W.C. No. 4-311-089Industrial Claim Appeals Office.
April 23, 1999.
CORRECTED ORDER OF REMAND
The respondents have filed a “Motion for a Corrected Order” to correct an error in our Order of Remand dated April 13, 1999. As argued by the respondents the Order of Remand mistakenly stated that the order on review was “affirmed.” Consequently, we grant the respondents’ Motion for a Corrected Order, and as corrected, reissue our Order of Remand in its entirety.
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) which awarded permanent partial disability benefits. We set aside the order and remand for the entry of a new order.
The claimant suffered a compensable right shoulder injury on August 12, 1996. Dr. Kuper rated the claimant’s permanent impairment as 10 percent of the right upper extremity. Dr. Sabin performed a Division-sponsored IME under the provisions of §8-42-107(8)(c), C.R.S. 1998. In a report dated October 7, 1997, Dr. Sabin opined that the claimant suffered 19 whole person impairment due to 10 percent impairment of the right shoulder and 10 percent impairment of the cervical spine based, in part, on a specific disorder under Table 53(II)(B) of the American Medical Association Guide to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides). However, during Dr. Sabin’s subsequent deposition on January 28, 1998, he opined that the were no records of a “medically documented” cervical injury. Therefore, Dr. Sabin opined that he erroneously included a rating for cervical impairment.
The claimant was also evaluated by Dr. Ryan, who testified that the claimant met the criteria for a rating of cervical impairment under Table 53(II)(B) of the AMA Guides, and therefore, Dr. Ryan assigned a rating for cervical impairment. Dr. Ryan rated the claimant’s total impairment as 17 percent of the whole person.
Relying on our conclusions in Acker v. Jefferson County
W.C. No. 4-201-155 (March 20, 1996), the ALJ also found that Dr. Sabin’s deposition testimony was not part of Dr. Sabin’s IME report. Further, the ALJ was persuaded by Dr. Ryan’s testimony and found that the contrary evidence did not rise to “clear and convincing” evidence that Dr. Sabin’s October 1997 rating was incorrect. Consequently, the ALJ ordered the respondents to pay permanent partial disability based on 19 percent whole person impairment.
On review the respondents contend, inter alia, that the ALJ erred in finding that Dr. Sabin’s deposition testimony was not part of the IME report. We agree.
The claimant asserts that the respondents’ argument was not raised before the ALJ, and therefore, the claimant argues that it should not be considered for the first time on appeal. However, the ALJ’s order indicates that he considered the argument ripe for adjudication. See Conclusions of Law 1. Under these circumstances, the argument is properly before us on review.
Under § 8-42-107(8)(c), the IME physician’s finding of medical impairment is binding unless overcome by “clear and convincing” evidence. Egan v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA0821, November 13, 1998). The process for conducting an IME under § 8-42-107(8)(c) is set forth in the Rules of Procedure adopted by the Director of the Division of Workers’ Compensation (Director). Insofar as pertinent, Rule XIV(L)(2)(b), 7 Code Colo. Sess. 1101-3 at 54, provides that the IME physician shall “within twenty (20) calendar days of the examination submit the original report with all attachments to the Division and a copy to all parties.” Rule XIV(L)(6) at 59 states that “during the IME process, there shall be no communication allowed between the parties and the IME physician except as approved by the director, or an administrative law judge,” and that “after acceptance by the Division of the final report,” there shall be no communication between the parties and the IME physician except as approved by the director, an ALJ or an agreement of the parties.
In Lambert Sons, Inc. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA1774, July 9, 1998), the court held that an IME physician’s deposition testimony, after submission of the IME report, should be considered, together with the initial report, as part of the IME physician’s “finding” for purposes of §8-42-107(8)(c). The pertinent facts presented here are not significantly different than the facts in Lambert, and thus, we conclude that the ALJ erred in failing to consider Dr. Sabin’s January 1998 deposition as part of Dr. Sabin’s IME report.
Furthermore, we agree with the respondents that this claim is factually distinguishable from Acker v. Jefferson County, supra. In Acker, an IME physician issued a report dated January 30, 1995, where she rated the claimant’s permanent medical impairment as 14 percent of the whole person. On May 17, 1995, the IME physician wrote a letter in which she rated the claimant’s impairment as 11 percent of the whole person. An ALJ determined that the May 17 letter was not issued within the time provided for the IME physician to submit her final report. Neither was the letter the result of any approved communication between the parties and the IME physician under Rule XIV(L). Consequently, we upheld the ALJ’s determination that the May 17 letter was not part of the IME physician’s “finding” on the issue of medical impairment. See also, Roberts v. Bakes `N Bagels, W.C. No. 4-160-379 (June 13, 1997).
In this case, Dr. Sabin’s deposition was the result of approved communication between the parties and Dr. Sabin. In an order dated December 31, 1997, an ALJ granted the respondents’ December 23, 1997, “Motion to Take Evidentiary Deposition of Jeffery Sabin, M.D.” Consequently, unlike the facts in Acker, Dr. Sabin’s deposition did not violate Rule XIV(L). See Kenney v. E.I. Dupont Denemours, W.C. No. 4-325-067 (November 24, 1998). Therefore, Acker does not support a contrary result.
However, Dr. Sabin’s October 1997 report and his deposition testimony are inconsistent. Therefore, on remand the ALJ must resolve the conflict and determine, as a matter of fact, what “finding” Dr. Sabin made concerning the claimant’s medical impairment. See Blue Mesa Forest v. Lopez, 928 P.2d 831
(Colo.App. 1996); Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995). Based on that determination, the ALJ shall also determine whether the IME’s rating of medical impairment has been overcome by clear and convincing evidence.
In view of our remand it is premature to consider the respondents’ remaining arguments.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 15, 1998, is set aside and the matter is remanded to the ALJ 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 APRIL 23, 1999
the following parties:
Andrew Smith, 4101 S. Espana Way, Aurora CO 80013
Conoco Incorporated, PO Box 1267, Ponca City, OK 74602-1267
Bob Lovelace, E.I. Dupont De Nemours Company,, 5801 Brighton Blvd, Commerce City, CO 80022
Susie Shepard, E.I. Dupont De Nemours Company, Kemper National Insurance Co., PO Box 5347, Denver, CO 80217-5347
Colleen Sullivan, National Loss Control Service Corp, St. Paul Fire Machine, PO Box 5347, Denver, CO 80217-5347
Jeffrey Goldstein, Esq., 1763 Franklin Str., Denver, CO 80218 (For Claimant)
J. Barton Maxwell, Esq., 1225 17th Str, 28th FL, Denver, CO 80202 (For Respondents)
BY: AP