W.C. No. 4-491-537.Industrial Claim Appeals Office.
August 3, 2006.
FINAL ORDER
The respondents seek review of an order dated March 8, 2006 of Administrative Law Judge Jones (ALJ) that reopened the claim and imposed liability upon the respondents for permanent partial disability (PPD) benefits. We vacate that portion of the order awarding PPD benefits and otherwise affirm the order.
The record reflects that the claimant sustained an admitted work-related injury to his back on December 27, 2000; however, the claimant was placed at maximum medical improvement (MMI) with no permanent impairment, and the claim was closed. The claimant filed a second claim concerning his back (W.C. No. 4-571-308), apparently alleging a new injury on November 27, 2002, during which time the employer obtained insurance from another carrier, Pinnacol Assurance. Pinnacol asserted that the claimant suffered no new injury, but that his injury in 2000 had worsened. ALJ Felter then ordered the payment of temporary disability payments pending a hearing to determine whether the claimant sustained a new, compensable injury.
A hearing was later held by ALJ Henk to determine whether the claimant sustained a new injury and the corresponding issue of whether to reopen this claim. The claimant was found to have sustained a compensable occupational disease with an onset of disability on November 27, 2002. The claimant’s petition to reopen this case was denied because the claimant failed to prove that his current condition was causally related to his initial back injury.
ALJ Jones subsequently conducted a hearing on the issues of the claimant’s petition to reopen this claim, PPD benefits, and “DIME procedure.” Findings of Fact, Conclusions of Law, and Order at 2. The claimant petitioned to reopen this claim on the basis of a change in condition, but argued in his position statement that there was a mistake or error. The ALJ made several findings of fact, which consisted largely of the procedural history of the claimant’s workers’ compensation claims and may be summarized as follows. A physician performed an independent medical examination through the Division of Workers’ Compensation (DIME) regarding the second claim filed by the claimant. The physician determined that the claimant suffered a medical impairment for his occupational disease, which the ALJ characterized as a new injury. The doctor also determined that the claimant suffered a five percent impairment resulting from his original back injury in this case. The ALJ therefore determined that the impairment assigned by the DIME physician provided a basis for finding that the treating physician was mistaken in placing the claimant at MMI with no impairment. The ALJ determined that the respondents failed to overcome by clear and convincing evidence the opinion of the DIME physician. She therefore reopened this claim based on the DIME physician’s opinion and her determination that the treating physician was in error or mistaken when he placed the claimant at MMI for his original injury with no permanent impairment.
The respondents appealed ALJ Jones’ order and argue that another ALJ’s determination that the claimant sustained an occupational injury precludes the claimant from pursuing PPD benefits for his original injury. In support of this claim, the respondents assert that various doctrines prohibiting the subsequent litigation of adjudicated issues prevent the claimant from going forward on his petition to reopen. However, the respondents’ argument is based on the premise that the claimant sustained only one compensable injury or disease. We conclude that the claimant sustained two separate and distinct injuries or occupational diseases and was, therefore, able to pursue a petition to reopen this matter.
The respondents assert that a previous ALJ conclusively determined that the claimant’s disability was caused by his occupational disease. Instead, we read the decision of ALJ Henk concerning the claimant’s occupational disease as having determined that the claimant’s condition and need for medical treatment were not shown to be caused by his original injury, thereby resulting in the denial of his petition to reopen this claim. See Exhibit A (Findings of Fact, Conclusions of Law, and Order of ALJ Henk) at 4, ¶ 1. Rather, ALJ Henk determined that the claimant sustained a separate occupational disease, for which Pinnacol, as the employer’s later insurer, was liable to pay the claimant’s temporary disability benefits. Exhibit A at 5-6, ¶ 3. Since the claimant sustained a distinct injury in this claim, as opposed to his occupational disease in his second claim, the respondents’ argument regarding a last injurious exposure is inapposite.
The respondents also argue that the claimant may not reopen this claim based on a change in his condition. They assert that the documentation from the DIME physician attached to his petition to reopen does not constitute the appropriate medical documentation as required by the rules of procedure. The claimant filed his most recent petition to reopen this claim in 2005 See W.C. Rule of Procedure X(B)(2), 7 Code Colo. Reg. 1101-3 at 37 (petition to reopen due to change in medical condition shall include medical report documenting medical deterioration or improvement); W.C. Rule of Procedure 7-3(A), 7 Code Colo. Reg. 1101-3 at 27 (effective January 1, 2006) (petition to reopen shall state basis for reopening and provide supporting documentation).
Generally, the authority to reopen a claim under § 8-43-303(1), C.R.S. 2005, is discretionary with the ALJ. Thus, we may not interfere with the order unless there is fraud or a clear abuse of discretion. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996). An abuse of discretion is not shown unless the order is beyond the bounds of reason, as where it is unsupported by the law or contrary to the evidence See Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). It is undisputed that the claimant attached documentation to his petition to reopen; however, the respondents contest the sufficiency of the documentation. A failure to comply strictly with procedural requirements for filing a petition to reopen is not jurisdictional and does not preclude the ALJ from granting the petition. Osborne v. Industrial Comm’n, 725 P.2d 63, 65
(Colo.App. 1986). We decline to find that the ALJ abused her discretion in considering the claimant’s petition to reopen instead of denying it outright, where the claimant attached a medical report detailing his medical condition and discussing corresponding impairment ratings. See Osborne v. Industrial Comm’n, supra.
In any event, the ALJ granted the claimant’s petition to reopen on the basis of a mistake or error, rather than a change in condition. There is no transcript of the proceedings, but it does not appear from the record before us that the respondents objected to the ALJ considering mistake or error as a basis for reopening this claim. Under these circumstances, the record suggests the respondents waived any corresponding objection to the ALJ’s consideration of whether the claim should be reopened due to a mistake or error. Moreover, we note that, although the petition to reopen designates the claimant’s worsened condition as the basis for reopening, the claimant argued in his position statement filed after the hearing that the basis for reopening was error or mistake.
The respondents also assert that the ALJ erred in requiring them to overcome by clear and convincing proof the impairment rating provided by the DIME physician. We agree with the respondents’ argument. The DIME physician’s report addressed apportionment of an impairment rating in the second claim. Apportionment determinations are inherent in the rating process and can therefore require the DIME apportionment to be overcome by clear and convincing evidence. See Campbell v. Department of Corrections, W.C. No. 4-446-238 (November 19, 2002). However, the Division-sponsored independent medical examination process constitutes an exception to the usual burden of proof which requires the claimant to prove entitlement to benefits by a preponderance of the evidence. Section 8-43-201, C.R.S. 2005. Consequently, our courts have not given presumptive weight to a DIME physician’s findings except when the Act expressly so requires. Cordova v. Industrial Claim Appeals Office, supra
(independent medical examination physician’s opinion concerning whether or not condition worsened so as to justify reopening not entitled to “special weight” under Division-sponsored independent medical examination procedure).
Here, the ALJ imposed upon the respondents the burden to overcome the rating of the DIME physician from the companion case even though the issue to be determined in this case was not apportionment of impairment ratings, but whether the claim should be reopened. The DIME physician’s apportionment from the second claim was used in this matter to provide evidence that the claimant had undergone a change in condition sufficient to warrant reopening this claim. The five percent impairment rating imposed by the DIME physician was, therefore, not entitled to presumptive effect in this claim. Cordova v. Industrial Claim Appeals Office, supra. It was error for the ALJ to effectively consider the DIME physician’s impairment rating of five percent to be binding unless overcome by clear and convincing evidence.
More importantly than the misplaced burden of proof, however, is that we are unable to ascertain from the ALJ’s order the basis for the award of permanent partial disability benefits in this claim. Although, as we have noted, the DIME’s report that the claimant sustained five percent whole person impairment as a result of the first injury was sufficient to support the order reopening the claim, it does not follow that the ALJ could then award benefits based upon that impairment rating. The statutes and the regulations set forth the detailed procedures to be used for the delivery of permanent partial disability benefits. The five percent whole person impairment rating here was assigned by Dr. Shenoi, who was the DIME doctor in the occupational disease claim. Her rating triggered no duties on the part of the respondents and conferred no rights on the claimant in the claim regarding the 2000 injury. In our view the ALJ does not have the authority to award additional PPD based upon the rating of a DIME physician in another claim, and who was neither an authorized treating physician nor a DIME IME physician in the subject claim.
We are mindful that, depending upon the procedural course pursued by the claimant below, this holding may result in an additional DIME in the December 2000 claim, and that this additional DIME may result in a report contradictory to the first DIME. Moreover, it is arguably inefficient and even illogical for a claimant to undergo two DIMEs with regard to the same body part, merely because two separate claims exist. However, in our view, a number of procedural avenues existed for avoiding these administrative inefficiencies, including consolidation of the claims or procedural merger of them for purposes of the DIME. The record does not disclose that any of these procedures were employed here, and in our view it is not appropriate to bind the respondents to a DIME conducted in a different claim, where they had no opportunity to submit medical records, to participate in selecting the doctor, or to otherwise participate in the DIME process.
IT IS THEREFORE ORDERED that the portion of the ALJ’s order dated March 8, 2006, awarding permanent partial disability benefits is vacated;
IT IS FURTHER ORDERED that the ALJ’s order dated March 8, 2006 is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
Antonio Saldana, Wiggins, CO, Attn: Billy G. and Patricia Shutts, 7 Bar Dairy, Windsor, CO, American Compensation Insurance CO, Minneapolis, MN, Britton Morrell, Esq., Greeley, CO, (For Claimant).
Mark Dumm, Esq., Denver, CO, (For Respondents RTW).
Douglas L. Stratton, Esq., Ft. Collins, CO, (Respondents).