W.C. No. 4-387-796 4-329-457Industrial Claim Appeals Office.
May 15, 2002
FINAL ORDER
The respondents and the claimant filed petitions to review an order of Administrative Law Judge Stuber (ALJ) which required the payment of permanent partial disability benefits based on medical impairment of 34 percent of the whole person. The respondents contend the ALJ erred in “combining” all of the claimant’s impairments into a single whole person impairment because the claimant sustained two occupational diseases. The respondents further contend the ALJ erred in converting the claimant’s right upper extremity impairment to a whole person impairment. The claimant contends the ALJ erred in determining that he failed to overcome the Division-sponsored independent medical examination (DIME) physician’s finding that he sustained no rateable psychological impairment. We affirm the order insofar as it authorized conversion of the upper extremity impairment to a whole person impairment, and denied benefits based on depression. However, we remand the matter for further proceedings because we agree with the respondents that the claimant sustained two occupational diseases, and the impairment ratings for these diseases should not have been “combined” to form a single whole person impairment rating.
The ALJ’s findings may be summarized as follows. The claimant was employed as a pressman. This job involved repetitive movement of the upper extremities, and required the claimant to stand on concrete floors throughout the day.
In October 1996, the claimant developed symptoms of pain in his right wrist and shoulder. He was diagnosed with right rotator cuff tendinitis and bilateral carpal tunnel syndrome (CTS). In February 1997 the claimant underwent bilateral CTS surgery. The treating physician placed the claimant at maximum medical improvement (MMI) in June 1997.
The claim for benefits attributable to the upper extremity condition was assigned W.C. No. 4-329-457. On August 14, 1997, the respondents filed a final admission of liability for temporary disability benefits based on injury to both upper extremities. The admitted date of the injury was October 1, 1996, and the respondents did not admit liability for any permanent disability benefits. In August 1999, the respondents agreed to reopen this claim, apparently for the purpose of determining whether or not the claimant sustained any permanent disability as a result of this injury. (Tr. p. 6).
After reaching MMI, the claimant returned to work for the employer, but in 1998 developed bilateral knee pain. In February 1998 the claimant was diagnosed with “end-stage osteoarthritis” in both knees. (Report of Dr. Mills, February 5, 1998), and in April 1999 he underwent “bilateral total arthroplasty procedures.” The claim for benefits attributable to the lower extremity condition was assigned W.C. No. 4-387-796. On September 21, 1999, the respondents filed a general admission of liability, listing the date of injury as July 13, 1998.
In September 1999 the treating physician referred the claimant to Dr. Kleen for the purpose of assigning an impairment rating. Dr. Kleen assigned ratings for both upper extremities, both lower extremities, and for depression. The total whole person impairment rating was 48 percent.
The claimant underwent a DIME for the purpose of determining permanent impairment caused by both injuries. The DIME physician found an 18 percent right upper extremity impairment, which converted to an 11 percent whole person impairment. This rating included impairment caused by reduced range of motion in the claimant’s right shoulder joint. The DIME physician further found the claimant sustained a two percent impairment of the left upper extremity, which converted to a 1 percent whole person impairment.
The DIME physician also rated the claimant’s lower extremities based on reduced range of motion in the knees, and the bilateral surgeries. The DIME physician determined the claimant sustained a 33 percent impairment of the left lower extremity, which converted to a 13 percent whole person impairment. The DIME physician also found the claimant sustained a 34 percent impairment of the right lower extremity, which converted to a 14 percent whole person impairment. The DIME physician then combined the whole person impairment ratings for each of the extremities (14 +13+11+1) and determined the claimant suffered a 34 percent whole person impairment.
The DIME physician declined to assess any impairment for depression. Although the DIME physician diagnosed depression, she found the claimant was “primarily describing depression due to his inability to perform activities as related to pain from the job injuries.” Consequently, the DIME physician stated that any impairment “due to psychiatric issues” had “already been addressed” in the physical impairment rating.
The respondents filed an application for hearing listing the issue as “overcoming and clarifying” the DIME report because the DIME physician “mistakenly” gave the claimant “one whole person rating for the combined effects of two separate injuries.” At the commencement of the hearing, the ALJ discussed the issues with counsel for both parties. Claimant’s counsel represented to the ALJ that the respondents were not contesting the DIME physician’s ratings with respect to the bilateral CTS and “bilateral knees.” Counsel for the claimant further advised the ALJ the claimant intended to overcome the DIME physician’s failure to rate depression and certain other conditions which are not pertinent to this appeal. Respondents’ counsel did not disagree with the statements of claimant’s counsel, but did note that the case involved two claims which had been consolidated. Counsel for the claimant then indicated the respondents disagreed with the DIME physician’s decision to rate the claimant’s shoulder condition in connection with the claim for CTS.
The ALJ then noted that, in his understanding, “both sides object to some part of the Division IME’s rating;” therefore, both parties “have a clear and convincing evidence burden.” The respondents did not object or disagree with the ALJ’s definition of the issues or his assignment of the burden of proof.
In the order dated June 12, 2001, the ALJ concluded the respondents failed to overcome by clear and convincing evidence the DIME physician’s finding that the claimant’s right upper extremity injury included impairment of the shoulder. The ALJ further determined the claimant failed to overcome the DIME physician’s determination there was no rateable mental impairment for depression. In this regard, the ALJ cited evidence that, although the claimant is depressed, the depression has not resulted in any “additional impairment” beyond that caused by “physical limitations and pain.” Thus, the ALJ concluded the claim is entitled to “the 34 % whole person rating determined by the Division IME,” and ordered payment to be made based on this rating “for these two injury claims.”
I.
On review, the respondents contend the ALJ erred in ordering that permanent disability benefits be based on the 34 percent rating which resulted from combining the ratings for the upper and lower extremity occupational diseases. The claimant asserts this argument was waived. We agree with the respondents.
Section 8-42-107(1)(a), C.R.S. 2001, provides that “when an injury
results in permanent medical impairment” which is enumerated in subsection (2), “the employee shall be limited to medical impairments as specified in subsection (2).” (Emphasis added). However, under the law applicable to these claims, “if a work-related accident results in both a scheduled injury and a non-scheduled injury, the scheduled injury must be converted to a whole person impairment rating and combined with the non-scheduled injury’s whole person impairment rating in calculating permanent disability benefits.” Mountain City Meat Co. v. Oqueda, 919 P.2d 246, 254 (Colo. 1996); compare § 8-42-107 (7)(b)(I) and (II), C.R.S. 2001 (applicable to injuries occurring on or after July 1, 1999). However, as the respondents argue, nothing in § 8-42-107(1)(a) or Mountain City Meat Co. indicates that if the claimant sustains two separately compensable injuries or diseases that the impairments attributable to such injuries should be combined to create a single whole person impairment rating. See also, Morris v. Industrial Claim Appeals Office, 942 P.2d 1343 (Colo.App. 1997).
Here, the ALJ unmistakably found that the claimant sustained two occupational diseases, one of which affected the claimant’s upper extremities, while the other affected the claimant’s lower extremities. These occupational diseases constituted separate injuries or purposes of workers’ compensation. See § 8-40-201 (2), C.R.S. 2001 (defining term “injury” to include disability resulting from an occupational disease). Moreover, as the ALJ found, these two occupational diseases arose at different times. Neither did the ALJ find any causal relationship between the two occupational diseases. Indeed, the ALJ’s conclusions suggest the upper extremity disease was caused by repetitive motion while the lower extremity disease was caused by standing at work.
It follows there was no authority, statutory or otherwise, allowing the impairment ratings for these distinct injuries to be combined to arrive at a single impairment rating. Rather, the proper result is to determine the impairment ratings for the two occupational diseases, and order payment of permanent partial disability benefits for each disease in accordance with the provisions of § 8-42-107(8)(d), C.R.S. 2001. In reaching this result, we do not agree with the ALJ insofar as the order may be interpreted as treating this issue as one which implicates the issue of deference to the DIME physician’s impairment rating. To the contrary, the issue presented here is one of law concerning proper interpretation of the statute in cases where the claimant sustains multiple industrial injuries or diseases, each of which results in a whole person medical impairment rating.
We reject the claimant’s assertion that the respondents waived this argument. Although waiver may be implied from conduct, as where a party acts inconsistently with assertion of a right, the conduct must evidence a voluntary and intentional relinquishment of the right. See Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988).
Here, the record does not support an argument the respondents engaged in conduct which may be construed as a voluntary and intentional relinquishment of their right to argue that the claimant sustained separate occupational diseases, and that the impairment ratings for these diseases may not be combined into a single whole person impairment rating. First, this argument was expressly raised in the respondents’ application for hearing. Further, at the time the parties discussed the issues with the ALJ, counsel for the respondents was careful to point out that the case involved separate claims which had been consolidated for hearing. (Tr. p. 6). Moreover, this argument is not inconsistent with the separate issue of whether the impairment rating for the occupational disease of the upper extremities properly includes a rating for the right shoulder.
Thus, the ALJ’s order must be set aside insofar as it orders the payment of permanent partial disability benefits based on a single 34 percent whole person impairment rating. Rather, on remand, the ALJ shall determine the impairment ratings for the separate occupational diseases, and award benefits accordingly. Section 8-42-107(8)(d).
II.
The respondents next contend the ALJ erred in determining the claimant sustained whole person impairment of the right upper extremity. However, we agree with the claimant that this argument was waived.
Claimant had the burden, in the first instance, to prove entitlement to benefits under the whole person impairment provisions of §8-42-107(8)(c). Section 8-43-201, C.R.S. 2001 (claimant shall have the burden of proving entitlement to benefits by a preponderance of the evidence). In the ordinary case, a claimant seeking to prove that a shoulder injury does not appear on the schedule must demonstrate the upper extremity injury resulted in “functional impairment” beyond the arm at the shoulder. See Strauch v. Swedish Healthcare System, 917 P.2d 366
(Colo.App. 1996).
If the claimant succeeds in establishing “functional impairment” not found on the schedule, the claimant is entitled to whole person medical impairment benefits under § 8-42-107(8)(c). In such circumstances, the whole person impairment rating of the treating physician becomes binding unless there is a DIME. If a DIME is conducted, the whole person impairment rating of the DIME physician is binding unless overcome by clear and convincing evidence. See Delaney v. Industrial Claim Appeals Office, 30 P.3d 691 (Colo.App. 2000) (DIME provisions apply to non- scheduled, but not scheduled impairments).
In view of these principles, we agree with the claimant that the respondents did not raise, and thus waived, any argument that the claimant failed to prove the injury to the right upper extremity resulted in functional impairment not found on the schedule. Claimant’s counsel represented to the ALJ that the respondents had agreed to the impairment rating of the DIME physician with respect to the upper extremity occupational disease. The respondents did not dispute this representation. The ALJ then stated that it was his understanding the respondents would be required to overcome the DIME physician’s whole person impairment rating by clear and convincing evidence. The respondents did not object to the ALJ’s statement of the applicable law, nor did they indicate that the claimant should be required to prove, in the first instance, that he sustained functional impairment not found on the schedule. Rather, the entire thrust of the respondents’ argument was that the DIME physician’s rating for the shoulder condition would be overcome because the shoulder condition is not causally related to the occupational disease. Under these circumstances, the respondents waived the argument that, if the shoulder condition is related to the occupational disease, the claimant did not prove functional impairment beyond the arm at the shoulder. Kuziel v. Pet Fair, Inc., 948 P.2d 103
(Colo.App. 1997) (argument not raised before the ALJ is waived and may not be raised for the first time on appeal). If the respondents intended to assert that position, they were required to do so when the ALJ was clarifying the issues.
III.
The claimant argues the ALJ erred in finding the claimant failed to overcome the DIME physician’s refusal to assign impairment based on depression. The claimant argues the DIME physician’s refusal to rate the depression on grounds that the depression is encompassed in the physical impairment ratings is contrary to the AMA Guides and the rules of the Division of Workers’ Compensation. The claimant specifically cites the DIME physician’s failure to complete a mental impairment rating work sheet. Further, the claimant contends the DIME physician’s rating was overcome by the testimony of medical experts who appeared on behalf of the claimant. We are not persuaded.
The DIME physician’s impairment rating is binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(c). The questions of whether the DIME physician properly applied the AMA Guides in arriving at the impairment rating, and whether the rating has been overcome by clear and convincing evidence, are issues of fact for determination by the ALJ. McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263
(Colo.App. 1999). As the ALJ correctly noted, proof the DIME physician deviated from the rating protocols of the AMA Guides or the applicable rules of procedure does not require the ALJ to find the rating has been overcome by clear and convincing evidence. Rather, proof of a deviation constitutes some evidence which the ALJ may consider in determining whether the party challenging the rating has presented sufficient evidence to overcome the rating. Otero v. St. Mary Corwin Hospital,
W.C. No. 4-346-007 (November 9, 1999), aff’d., Otero v. Industrial Claim Appeals Office, (Colo.App. No. 00CA0963, November 30, 2000). Indeed, as the Court of Appeal stated in its Otero opinion, treating “the deviation as evidence merely recognizes the reality that an IME opinion should not be stripped of its presumptive effect where a physician’s failure to comply strictly with the AMA Guides is either insignificant to the overall rating or can be explained, as in this case, based upon other acceptable grounds.”
Because the question of whether the DIME physician’s impairment was overcome is one of fact, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. This standard requires us to view the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The claimant’s assertion notwithstanding, the record did not compel the ALJ to find that the AMA Guides prohibit a physician from refusing to rate depression where the “symptoms” are caused by the physical consequences of the injury, including pain, and are not psychological in origin. It is true the claimant’s experts testified the DIME physician misinterpreted the AMA Guides on this issue. (Tr. p. 23, 70). However, the DIME physician testified to the contrary, and that testimony was largely corroborated by the written report of Dr. Moe. (Burns depo. p. 34). Because neither party produced a copy of the pertinent portions of the AMA Guides, this case presents a mere conflict between experts concerning the contents and proper interpretation of the AMA Guides. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995). Thus, the issue was one of fact for the ALJ.
We also note that the Division’s directions concerning the proper use of the mental impairment rating work sheet require that the claimant the exhibit “mental symptoms” which produce impairment in one or more of the specified categories. Rule of Procedure XIX, 7 Code Colo. Reg. 1101-3. As we understand the opinion of the DIME physician, and that of Dr. Moe, the “symptoms” which the claimant exhibited are not attributable to the “mental” effects of depression, but are instead attributable to pain caused by the injury. Indeed, as Dr. Moe expressly stated, the claimant’s “stated limitations are the result of his experience of pain,” and insofar as his “pain is due to his injury, is impairment rating on this basis is captured by the rating provided for the physical injuries.”
It is true that the DIME physician failed to complete a work sheet as required by the Rules of Procedure. However, this deviation from the rules does not establish, as a matter of law, that the rating was overcome. The DIME physician’s report indicates that she considered the claimant’s level of functioning and found that, to the extent he is impaired, it is related to the effects of pain. Further, the DIME physician testified the claimant did not appear to have difficulties with hygiene, and communicated adequately. (Burns Depo. p. 20). Further, Dr. Moe made a rather exhaustive examination of the claimant’s level of function. Under these circumstances, we cannot say the failure to complete the work sheet demonstrates the DIME physician’s refusal to rate depression was overcome by clear and convincing evidence.
Insofar as the claimant makes other arguments, we find them to be factual in nature, and conclude they afford no basis for interfering with the ALJ’s finding that the claimant failed to overcome the DIME physician’s rating.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 12, 2001, is set aside insofar as it determined the claimant is entitled to permanent partial disability benefits based on a single whole person impairment rating. In this regard, the matter is remanded for further proceedings and entry of a new order consistent with the views expressed herein.
IT IS FURTHER ORDERED that the ALJ’s order in otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed May 15, 2002 to the following parties:
Joseph R. Spirek, 6056 Jellison St., Arvada, CO 80004
Warneke Paper Box Company, 4500 Joliet St., Denver, CO 80239-2919
Mid-Century Insurance Company, Tamarac II, 7535 E. Hampden Ave., #200, Denver, CO 80231
David W. Doyle, Esq., 4350 Wadsworth Blvd., #260, Wheat Ridge, CO 80033 (For Claimant)
Christian M. Lind, Esq., 1801 Broadway, #1500, Denver, CO 80202 (For Respondents)
By: A. Hurtado