W.C. No. 4-324-686Industrial Claim Appeals Office.
September 4, 1998
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) which awarded permanent partial disability benefits based upon a 13 percent whole person impairment. We affirm.
The claimant suffered compensable injuries in a motor vehicle accident on August 13, 1996. On December 10, 1996, Dr. Primack determined the claimant to be at maximum medical improvement (MMI) with no permanent impairment. Dr. Kuper agreed. The respondents filed an uncontested Final Admission of Liability on January 5, 1997, which terminated temporary disability and medical benefits effective December 10, 1996. Although it is not part of the record on review, the parties agree that the respondents filed another Final Admission of Liability in late March 1997, which amended their prior admission with respect to the total amount of temporary disability benefits.
On July 7, 1997, the claimant underwent a Division-sponsored independent medical examination (IME) by Dr. Jones pursuant to §8-42-107(8)(c), C.R.S. 1998. Dr. Jones opined the claimant sustained a 5 percent whole person impairment under Table 53(B)(II) of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides), and an 8 percent whole person impairment due to range of motion deficits. Dr. Jones opined that the range of motion deficits were largely due to hamstring tightness. Dr. Jones’ total rating was 13 percent impairment of the whole person. The claimant subsequently applied for a hearing on permanent disability benefits.
The ALJ found that neither the January 5 nor the March final admission expressed any position on the issue of permanent disability, and therefore, did not comply with the Rules of Procedure. Consequently, the ALJ determined that the claimant’s failure timely to contest the January 5 Final Admission did not close the issue of permanent disability. Furthermore, the ALJ found that the claimant timely objected to the March Final Admission. Therefore, the ALJ rejected the respondents’ contention that the claimant was required to establish grounds to reopen the claim prior to a hearing on permanent partial disability.
The ALJ also found Dr. Jones’ opinions credible, and persuasive and rejected the contrary opinions of Dr. Kuper and Dr. Primack. As a result, the ALJ determined that the respondents failed to overcome Dr. Jones’ rating by “clear and convincing evidence” as required by § 8-42-107(8).
I.
On review, the respondents contend that their January 5 Final Admission complied with Rule IV(N)(5), 7 Code Colo. Reg. 1101-7 at 6.03. They also contend that the Final Admission sufficiently notified the claimant that the respondents denied liability for permanent partial disability benefits. Therefore, they argue that the issue of permanent disability was automatically closed by the claimant’s failure timely to object. We disagree.
Under § 8-43-203(2), C.R.S. 1997, [amended 1998 for injuries on or after August 5, 1998] a final admission of liability which is not contested within sixty days automatically closes the claim “as to the issues admitted in the final admission.” We have previously held that the language “as to the issues admitted” does not mean only those “issues” on which the respondents agree to pay
benefits. Instead, this language must be interpreted as referring to “issues” on which the respondents affirmatively take a position, either by agreeing to pay benefits, or by denying liability to pay benefits. Tidwell v. Department of Corrections, W.C. No. 4-150-549 (November 25, 1994); Fries v. Foothills Care Center, W.C. No. 3-990-704 (April 7, 1994). We adhere to our prior conclusions. Consequently, we reject the respondents’ contention that any benefits not specifically admitted in a final admission must be considered denied. See Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo.App. 1993) (final admission addressing temporary and permanent disability did not “close” issue of penalty for failure timely to admit or deny liability).
However, the respondents’ contend that because the December 1996 medical reports of Dr. Primack and Dr. Kuper were attached to the January 5 Final Admission, and these medical reports reflect the physicians’ opinions that the claimant has no permanent disability, the January 5 Final Admission necessarily advised the claimant that the respondents denied liability for permanent disability benefits. We are not persuaded
As found by the ALJ, the respondents’ January 5 Final Admission did not admit or deny liability for permanent disability benefits. Instead, the respondents left blank that portion of the admission form addressing permanent disability. Under these circumstances, the ALJ could, and did, find that the January 5 Final Admission does not state a position on permanent disability. Consequently, the ALJ did not err in concluding that the January 5 Final Admission did not close the issue of permanent disability.
Moreover, the record supports the ALJ’s finding that the claimant timely objected to the March Final Admission. Consequently, the ALJ correctly determined that no petition to reopen was required prior to a hearing on the claimant’s request for permanent disability benefits.
The respondents further arguments on the issue have been considered and are not persuasive. Rule IV(N)(5) provides that within twenty days of the primary care physician’s determination that the claimant has “no impairment” the respondents must either file an “admission of liability consistent with the physician’s opinion” or request an IME on the issue of impairment. As found by the ALJ, the respondents’ Final Admissions of Liability neither admitted nor denied liability for permanent disability benefits. Therefore, the Final Admissions were not “consistent” with the opinions of Dr. Primack or Dr. Kuper and did not comply with Rule IV(N)(5). Cf. Monfort Transportation v. Industrial Claim Appeals Office, 942 P.2d 1358 (Colo.App. 1997) [under Rule IV(G)(1) respondents required to admit for permanent disability, if any, at time they terminate temporary disability benefits because claimant has reached MMI].
II.
Alternatively, the respondents contend the ALJ erred in awarding benefits based on Dr. Jones’ impairment rating. We disagree.
Section 8-42-107(8)(c), provides that the IME physician’s impairment rating is binding unless overcome by “clear and convincing evidence.” As argued by the claimant, clear and convincing evidence has been defined as evidence which demonstrates that it is “highly probable” the IME physician’s rating is incorrect. Qual-Med, Inc. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA1440, May 28, 1998); Metro Moving Storage Co. v. Gusset, 914 P.2d 411 (Colo.App. 1995).
The question of whether the respondents sustained their burden of proof to overcome Dr. Jones’ impairment rating is a question of fact for resolution by the ALJ. Metro Moving Storage Co. v. Gussert, supra. Therefore, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998; Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995).
Table 53(II)(B) of the AMA Guides assigns a 5 percent whole person rating where the claimant suffers an “intervertebral disc or other soft tissue lesion” in the lumbar spine which is unoperated, “with medically documented injury and a minimum of six months of medically documented pain and rigidity with or without muscle spasm.”
Dr. Jones opined the claimant has a “soft tissue lesion” in the lumbar spine. (Smith depo. p. 19). Thus, it is immaterial that Dr. Jones admitted the claimant does not have a “intervertebral disc.”
Next, the respondents contend that the record does not demonstrate the claimant has “six months of medically documented pain and rigidity” because the claimant was placed at MMI less than six months after the injury. We rejected a similar argument in Martinez v. MCI Communications, W.C. No. 4-207-987 (July 24, 1996), where we stated:
“Section 8-40-201(11.5), C.R.S. 1995 Cum. Supp. defines MMI as the date when “any medically determinable physical or mental impairment as a result of injury has become stable and when no further treatment is reasonably expected to improve the condition.” (Emphasis added). However, the statute also provides that physical impairment must be determined in accordance with the AMA Guides. Section 8-42-101(3.7) C.R.S. 1997. Thus, it is possible that an injury may produce some determinable and stable medical impairment, yet the injury is not fully rateable under the AMA Guides because insufficient time has passed.”
In Martinez, we also stated that the respondent’s construction would result in a situation where the claimant’s degree of medical impairment would be dependent on the date some workers would attain MMI after 6 months of documented pain, while others would reach MMI before 6 months of MMI. As a result, workers with identical injuries would be entitled to different medical impairment ratings, and therefore, different permanent disability benefits based, solely on the speed at which they reached MMI. We do not believe the General Assembly intended this result. Accordingly, we reject the respondents’ argument that the MMI date is determinative of whether the claimant has six months of documented pain for purposes of applying Table 53 of the AMA Guides.
Moreover, Dr. Jones testified that he understood Table 53 applied where the claimant was discharged from treatment less than six months after the injury, but was not pain free at the time of the discharge. (Smith, depo. p. 42). Based upon his review of the medical records, Dr. Jones also opined that the claimant was not pain free at the time of MMI, and that the claimant demonstrated pain during the IME. Thus, there is substantial evidence in Dr. Jones’ testimony that the claimant had at least six months of documented pain.
The respondents also contend that in the absence of a rateable impairment under Table 53 Dr. Jones erred in assigning a rating for impaired range of motion. Because we uphold the ALJ’s determination that Dr. Jones did not err in assigning an impairment rating under Table 53, we need not consider this argument.
Further, the respondents contend there is no objective evidence that the claimant’s impaired range of motion is due to the industrial injury. In support, the respondents cite Dr. Primack’s opinion that the claimant had no measurable range of motion impairment at the time of MMI. The respondents also point out that between MMI and the IME the claimant began work for a new employer. Therefore, they argue the claimant’s hamstring tightness and resulting range of motion impairment must have been caused by the new employment. We are not persuaded.
The respondents presented no direct evidence that the claimant’s hamstring tightness was the result of his employment duties after MMI. Furthermore, insofar as the medical evidence is subject to conflicting inferences, the ALJ’s findings reflect that he resolved the conflict in favor of Dr. Jones. Dr. Jones opined that within a reasonable degree of medical probability, the claimant’s hamstring tightness is due to the original industrial injury. (Jones depo. pp. 7, 46, 50).
We may not substitute our judgment for that of the ALJ concerning the probative value and sufficiency of Dr. Jones’ opinions and decline the claimant’s invitation to do so. See City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155
(Colo.App. 1993). Thus, it is immaterial that the record contains some medical evidence which, if credited, might support a finding that Dr. Jones incorrectly rated the claimant’s medical impairment. Accordingly, we need not discuss the probative value of the reports of Dr. Kuper and Dr. Primack. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
We also reject the respondents’ argument that Dr. Jones erroneously based his impairment rating on the claimant’s subjective pain complaints, without objective evidence in violation of § 8-42-107(8)(c). Section 8-42-107(8)(c) provides that a “physician cannot render a medical impairment rating based on chronic pain without anatomic or physiologic correlation.” The statute goes on to state that “anatomic correlation must be based on objective findings.” However, the cited portion of §8-42-107(8)(c) has no application to the issue presented here. Dr. Jones found that the claimant was entitled to compensation for a specific bodily impairment to the lumbar spine. Consequently, the cited portion of § 8-42-107(8)(c) is not applicable to the facts of this claim. Fenton v. Provenant Heath Partners, W.C. No. 4-131-871 (July 9, 1996).
III.
For his part, the claimant contends that the respondents are “persisting in arguing for a different outcome on findings clearly within well [sic] established discretion of the Administrative Law Judge.” Therefore, the claimant requests an award of attorney fees under § 8-43-301(14), C.R.S. 1998. We deny the request for attorney fees.
Section 8-43-301(14) states that attorney fees may be awarded against an attorney who submits a petition to review or brief in support of a petition “which is not well grounded in fact and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” Although we do not agree with the respondents’ arguments, we do not consider the petition to review and appellate brief to be so lacking in merit that they it may be classified as not well grounded in fact or law. Therefore, we decline to award attorney fees. See BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 96CA1033, September 18, 1997) Brandon v. Sterling Colorado Beef Co., 827 P.2d 559 (Colo.App. 1991) (resort to judicial review is not considered frivolous or in bad faith as long as there is a reasonable basis for party to challenge the ALJ’s order).
IT IS THEREFORE ORDERED that the ALJ’s order dated February 6, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed September 4, 1998 to the following parties:
Shawn A. Velasquez, 8141 Irving St., Westminster, CO 80030
Roaring Fork Redi-Mix, 6555 Huron St., Denver, CO 80221
Tina Southard, Business Insurance Co., P.O. Box 101630, Denver, CO 80250-1630
Thomas C. Thrush, Esq., 1655 Lafayette St., Ste. 204, Denver, CO 80218 (For the Claimant)
Richard A. Bovarnick, Esq. Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., Ste. 400, Denver, CO 80227 (For the Respondents)
BY: _______________________