W.C. No. 4-756-491.Industrial Claim Appeals Office.
August 11, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated April 15, 2010, that determined the Division-sponsored independent medical examination (DIME) was complete. We affirm.
The respondent admitted compensability of an injury to the claimant’s left shoulder. The claimant returned to modified duty with his left arm in a sling. After the claimant began performing modified employment he complained of right shoulder pain. Dr. Ogrodnick placed the claimant at maximum medical improvement for his left shoulder on August 19, 2008 and opined that the claimant’s right shoulder problems were not work related.
The claimant requested a DIME. The DIME physician agreed that the claimant was at MMI for his left shoulder injury and that the claimant incurred an impairment rating of 16 percent for his left shoulder. In his report the DIME physician opined that the claimant had a right shoulder rotator cuff problem which was caused by overusing his right arm because he could not use his left arm from surgery, but did not indicate whether the claimant was at MMI for the right shoulder and did not assign an impairment rating. However, at his deposition and again at the hearing the DIME physician testified that the claimant’s right shoulder was not at MMI.
The ALJ determined that the DIME physician’s assessment of the claimant’s right shoulder symptoms as related to the claimant’s work-related left shoulder injury were clearly erroneous. The ALJ found that the DIME was complete and denied the claimant’s request to have the DIME declared to be unfinished. The ALJ found that the claimant had reached MMI for his work-related left shoulder injury and granted the
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claimant a scheduled impairment rating of 16 percent left upper extremity. The ALJ further found that the respondent had to overcome the DIME physician’s opinion by clear and convincing evidence concerning the claimant’s right shoulder being a component of the work-related injury. The ALJ denied and dismissed all claims for the right shoulder condition.
The claimant appeals contending that the ALJ erred and abused his discretion in reaching the conclusion that he had jurisdiction over the issues raised by a report issued by the DIME physician despite the claimant’s assertion that the DIME process had not been completed. The claimant asserts that although an examination took place the DIME process was not “complete” because the DIME physician had concluded that the claimant’s right shoulder condition was causally related to his industrial injury and subsequently failed to address the issue of MMI or impairment of the right shoulder as endorsed in the application for a DIME. The claimant argues that the DIME physician is required as a matter of law to address these issues.
The ALJ disagreed with the claimant’s allegation that the DIME was not complete because the DIME physician did not provide an opinion on MMI for the claimant’s right shoulder condition. The ALJ, citing Lambert Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656 (Colo. Ap. 1998), noted that opinions of the DIME physician stated in his subsequent deposition should be considered, together with the initial report, as part of the DIME physician’s finding for the purposes of § 8-42-107(8)(c) C.R.S. The ALJ found that the DIME physician’s initial report did not state a position on MMI for the right shoulder, but in his deposition and at trial the DIME physician testified that the claimant had not reached MMI for the right shoulder. The ALJ determined that taken together, the DIME report and the subsequent testimony completed the DIME process because the DIME physician had opined on the issue of MMI for all components of the injury. The ALJ found that the DIME physician’s ultimate finding was that the claimant had reached MMI for the left shoulder condition with a 16 percent scheduled impairment but that the claimant had not reached MMI for his right shoulder condition.
Therefore, the ALJ determined that the respondent bore the burden of proving the right shoulder condition was not a component of the compensable injury by clear and convincing evidence. The ALJ found that the respondent had carried that burden and the opinion of the DIME physician had been overcome by clear and convincing evidence.
The claimant argues that the DIME process was incomplete depriving the ALJ of subject matter jurisdiction. The claimant contends the line of cases, including Lambert Sons, Inc. v. Industrial Claim Appeals
Office, relied upon by the ALJ does not confer jurisdiction on the ALJ in cases of an incomplete DIME, but merely stands for the proposition that all written reports, subsequent opinions including the DIME physician’s
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testimony are to be considered in determining the DIME physician’s true opinion. The claimant, citing the testimony of Dr. Ogrodnick and Dr. Rook, argues that because the DIME physician did not take a position on MMI for the right shoulder he violated the Level II Training Accreditation Manual and the directives of the Division’s Independent Medical Examination Unit. Therefore the claimant concludes that the ALJ abused his discretion when he concluded the DIME process was complete because the DIME physician had addressed MMI for all components related to the claimant’s industrial injury. The claimant also contends that the ALJ failed to address the evidence regarding whether he had jurisdiction to resolve the issue given the claimant’s assertion that the DIME process was not complete.
Here there is no suggestion that the DIME physician’s report was not accepted by the Division of Workers’ Compensation. The Director of the Division of Workers’ Compensation (Director) issues interpretive bulletins to provide guidance regarding the practical applications of the Act. Peabody v. Select Medical Corporation, W.C. No. 4-677-703 (June 08, 2009). The Director issued Interpretive Bulletin 1 concerning administration of the DIME procedure under § 8-43-203(2)(b)(II). Ratnecht v. Kettle River Corporation, W. C. No. 4-547-777 (June 18, 2004). Interpretive Bulletin 1 advises that the Division reviews all DIME reports. If the report contains the required components the Division issues a Notice of Completion to the parties that the report has been accepted and may be considered final. Peabody v. Select Medical Corporation supra. The Division advises that the time frame for responding to the DIME results does not begin to run until the Division notifies the parties that the DIME report is complete and final. The Division’s expressed intent is to prevent the filing of multiple hearing applications by holding the process in abeyance pending completion of the DIME on disputed issues of MMI and whole person impairment. Because we view the Director’s informal interpretation of the statute to be consistent with the legislative intent, we consider it persuasive. See Banner Advertising v. People, 868 P.2d 1077 (Colo. 1994).
The Director’s Interpretive Bulletin is also consistent with Rule of Procedure 11-4(C), 7 Code Colo. Reg. 1101-3, which states that 11-4(C) services rendered by a DIME physician shall conclude upon acceptance by the Division of the final DIME report. See Kennedy v. AAA Concrete Contracting, W. C. No. 4-506-797 (September 12, 2003) (unless record shows to contrary it is presumed the Division reviewed a DIME report for completion and compliance with the Rules and determined that the report was complete). Rule 11-4(C) further provides that a DIME report is final for the purpose of this section 11-4(C) of this rule, when it includes the requested determination regarding MMI and/or final impairment rating worksheets. Here, the record does not indicate the DOWC rejected the DIME physician’s report as incomplete or inadequate under the rules of procedure, including Rule 11. Thus, on this state of the record, we infer the DOWC concluded the DIME physician substantially complied with the requirements of Rule 11
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and the issue was properly before the ALJ for resolution. See Carlson v. Informatics Corporation, W.C. No. 4-380-302 (November 1, 2002), (the Panel concluded that the DOWC’s notice of completion is dispositive of whether the issues of MMI and medical impairment are ripe for adjudication).
Here there was a dispute regarding whether the DIME process was complete and if the ALJ was deprived of subject matter jurisdiction. Rule of Procedure 11-10 provides that disputes concerning the DIME process that arise in individual cases that cannot be resolved by agreement of the parties may be taken to an administrative law judge for resolution. That is what occurred here and the ALJ made a determination that at the time the matter was submitted to him the DIME process was complete. The ALJ found that the DIME physician’s initial report along with his deposition and trial testimony addressed MMI for all components of the injury. As noted by the respondent the clarification offered by Dr. Parks in his deposition and at the hearing was the result of “approved communication” between the parties and the DIME physician under Rule 11-6.
Section 8-42-107(8)(c) provides that when there is a dispute arising concerning the finding of the DIME physician on MMI or on medical impairment a hearing shall not take place until the finding of the DIME physician has been filed with the Division. Here the report from the DIME physician was filed with the Division. Although it appears that originally the DIME physician in his written report failed to take a position on MMI for the right shoulder, that oversight had been corrected by the time the matter was submitted to the ALJ for determination. Therefore, we perceive no error in the ALJ’s determination that the DIME was complete. Additionally, the ALJ properly placed the burden on the respondent as the party seeking to overcome the DIME physician’s opinion on the causal connection of the right shoulder condition with the industrial injury by clear and convincing evidence. Section 8-42-107(8)(c), C.R.S.; Wilson v. Industrial Claim Appeals Office 81 P.3d 1117 (Colo. App. 2003); Tonjes v. Aurora Public Schools, W. C. No. 4-483-443 (October 29, 2003).
The claimant requests that we issue an Order of Remand to the ALJ for entry of additional findings of fact and conclusions of law to resolve the issue of whether the ALJ had jurisdiction to address whether the DIME could be overcome based upon the claimant’s assertion that the DIME process was not complete. We perceive no basis for such a remand. It is clear what the opinions of the DIME physician are. The ALJ’s consideration of the DIME physician’s deposition and hearing testimony in determining the DIME physician’s opinions is consistent with Lambert Sons, Inc. v. Industrial Claim Appeals Office. It is equally clear what the ALJ’s determinations were regarding the effort to overcome the opinions of the DIME physician.
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We conclude that any failure by the DIME to originally comply with the precise requirements of Rule 11 does not require setting aside the ALJ’s order. Insofar as the claimant asserts the DIME physician did not take a position on MMI for the right shoulder the ALJ found that the DIME physician’s initial report along with his deposition and trial testimony addressed MMI for all components of the injury and the DIME process was complete. Because this issue is factual in nature, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. §8-43-301(8), C.R.S.; See Wackenhut Corp. v. Indus. Claim Appeals Office, 17 P.3d 202, 204 (Colo.App. 2000) (whether the DIME physician correctly applied the AMA Guides is a question of fact for determination by the ALJ). We note that the standard of review requires us to view the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving Storage Co. v. Gusset, 914 P.2d 411 (Colo. App. 1995). In our view the ALJ’s finding is supported by substantial evidence in the record.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 15, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_____________________________ John D. Baird
_____________________________ Thomas Schrant
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TROY OLSON, COLORADO SPRINGS, CO, (Claimant).
STEVEN U. MULLENS, PC, Attn: RICHARD M. LAMPHERE, ESQ., COLORADO SPRINGS, CO, (For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: DOUGLAS A. THOMAS, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).
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