W.C. No. 4-300-993Industrial Claim Appeals Office.
May 30, 2001
ORDER OF REMAND
The respondents seek review of orders of Administrative Law Judge Martinez (ALJ) dated April 26, 2000, and November 14, 2000. Because the ALJ may have incorrectly applied the burden of proof in determining the cause of the claimant’s medical impairment, we set aside the November 14 order, and remand for entry of a new order consistent with the views expressed herein.
This matter is before us for the second time. In an Order of Remand dated December 20, 1999, we held the ALJ denied the claimant due process of law by ruling on the “cause” of the claimant’s cervical condition after indicating at the commencement of a hearing the causation issue would not be determined until later. A statement of the facts, as they existed prior to our order, is contained in the Order of Remand. That statement is incorporated herein.
On April 26, 2000, the ALJ entered an order determining that Dr. Scott, the Division- sponsored independent medical examination (DIME) physician, misapplied the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides) in determining the claimant sustained a 12 percent whole person impairment attributable to her cervical condition. Specifically, the ALJ found the DIME physician failed to place “marks on the claimant’s skin during the range of motion testing,” failed to consult the treating physician to resolve disparities in the medical impairment ratings, and “arbitrarily” assigned an apportioned impairment rating. Instead, the ALJ found the claimant’s correct impairment rating is 43 percent of the whole person, as assessed by a treating physician.
On May 23, 2000, the respondents filed a motion to withdraw the final admission of liability dated October 22, 1998, “on the ground that claimant’s cervical condition did not result from her compensable injury.” In support, the respondents incorporated by reference their “prior briefs and position statement on the issue of the causation of claimant’s cervical condition to her compensable injury.” (Emphasis added). The ALJ granted this motion by order dated June 7, 2000. Thereafter, the claimant filed an amended application for hearing listing the issue as “compensability.”
A hearing was held on August 28, 2000. At that time counsel for the claimant stated the issue was “causation of the cervical injury to [the claimant’s] work related injury.” Counsel for the respondents concurred in this statement of the issue. (Tr. August 28, 2000, p. 3).
On November 14, 2000, the ALJ entered an order awarding permanent partial disability benefits based on the 43 percent whole person impairment rating. In so doing, the ALJ concluded the claimant had the burden to prove by a “preponderance of the evidence that her cervical symptomatology is causally related to for March 4, 1996 compensable injury of bilateral carpal tunnel syndrome.” When applying this standard to the evidence, the ALJ found the DIME physician, in his report of July 13, 1997, “obliquely questioned” whether the claimant’s cervical condition was attributable to the industrial injury or to preexisting rheumatoid arthritis, “but nevertheless assigned an impairment rating.” The ALJ concluded that “nothing in the [DIME physician’s] report reflects an unequivocal opinion that claimant’s cervical condition is not causally related to her compensable injury.” Then, relying on the reports and testimony of other physicians, as well as circumstantial evidence, the ALJ found the claimant “met her burden of proof in establishing the causal relationship of her cervical condition to her March 4, 1996 compensable injury.”
On review, the respondents contend, inter alia, the ALJ applied an incorrect burden of proof in determining the claimant’s cervical impairment is causally related to the industrial injury. The respondents argue that DIME physician opined, both in his report and in his deposition testimony, that the claimant’s cervical impairment was caused by the preexisting rheumatoid arthritis, not the effects of the admitted industrial injury. Under these circumstances, the respondents assert the DIME physician’s opinion concerning causation must be overcome by clear and convincing evidence, not by a preponderance as found by the ALJ. Because the ALJ’s findings are insufficient to permit appellate review, and because the ALJ may have misapplied the law, we remand the matter for entry of a new order concerning the cause of the claimant’s cervical impairment. Section 8-43-301(8), C.R.S. (2000).
It is now well established that the question of whether a particular component of the claimant’s overall medical impairment was caused by the compensable industrial injury is an inherent part of the rating process under the AMA Guides. Consequently, our courts have held a DIME physician’s finding that a particular component of impairment was, or was not, caused by the industrial injury is binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(c), C.R.S. 2000; Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998) Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590
(Colo.App. 1998).
Under our statutory scheme, it is the ALJ who determines as a matter of fact whether a party challenging that DIME physician’s impairment rating, including the underlying causation determinations, has overcome the DIME physician’s rating by clear and convincing evidence. See Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). If the DIME physician’s “finding” concerning the claimant’s impairment rating is ambiguous or subject to conflicting interpretations, it is for the ALJ to determine the DIME physician’s true rating as a matter of fact. Lambert and Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656
(Colo.App. 1998); cf. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (applying same principle to DIME physician’s ambiguous opinion concerning maximum medical improvement). Further, when determining the DIME physician’s “finding,” the ALJ must consider not only that DIME physician’s written report, but also the DIME physician’s deposition testimony. Lambert and Sons, Inc. v. Industrial Claim Appeals Office, supra.
Here, as we read the November 14 order, the ALJ failed to make any factual determination concerning the DIME physician’s “finding” as to whether the claimant’s cervical impairment was or was not caused by the industrial injury. Moreover, the ALJ’s order does not indicate the ALJ considered the DIME physician’s deposition testimony, some of which suggests that the DIME physician did not believe any of the claimant’s cervical impairment was caused by the injury. For instance, the DIME physician testified that he “did not believe that [the claimant’s] cervical neck problem was more likely than not caused by the conditions of her work or by any injury at work.” (Scott Depo. p. 14). Further, the DIME physician’s testimony might be interpreted as evidencing his opinion that, although there is a possibility the claimant’s cervical condition was aggravated by her employment, it is not probable. For instance, the DIME physician testified, “if anything, maybe there was an aggravation,” and he stated the “nature of the work could have aggravated an underlying condition” and “could have led to muscle tightness.” (Scott Depo. pp. 14, 23).
Thus, on remand, the ALJ must determine as a matter of fact whether or not the DIME physician ascribed any of the claimant’s cervical impairment to the effects of the industrial injury. In directing the ALJ to make this finding, we should not be understood as expressing any opinion or mandating any specific determination concerning the DIME physician’s determination. If the ALJ determines the DIME physician’s finding is that none of the cervical impairment is related to the industrial injury, we agree with the respondents the ALJ must require the claimant to overcome that finding by clear and convincing evidence. This requirement is imposed by § 8-42-107(8)(c) and the interpretive case law cited above.
In remanding the matter we reject the claimant’s argument that the respondents’ burden of proof argument is controlled by principles discussed in Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844
(Colo.App. 2000), rather than Qual-Med, Inc. v. Industrial Claim Appeals Office, supra, and Egan v. Industrial Claim Appeals Office, supra. I Faulkner, the respondents sought to withdraw their admission on grounds that further investigation revealed the claimant had not sustained a compensable injury of any kind. Indeed, as the Faulkner court noted, the respondents raised “the issue of causation pursuant to §8-41-301(1)(c),” which requires the claimant to prove an injury “proximately caused by an injury or occupational disease arising out of and in the course of the employee’s employment.” In such circumstances, the Faulkner court concluded the issue did not involve the correctness of the DIME physician’s impairment rating, but rather the “threshold requirement” that an injured employee establish a compensable injury by a preponderance of the evidence before any compensation is awarded. 12 P.3d at 846.
Here, the respondents’ motion to withdraw their final admission does not indicate an attempt to dispute whether the claimant sustained a compensable injury in the first instance. Rather, as the respondents specifically stated in their motion to withdraw the admission, their position was that the admission for permanent partial disability benefits was improvident because the DIME physician’s true opinion was that none of the claimant’s rateable impairment was caused by the “compensable injury.” (Emphasis added). Thus, unlike the situation in Faulkner, the respondents did not dispute that the claimant sustained an injury arising out of and in the course of his employment. Rather, the respondents sought to dispute whether the claimant’s cervical impairment was caused by the admitted industrial injury. This determination falls under the principle of Qual-Med and Egan that a DIME physician’s finding that a particular component is, or is not, related to the industrial injury must be overcome by clear and convincing evidence.
The claimant’s application for hearing, which marked the issue of “compensability,” does not lead us to a different conclusion. Indeed, at the commencement of the August 28 hearing, counsel for the claimant specifically stated the issue was “causation of the cervical injury.” Nowhere did counsel for the claimant or counsel for the respondents raise the issue of whether the claimant sustained a compensable injury in the first instance.
Neither are we persuaded by the claimant’s argument that the April 26 order establishes the DIME physician’s finding concerning causation was overcome as a matter of law. The question of whether a particular “component” of the claimant’s rating was caused by the industrial injury largely involves the issue of “diagnosis” and consideration of the claimant’s medical history. Qual-Med, Inc. v. Industrial Claim Appeals Office, supra. Thus, a finding the DIME physician misapplied the AMA Guides when determining the degree of impairment does not amount to a finding the DIME physician was incorrect in determining the cause of the impairment. Indeed, the April 26 order reflects the ALJ’s finding that the DIME physician violated the AMA Guides in calculating the degree of impairment, but the order in no way addresses the question of whether the DIME physician accurately determined the cause or causes of the claimant’s cervical impairment.
Under the circumstances, the matter must be remanded for entry of a new order consistent with the views expressed herein. In light of our conclusions, we need not reach the other issues raised by the respondents, including the propriety of the April 26 order.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 14, 2000, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Copies of this decision were mailed May 30, 2001 to the following parties:
Victoria Shoaff, 585 25 ½ Road, #4, Grand Junction, CO 81505
Manor Care Inc. n/k/a Choice Hotels International, 711 S. 15th St., Grand Junction, CO 81501-4629
Royal Insurance Company, Amy Gerelick, Claim Representative, Gallagher Bassett Services, P. O. Box 4068, Englewood, CO 80155-4060
J. Keith Killian, Esq., and Joanna C. Jensen, Esq., 225 N. 5th St., #1010, P. O. Box 4859, Grand Junction, CO 81502 (For Claimant)
James R. Clifton, Esq., and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy