W.C. No. 4-676-410.Industrial Claim Appeals Office.
December 4, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated July 22, 2009 that denied the claimant’s request to strike the respondents’ final admission of liability. We affirm.
The claimant injured his shoulder on August 16, 2005. He was placed at maximum medical improvement on May 23, 2007; however, Dr. Richman conducted a Division-sponsored independent medical examination on August 29, 2007 and determined that the claimant required additional testing. Dr. Richman therefore determined that the claimant had not reached maximum medical improvement. The respondents filed a general admission consistent with Dr. Richman’s report, which was attached to the admission.
Dr. Richman later determined that the claimant reached maximum medical improvement on November 9, 2007 and sustained permanent impairment. He prepared a report that consisted of a summary sheet and a three-page narrative, but no worksheets. The respondents filed a final admission of liability on April 4, 2008. The claimant did not object to the admission or apply for a hearing and his claim closed on May 4, 2008. Attached to the final admission of liability was Dr. Richman’s summary sheet and three-page narrative.
The claimant applied for a hearing to contest the validity of the final admission and have the admission stricken. Dr. Richman testified that he did not complete any range of motion worksheets and opined that using only the claimant’s range of motion
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deficits would not adequately address the claimant’s impairments. Dr. Richman therefore did not complete or attach to his report any worksheets addressing the claimant’s range of motion. Moreover, the Division of Workers’ Compensation notified Dr. Richman that his report was complete.
The claimant asserted that the final admission of liability was invalid because it did not have attached to it any range-of-motion worksheets. The ALJ credited Dr. Richman’s testimony and determined that the final admission of liability included an attached and completed copy of Dr. Richman’s report and was therefore sufficient to close the claim.
The claimant maintains on appeal that the final admission of liability filed by the respondents is of no effect because it failed to attach rating worksheets. We are not persuaded that the ALJ erred by denying the claimant’s request to strike the respondents’ final admission of liability.
Section 8-43-203(2)(b)(II), C.R.S. 2009 provides that a final admission “predicated upon medical reports” must be accompanied by such reports. The claimant cites the panel’s decision o McCotter v. U.S. West Communications, Inc., W.C. No. 4-430-792 (March 25, 2002) in support of his contention that the rating physician’s report attached to a final admission must include the physician’s rating worksheets. I McCotter, the panel noted that the statute governing final admissions was “designed to promote intelligent decision making by claimants,” thereby requiring the term “medical reports” to be “broadly construed so as to favor completeness.” The panel concluded that a final admission had to attach not only the rating physician’s worksheet, but the physician’s complete report, including the physician’s narrative report.
The claimant argues that the respondents failed to attach to their final admission the rating worksheets completed by Dr. Richman. However, the ALJ found that the respondents’ final admission of liability included as an attachment Dr. Richman’s complete report. In addition, the ALJ credited Dr. Richman’s testimony that he did not complete range-of-motion worksheets as part of his report. The record does not include a transcript of the hearing and we must therefore presume the pertinent findings of fact are supported by substantial evidence. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo. App. 1988). It follows that the respondents attached a complete medical report to their final admission of liability.
The claimant further asserts that Dr. Richman was required to use range-of-motion worksheets as provided by the American Medical Association Guidelines to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides). See, e.g., Table 53 of AMA Guides at 81. We are not persuaded that the rating physician must
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prepare ratings worksheets for attachment to a final admission where, as here, the physician does not use such worksheet calculations in rendering his impairment rating. See Aguilar v. Colorado Flatwork, Inc., W.C. No. 4-741-897 (August 3, 2009) (upholding final admission without nonexistent worksheets).
Moreover, even if we assume that Dr. Richman failed to comply with the AMA Guides by not preparing a worksheet, in our opinion this would not vitiate the FAL. In resolving the issue of whether a DIME physician’s rating has been overcome by “clear and convincing evidence,” the ALJ may consider the factual question of whether the DIME physician properly applied the AMA Guides and other rating protocols. See Metro Moving Storage Co. v. Gussert, 914 P.2d. 411 (Colo. App. 1995). Here the claimant was put on notice of the basis for admitted or denied liability. Therefore, the claimant was in a position to make an informed decision whether to challenge the FAL.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 22, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
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BLAIR HARRISON, 3246 INSPIRATION DRIVE, COLORADO SPRINGS, CO, (Claimant).
DUNMIRE PROPERTY MANAGEMENT, INC., COLORADO SPRINGS, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLILNG, ESQ., DENVER, CO, (Insurer).
ALEXANDER AND RICCI, PC, Attn: WILLIAM A ALEXANDER, JR., ESQ., COLORADO SPRINGS, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN LLC, Attn: DAVID L SMITH, ESQ., DENVER, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: ROBERT ERICKSON, ESQ./AMANDA CROCKER, DENVER, CO, (Other Party).