IN THE MATTER OF THE CLAIM OF LINDA L. SHAFER, Claimant, v. MIDTOWN OCCUPATIONAL HEALTH SERVICES, Employer, and COLORADO COMPENSATION INSURANCE AUTHORITY, Insurer, Respondents.

W.C. No. 4-264-075Industrial Claim Appeals Office.
March 10, 1998

FINAL ORDER

The respondents seek review of a Supplemental Order of Administrative Law Judge Friend (ALJ), which awarded the claimant medical impairment benefits based on a disability of nine percent of the whole person. We affirm.

The claimant sustained a shoulder injury in 1994, and was treated by Dr. Scott. Dr. Scott eventually referred the claimant to Dr. McElhinney for surgery. The surgery was performed in 1995, but the claimant continued to have pain afterwards. In May 1996, Dr. McElhinney noted that the claimant was “somewhat depressed about it.”

Dr. Scott placed the claimant at maximum medical improvement (MMI) in October 1996, and rated her as suffering from a one percent upper extremity impairment. The ALJ found that Dr. Scott did not rate the claimant for psychiatric impairment, and “implicitly found no permanent psychological impairment.”

Subsequently, the claimant requested a Division independent medical examination (IME) on the issue of impairment. The IME physician rated the claimant as suffering from a twelve percent upper extremity impairment, which converts to a seven percent whole person impairment. The physician further found that the claimant is suffering a “permanent psychiatric impairment” rated at two percent of the whole person. Consequently, the IME physician gave the claimant a combined whole person impairment rating of nine percent.

At the hearing, the respondents took the position that the claimant was required to prove, independent of the IME physician’s opinion, that the psychiatric impairment was causally connected to the industrial shoulder injury. However, relying on §8-42-107(8)(c), C.R.S. 1997, the ALJ found that the respondents failed to overcome the IME physician’s impairment rating, including the psychiatric rating, by clear and convincing evidence. Thus, the ALJ awarded medical impairment benefits in accordance with the IME physician’s nine percent whole person rating.

On review, the respondents contend that the ALJ misapplied the burden of proof in requiring them to overcome the IME physician’s opinion by clear and convincing evidence. According to the respondents, the cause of the claimant’s psychiatric impairment is a separate issue which the ALJ should have decided independent of whether the IME physician’s rating was overcome. The respondents reason that the claimant carried the burden of proof on the causation issue, and that the ALJ improperly shifted the burden to them by requiring them to overcome the IME physician’s opinion on the cause of the psychiatric impairment. We are not persuaded.

In Fisher v. University of Denver, W.C. No. 4-254-479
(September 10, 1997), we considered the same argument in a case factually similar to that presented here. See also, Clem v. Qual-Med, Inc., W.C. No. 4-181-242 (August 11, 1997). We see no reason to depart from our holding in Fisher, and apply it here.

In Fisher, we observed that § 8-42-107(8)(c) provides that the impairment rating issued by the Division IME physician is “binding on the parties” unless overcome by clear and convincing evidence. Further, we stated that the question of whether a particular impairment is “causally related to the industrial injury is an inherent part of the IME physician’s rating” process. This is true because the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides), specifically provide that a physician must make an assessment of the cause or causes of the claimant’s overall medical impairment, and state that the “existence of an impairment does not create a presumption of contribution by a factor with which the impairment is often associated.” See AMA Guides, Chapter 2.2 p. 6-7; Askew v. Industrial Claim Appeals Office, 927 P.2d 1333, 1337 (Colo. 1996) (rating of overall medical impairment necessarily includes the decision to apportion impairment to prior causes). We also observed that permitting or requiring ALJs to conduct separate factual hearings concerning the cause of each element of a claimant’s impairment rating (psychiatric or physical) would defeat the legislative purpose underlying §8-42-107(8)(c). That provision was designed to reduce litigation concerning permanent partial disability, not encourage ALJs to conduct item by item evaluations of the “cause” of each aspect of an impairment rating. See Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995).

Moreover, this case, like Fisher, is not one in which the respondents denied that the claimant sustained any compensable injury. Thus, the issue before the IME physician was the extent
of the impairment caused by the compensable injury, not the existence of the injury itself. Thus, the claimant satisfied her statutory “burden of proof” by producing the Division IME physician’s opinion that there is a causal connection between the psychiatric impairment and the admittedly compensable injury. Under these circumstances, the statutory scheme enacted by the General Assembly requires that the burden of proof shift to the respondents to disprove causation by clear and convincing evidence.

We recognize the respondents’ argument that it is “illogical” to allow IME physicians to conduct an analysis of the “cause” of an impairment because resolution of this issue requires factual determinations which are not always medical in nature. Such decisions might include the credibility of the claimant with regard to her medical history. However, in our view, the statutory scheme evidences the General Assembly’s conclusion that bringing cases to a close by way of the IME process is better than encouraging extensive litigation on the issue of causation, and permitting ALJs to exercise unfettered discretion concerning the weight of the medical and lay evidence. Instead, the General Assembly determined that ALJs must ascribe great weight to the opinions of IME physicians concerning the cause of medical impairment, although ALJs remain free to make the ultimate determination under the clear and convincing standard.

We have also rejected the respondents’ arguments predicated on the unpublished decision in Mendonca v. Industrial Claim Appeals Office, (Colo.App. No. 96CA0736, December 12, 1996) (not selected for publication). The following language from our decision in Fisher is pertinent:

“As we read Mendonca it merely held that a claimant may seek ongoing medical benefits after MMI under the preponderance of the evidence standard. Conversely, Mendonca also appears to uphold the proposition that an IME physician’s findings concerning MMI and the degree of medical impairment are binding regardless of the claimant’s subsequent assertion that he has an undiscovered psychological impairment. Thus, Mendonca is not inconsistent with the result which we reach here.”

Insofar as the respondents have made other arguments, we find them to be without merit. The award of medical impairment benefits based on the IME physician’s rating must be upheld.

IT IS THEREFORE ORDERED that the ALJ’s Supplemental Order dated November 18, 1997, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Bill Whitacre

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. 1997.

Copies of this decision were mailed March 10, 1998 to the following parties:

Linda L. Shafer, 12134 Elizabeth St., Thornton, CO 80241

Martin Shure, M.D., d/b/a Midtown Occupational Health Svcs., 2005 Franklin St., Ste. 620, Denver, CO 80205-5439

Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)

Perry L. Goorman, Esq., 5655 S. Yosemite St., #200, Englewood, CO 80111-3220 (For the Claimant)

Janice M. Greening, Esq., 1225 17th St., Ste. 2800, Denver, CO 80202 (For the Respondents)

By: ________________________________