W.C. No. 4-375-006.Industrial Claim Appeals Office.
June 11, 2004.
FINAL ORDER
The claimant and the respondents separately petitioned for review of a Corrected Order of Administrative Law Judge Martinez. The respondents contest the ALJ’s award of additional temporary disability and medical benefits. The claimant contests the ALJ’s failure to award benefits for a left wrist injury. We reverse the award of additional benefits and otherwise affirm.
The claimant suffered a compensable back injury on March 5, 1998, during a heavy lifting incident. The claimant subsequently injured his right foot during therapy for the back injury. The claimant also complained of symptoms in his left hand
The respondents terminated temporary disability (TTD) and medical benefits based upon an authorized treating physician’s (ATP) finding of maximum medical improvement (MMI). However, a Division-sponsored independent medical examination (DIME) physician subsequently opined the claimant was not at MMI for the foot injury. Thereafter, the respondents reinstated TTD and provided additional medical benefits.
On May 18, 2001, an ATP placed the claimant at MMI for the right foot injury. In response the respondents filed a Final Admission of Liability (FAL) dated November 20, 2001, which terminated TTD and medical benefits. The claimant did not timely object to the FAL. Instead, the claimant argued the FAL was invalid because the respondents failed to obtain a “follow-up” DIME as required by the Rules of Procedure, Part XIV(L) (7), 7 Code Colo. Reg. 1101-3 at 60.
The ALJ determined Rule XIV(L) (7) required the respondents to return the claimant to the DIME physician for a follow-up DIME prior to filing the November 20 FAL. Under these circumstances, the ALJ granted the claimant’s motion to strike the FAL and ordered the respondents to reinstate TTD and medical benefits. However, the ALJ determined the claimant failed to prove a causal connection between the back injury and his left hand problems. Therefore, the ALJ denied the claimant’s request for medical benefits to treat the left hand
I.
On review the respondents contend the ALJ erroneously determined the FAL was invalid. We agree.
Section 8-42-107 (8) (b) (I), C.R.S. 2003, provides that initial determination of MMI be made by “an authorized treating physician.” If a party disputes the ATP’s MMI determination, the party may challenge it by requesting a DIME in accordance with the procedures contained in §8-42-107.2, C.R.S. 2003. Town of Ignacio v. Industrial Claim Appeals Office, 70 P.3d 513 (Colo.App. 2002). The DIME physician’s opinion is then binding unless overcome by clear and convincing evidence to the contrary.
Where the respondents file a FAL based on MMI, § 8-43-203 (2) (b) (II), C.R.S. 2003, requires a claimant to contest the FAL within 30 days by filing an objection. Further, the claimant must “mail a notice and proposal” to select a DIME within 30 days of the mailing of the FAL.
Section 8-42-107 (8) does not expressly address the procedure to be followed where the ATP’s initial finding of MMI has been set aside pursuant to the DIME physician’s finding, and a ATP later places the claimant at MMI. However, in Perales v. Napier Enterprises, Inc.,
W.C. No. 4-516-705 (December 12, 2003), we concluded that § 8-42-107 (8) is intended to place the parties in the same legal position which existed before the ATP’s second MMI determination and the DIME process initiated. In particular, when MMI is redetermined by an ATP the respondents may either request a follow-up DIME to contest the ATP’s determination of MMI or file a FAL based on the ATP’s second MMI determination and rating. It then becomes incumbent on the claimant to timely request a follow-up DIME to contest the ATP’s second MMI determination. We decline to depart from our reasoning in Perales.
Contrary to the ALJ’s determination Rule XIV (L) (7) is not inconsistent with this conclusion. Rule XIV(L) (7) provides that when a DIME physician has been previously selected and a follow-up DIME is “appropriate,” the “IME shall to the extent possible be scheduled with the original IME physician.” However, the rule does not purport to establish under what circumstances respondents must request a DIME. It merely establishes that, to the extent possible, a “follow-up DIME” be performed by the same physician who performed the original DIME. (Emphasis added). Thus, the rule is one of efficiency concerning repeat DIMEs, not a jurisdictional or substantive rule.
Furthermore, on February 24, 2004, the Director of the Division of Workers’ Compensation (Director) issued an “Interpretive Bulletin” discussing Rule XIV (L) (7) and the Perales decision. The bulletin states that the Perales decision sets forth a procedure which “is somewhat different from what has been the Division’s policy,” but the “Division will incorporate the Panel’s decision into its policy.” Incorporating th Perales decision into the Division’s policy, the Director states the following:
So, when this fact pattern occurs and MMI is determined for the second time, if the carrier agrees with the rating the carrier must file a new Final Admission consistent with that rating. If the carrier does not agree it would be required to contact the IME unit in writing to schedule a follow-up examination pursuant to Rule XIV (L) (7). The carrier must take one of these actions within 30 days. If the carrier issues a new Final Admission and the claimant does not dispute the benefits admitted, the IME unit should be notified so the DIME can be closed and no further action is necessary. If the claimant disagrees with the second Final Admission, he or she has 30 days to object and also contact the IME unit in writing to schedule a follow-up examination.
In our opinion the bulletin represents a reasonable interpretation of the rule and underlying statutory scheme. Thus, we agree with the Director that in fact patterns like that presented here, there is an “open DIME” after the DIME determines the claimant is not at MMI and there is no need to repeat the selection process to designate a “new” DIME physician, but the parties otherwise remain in the same legal position they would be in if the DIME process had never begun.
Applying these principles here, it is apparent the respondents acted properly in filing the November 20 FAL after receiving the second ATP’s MMI determination. Because the claimant did not challenge the ATP’s opinions by contesting the FAL and requesting a follow-up DIME within the time limits established by § 8-42-107.2 (2) (b), the claim automatically closed. See Dyrkopp v. Industrial Claim Appeals Office 30 P.3d 821
(Colo.App. 2001). Consequently, the ALJ erroneously struck the FAL and awarded additional TTD and medical benefits absence an order reopening the claim under § 8-43-303, C.R.S. 2003.
II.
The claimant’s Petition to Review contains general allegations of error. See § 8-43-301 (8), C.R.S. 2003. The claimant also contends the ALJ erred in failing to award workers’ compensation benefits on account of the left wrist injury, “which is acknowledged in the order to be aggravated by factors of employment.” However, the “Claimant’s Opening and Response Brief” contains no specific arguments in support of the Petition to Review. Consequently, the effectiveness of our review is limited.
To obtain workers’ compensation benefits the claimant must prove a causal relationship between the industrial injury and the medical condition for which he seeks benefits. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). Further, the question of whether the claimant’s condition is caused by the original industrial injury, or a new injury is a question of fact for resolution by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997); F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Because the question is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301 (8), C.R.S. 2003. However, the ALJ is not held to a crystalline standard in articulating his findings of fact. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Admittedly, the ALJ found the claimant’s job duties as a metal finisher require repetitive hand motion. (Finding of Fact 2). However, that is not inconsistent with the ALJ’s finding the claimant failed to prove the left hand problems were causally related to the March 5, 1998 back injury. Furthermore, the ALJ findings are supported by substantial evidence in the DIME physician’s report dated October 26, 1999. Therefore, the ALJ did not err in failing to compensate the left hand injury in this claim.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 10, 2003, is reversed insofar as it required the respondents to pay additional temporary disability and medical benefits. In all other respects the ALJ’s order is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
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David Cain
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Kathy E. Dean
Richard Stefanski, Northglenn, CO, Sanco Industries, Inc., Denver, CO, Heather Bartlett-Mogg, Liberty Mutual Insurance Co., Englewood, CO., Timothy Quinn, Esq., Denver, CO, for Claimant.
David G. Kroll, Esq., Denver, CO, for Respondents.