askew v. Industrial Claim Appeals Office, supra. We adhere to our prior conclusions.
Finally, the respondent contends ALJ Coughlin misapplied the law in
“failing to consider the change in the law which transpired in Cooper v. Industrial Claim Appeals Office, 998 P.2d 5 (Colo.App. No. 1999), which was reversed by the Supreme Court in Sunny Acres Villa Inc., v. Cooper, 25 P.3d 44 (Sup.Ct. 2001).”
In Sunny Acres Villa Inc., v. Cooper, supra, the court concluded that a prior determination of temporary disability does not bar litigating the issue of “causation” at a hearing on permanent total disability under the doctrine of collateral estoppel. We are not persuaded there was any error here.
At the hearing before ALJ Corchado, the claimant argued the respondent was collaterally estopped from relitigating the issue of “causation” because ALJ Hopf had determined the cause of the claimant’s disabling condition. The respondent argued that the “causation” issue before ALJ Corchado was controlled by § 8-42-107(8)(c), C.R.S. 2001, which required to claimant to overcome the DIME physician’s opinion on the cause of the claimant’s permanent medical impairment by clear and convincing evidence. (See April 10, 2000 Position Statement, #3).
In our Order of Remand we relied on Cooper v. Industrial Claim Appeals Office, supra, to conclude that because the respondent did not appeal our January 1998 order, the respondent was collaterally estopped from further litigation on the apportionment of compensability unde Anderson v. Brinkhoff, supra. However, we agreed with ALJ Corchado that the respondent was not collaterally estopped from litigating the cause of the claimant’s permanent medical impairment.
Upon reconsideration, we conclude neither party requested that ALJ Corchado redetermine the cause of the claimant’s injury or occupational disease. Compare Sneath v. Express Messenger Service, 931 P.2d 565
(Colo.App. 1996). In fact, the respondent’s Brief in Support of the Petition to Review ALJ Corchado’s order stated that the “sole issue was apportionment of a rating issued by a Division IME physician.” (January 29, 2001 Brief, p. 1). Therefore, our conclusion that the respondent was collaterally estopped from relitigating the issue of apportionment unde Anderson v. Brinkhoof, supra, was dictum. Furthermore, insofar as the respondent may be understood as now seeking to relitigate ALJ Hopf’s denial of apportionment under Anderson v. Brinkhoff, supra, this argument was not before ALJ Coughlin for adjudication (See Position Statement on Remand, May 21, 2001). Rather, our Order of Remand only required ALJ Coughlin to enter a new order concerning permanent medical impairment. Under these circumstances, this record does show ALJ Coughlin erroneously failed to consider the principles established in Sunny Acres Villa Inc. v. Cooper, supra.
In reaching our conclusions we recognize that the respondent’s January 31, 2000 response to the claimant’s application for hearing before ALJ Corchado endorsed the issue of “petition to Re-Open.” However, the record transmitted on review does not contain a petition to reopen. Similarly, the transcript of the hearing before ALJ Corchado does not reference a petition to reopen, and the respondent’s “Position Statement” submitted at the hearing before ALJ Corchado does not refer to a petition to reopen.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 10, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed November 1, 2001 to the following parties:
Jorge Saenz-Rico, P. O. Box 350602, Westminster, CO 80035
Jeanne Hogue, Yellow Freight System, Inc., P.O. Box 7932, Overland Park, KS 66211
Glen Davis, Yellow Freight System, Inc., 15905 Smith Road, Aurora, CO 80011
Douglas Phillips, Esq., 155 South Madison, Ste. 330, Denver, CO 80209 (For the Claimant)
Michael A. Perales, Esq., 999 18th St., #3100, Denver, CO 80202 (For the Respondent)
BY: A. Pendroy