W.C. No. 4-777-882.Industrial Claim Appeals Office.
November 5, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated June 9, 2010, that denied the claimant’s claim for permanent partial disability (PPD) benefits. We affirm.
On May 15, 2008 the claimant suffered an admitted industrial injury to her left hand when she was pushing a cart and the cart struck an object and bounced back. The claimant was examined by Dr. Wallace on May 16, 2008 who diagnosed a hand contusion. X-rays taken of the hand were negative. An EMG was performed on August 8, 2008 which showed a moderate to severe left cubital tunnel syndrome and a very mild left carpal tunnel syndrome.
On January 27, 2010 a Division-sponsored independent medical examination (DIME) was performed. The DIME physician stated that he was unable to assign a mechanism of injury to explain the patient’s carpal and cubital tunnel syndrome in regard to her May 15, 2008 injury. However, the DIME physician noted that the patient did not have any other known history to explain her neurologic dysfunction. The DIME physician determined that the claimant had a 19 percent impairment of the left upper extremity.
Dr. Fall opined that the medically documented work injury was a left-hand contusion which did not cause, aggravate, accelerate or exacerbate the EMG documented findings. Dr. Fall concluded that the DIME physician erred and did not comply with the Division of Workers’ Compensation (DOWC) Level II training with regard to medical causation.
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The ALJ found the opinions of Dr. Fall were more persuasive than those of the DIME physician. The ALJ concluded that the claimant had failed to prove by a preponderance of the evidence that she suffered any permanent medical impairment as a result of the admitted May 15, 2008 work injury.
The claimant appeals contending in her petition to review that the ALJ erred in his decision that the respondents were held to a preponderance of the evidence standard when they sought to overcome the DIME physician’s opinion regarding an extremity injury. The claimant has not filed a brief in support of her petition to review, which limits the effectiveness of our review. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo. App. 1986). However, the claimant did file a Position Statement with the ALJ in which she set forth her arguments on the issue, as we understand it to be, currently under appeal. The claimant did not provide a transcript of the hearing and, therefore, we must presume that the ALJ’s factual findings are supported by the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo. App. 1988). However, it does not appear that there is any factual dispute.
The ALJ noted the claimant’s argument that the burden of proof should be on the respondents to prove by clear and convincing evidence that the causation determination made by the DIME physician was incorrect. However, the ALJ citing Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App.1998) an Delaney v. Industrial Claim Appeals Office 30 P.3d 691 (Colo. App. 2000) determined that where the impairment is subject to scheduled awards in § 8-42-107(2) the clear and convincing burden of proof does not apply and the usual preponderance burden of proof applies for the claimant to prove entitlement to benefits. Here there appears to have been no dispute at the hearing over whether the impairment was limited to a schedule award. Further, there was no dispute as to whether the claimant had reached maximum medical improvement.
The courts have noted that scheduled and non-scheduled impairments are treated differently under the Act for purposes of determining permanent disability benefits. See Egan v. Industrial Claim Appeals Office, supra. In Egan the court noted that requiring causation questions to be challenged through a DIME applies only to injuries resulting in whole person impairment, but when a dispute concerning causation is in a case involving only a scheduled impairment, the ALJ will continue to have jurisdiction to resolve that dispute. In Delaney v. Industrial Claim Appeals Office supra, the Colorado Court of Appeals in discussin Egan stated the following:
In particular, the procedures of § 8-42-107(8)(c), which states that a DIME finding as to permanent impairment can be overcome only by clear and convincing evidence and that such finding is a prerequisite to a hearing on
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permanent impairment, have been recognized as applying only to non-scheduled impairments.
While it may be argued that the statements made by the court i Egan and Delaney constitute dicta, we nevertheless find these statements to be at the very least persuasive authority. We further note that the ALJ’s determination is consistent wit Cassius v. Entegris, W.C. No. 4-732-489 (March 26, 2010). I Cassius the ALJ concluded that the claimant suffered only a scheduled injury and we determined that the statutory scheme requiring clear and convincing evidence to challenge the DIME physician’s opinion on causation was not applicable.
We are not persuaded to depart from the reasoning in Egan an Delaney. Therefore, in our opinion the clear and convincing standard does not apply to an opinion of a DIME physician on medical causation where the stipulated injury is on the schedule of injuries.
IT IS THEREFORE ORDERED that the ALJ’s order issued June 9, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
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AMB JANITORIAL SERVICES, INC., Attn: CINDY SMITH, DENVER, CO, (Employer).
INDEMNITY CARE ESIS INC., Attn: ANITA FRESQUEZ-MONTOYA, TAMPA, FL, (Insurer).
LAW OFFICE OF WILLIAM A. ALEXANDER, JR., PC, Attn: WILLIAM A . ALEXANDER, JR., ESQ., COLORADO SPRINGS, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK, PC, Attn: RICHARD BOVARNICK, ESQ., DENVER, CO, (For Respondents).
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