W.C. No. 4-326-355.Industrial Claim Appeals Office.
November 19, 2010.
FINAL ORDER
The respondents seek review of an Order on Remand of Administrative Law Judge Henk (ALJ) dated July 7, 2010, that ordered the respondents to pay permanent partial disability benefits based upon a whole person impairment rating of 15 percent. We affirm.
This matter was previously before us. In an order dated July 21, 2009 the ALJ ordered that the claimant had sustained permanent medical impairment equal to zero percent of the whole person. The ALJ also ordered the claimant’s attorney to pay attorney fees and costs to the respondents’ attorney because the former had endorsed an issue that was not ripe at the time the application for hearing was filed. On December 30, 2009 we issued an Order of Remand reversing the award of attorney fees and setting aside the ALJ’s order concluding that the claimant sustained permanent impairment equal to zero percent of the whole person. Following the remand the ALJ entered the order under review here.
No further hearings were held. On remand the ALJ entered findings of fact that for purposes of this order may be summarized as follows. The claimant sustained a work-related injury to his back on January 30, 1997, following which he was treated and reached maximum medical improvement on February 20, 1997. He voluntarily terminated his employment on January 29, 1998, without having lost any time from work on account of the injury. He began work for another employer, D D Metal Products, and worked for approximately two years before resigning because he believed he was unable to do the job.
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The ALJ further found that a hearing was held before ALJ Jones on November 20, 2003, who determined that the claimant’s condition at that time, which included cervical facet syndrome, was causally related to his compensable injury. Dr. Bainbridge then became the authorized treating physician and stated that the claimant reached maximum medical improvement on April 13, 2006 with 20 percent whole person impairment. However, Dr. Bainbridge stated that the claimant’s cervical radiculitis and his facet syndrome resulted either from his work at D D Metal Products or from an occurrence at the claimant’s home.
The ALJ also found that the claimant underwent a Division-sponsored independent medical examination (DIME), which was performed by Dr. Mitchell. She reported that the claimant reached maximum medical improvement with whole person impairment equal to 15 percent. However, Dr. Mitchell also reported that numerous of the claimant’s conditions were caused by degenerative changes and were not related to the compensable injury. The respondents filed a final admission of liability admitting for benefits based upon the 15 percent impairment rating. The respondents reserved the right in the final admission “to challenge relatedness of permanent impairment if Claimant objects to this admission.”
The ALJ then observed that our previous order held that ALJ Jones’ previous order should have barred relitigation of the question of the cause of the claimant’s cervical conditions. The ALJ then noted that she was bound by ALJ Jones’ previous determination and she concluded that the claimant’s permanent partial disability was equal to the DIME’s 15 percent impairment rating.
The respondents appealed and essentially argue that our previous Order of Remand was erroneous both regarding the issue preclusion question and the question of attorney fees for the claimant’s endorsement of an issue that was allegedly not ripe. However, we are unpersuaded to reconsider our order in any of its respects. The ALJ complied with the remand and accordingly we affirm her order. Our legal analysis on both the question of issue preclusion and of attorney fees is set forth in our previous order and it is unnecessary for us to repeat it here. We adhere to the reasoning contained in the previous order.
IT IS THEREFORE ORDERED that the ALJ’s order issued July 7, 2010 is affirmed.
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INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
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DOUGLAS YOUNGER, 6500 E 88TH AVENUE #29, HENDERSON, CO, (Claimant).
MERRITT EQUIPMENT COMPANY, Attn: STAN RASSMUSSEN, HENDERSON, CO, (Employer).
FIREMAN’S FUND INSURANCE COMPANY, Attn: AGNES ADAMS, SACRAMENTO, CA, (Insurer).
IRWIN BOESEN PC, Attn: CHRIS L INGOLD, ESQ., DENVER, CO, (For Claimant).
DWORKIN, CHAMBERS, WILLIAMS,, Attn: DAVID J DWORKIN, ESQ., C/O: YORK, BENSON EVANS PC, DENVER, CO, (For Respondents).
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