Opinion
W.C. No. 4-351-883
December 26, 2001
ORDER OF REMAND
Employer, and SELF-INSURED, Insurer, Respondent.
The respondent seeks review of an order of Administrative Law Judge Wheelock (ALJ) which awarded temporary disability benefits. We set aside the order and remand the matter for further proceedings.
On October 20, 1995, the claimant suffered an admitted industrial injury which was initially diagnosed as a cervical strain. The claimant was placed at maximum medical improvement (MMI) on January 22, 1996.
The claimant alleged he developed an occupational disease between April 1995 and February 1996 from "twisting his neck while running machinery." The respondent filed a final admission of liability for medical benefits up to January 22, 1996. The claimant objected and requested a Division-sponsored independent medical examination (DIME) on the issue of MMI. By order of ALJ Harr, the DIME physician was also directed to address the issue of "causation."
On August 30, 1999, the DIME physician, Dr. Ridings, reported the claimant presented complaints of right neck pain and muscle tightness. Dr. Ridings diagnosed torticollis either caused by idiopathic focal dystonia or work-related chronic myofascial pain. He added:
"I believe it does fall within medical probability that the patient's complaints are distinctly related to overuse and muscle strain at work in 1995. It is certainly possible that this is, on the other hand, presentation of an idiopathic dystonia. The latter, however, I consider a diagnosis of exclusion in this situation."
Accordingly, Dr. Ridings opined the claimant was not at MMI and recommended aggressive physical therapy for treatment of the myofascial pain. However, he opined that the failure of the recommended treatment would be a "good indication that this is, indeed a focal dystonia" which is unrelated to the claimant's employment.
The respondent provided the additional treatment recommended by Dr. Ridings. However, the respondent denied the claimant's request for temporary disability benefits.
The claimant subsequently filed an application for hearing on the issues of medical and temporary total disability benefits. The respondent endorsed the issue of "relatedness of cervical condition to Claimant's work at Western Forge." (January 31, 2001 Response to Application for Hearing.)
At the hearing, the claimant presented the testimony of Dr. Rawat who opined the claimant suffered from torticollis. Dr. Rawat also stated that he released the claimant from work effective January 5, 2001, because the claimant's employment aggravated the cervical condition. (Tr. p. 10).
The respondent then sought to introduce evidence the claimant was released from work due to non-industrial focal dystonia. The claimant objected on grounds Dr. Ridings determined the claimant's cervical problems were work-related and the respondent waived any challenge to Dr. Ridings' opinion by failing to apply for hearing to overcome the DIME opinion. (Tr. pp. 15-21).
The ALJ determined Dr. Ridings opined the claimant's complaints were directly related to overuse and muscle strain at work in 1995. Furthermore, the ALJ implicitly determined the respondent waived the right to challenge Dr. Ridings' opinions. (Tr. 26, 28). Therefore, the ALJ sustained the claimant's objection to the respondent's presentation of evidence that the claimant's disability was caused by an idiopathic condition unrelated to the employment.
Based on the testimony of Dr. Rawat and the DIME report, the ALJ also determined the claimant is entitled to temporary total disability benefits commencing January 5, 2001. However, the ALJ reserved for future determination the issue of whether cervical surgery is reasonable and necessary to cure the effects of the industrial condition/injury.
On review, the respondent contends the ALJ erroneously determined Dr. Ridings opined that the claimant's cervical dystonia was caused by the industrial injury. The respondent also contends the ALJ erred as a matter of law in determining the respondent was collaterally estopped from presenting evidence on the issue of causation. Further, the respondent contends the ALJ erred in awarding temporary disability benefits where the cause of the claimant's cervical pathology was reserved for future determination. We conclude the ALJ erroneously precluded the respondent's presentation of evidence on the issue of causation, and therefore remand the matter for further proceedings.
I.
Initially, we note that the respondent's Designation of Record includes the "entire Division of Labor file." The record transmitted to us on appeal apparently does not include the complete Division of Workers' Compensation file. However, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the respondent requested the ALJ to consider the entire Division of Workers' Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(7), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers' Compensation file, but restricted our review to the record made at the hearing.
We also note the claimant's Motion to Strike the respondent's brief in support of the petition to review on grounds the brief was untimely filed. We deny the Motion.
A briefing schedule was established on September 13, 2001, which required the respondent's brief in support of the petition to review to be filed by October 3, 2001. However, on October 2, the respondent filed a motion for an extension to October 8, 2001 to file its supporting brief. The claimant contends that because the order granting the respondent's motion for extension was not granted until October 16, 2001, the respondent's brief was untimely filed. We disagree.
In City County of Denver v. Phillips, 166 Colo. 312, 443 P.2d 379, 382 (1968), the court rejected an argument that an order extending the time to file a petition to review is invalid unless it is issued within the statutory period for filing the petition. In support, the court stated that the statute which governs the time for filing does not require that an order granting additional time to file a petition to review must be:
"sought and obtained prior to the expiration of the extended time within which to file the petition to review. And we are disinclined to judicially establish such a strict rule of procedure where, as here, the request for additional time was filed before the expiration of the extended time theretofore granted by the referee."
There is no appreciable distinction between the facts presented here and the facts presented in the City County of Denver v. Phillips, supra. Therefore, we conclude the respondent's October 8 brief in support of petition to review was timely filed even though the ALJ's order granting the respondent's motion for an extension of time to October 8, 2001, was not signed until October 16, 2001. We have considered the brief, and will address the respondent's contentions.
II.
In workers' compensation claims, the claimant has the initial burden to prove his entitlement to benefits. Once the claimant has presented evidence sufficient to establish a prima facie case, the burden of going forward shifts to the employer and its insurer to rebut the claimant's evidence or to establish that the claim lacks merit. Rockwell International v. Turnbull, 802 P.2d 1182, 1184 (Colo.App. 1990).
To establish entitlement to temporary disability benefits, the claimant must prove: 1) the industrial injury caused a disability, and 2) the disability was the proximate cause of the temporary wage loss. For purposes of temporary disability benefits, a "disability" exists when the claimant is unable to fully or efficiently perform the duties of his pre-injury employment. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995); see also McKinley v. Bronco Billy's, 903 P.2d 1239 (Colo.App. 1995).
Here, the claimant requested the hearing on the issue of temporary disability benefits. To establish entitlement, it was the claimant's initial burden to prove the industrial injury caused a disability and that the industrial disability caused him to leave work. Consequently, we reject the claimant's contention that "causation" was not before the ALJ for adjudication. Rather, the claimant had the initial burden to prove his wage loss was caused by the industrial injury. This was true regardless of whether the respondent expressly endorsed the issue of "causation."
Former § 8-42-107(8)(b)(III), C.R.S. 1997 [amended in 1998 for injuries occurring on or after August 5, 1998], provides that the DIME physician's findings on the issue of MMI are binding unless the party challenging the DIME physician's opinions presents "clear and convincing evidence" to overcome the DIME physician's findings. Further, the courts have determined that because the DIME physician's opinions concerning the cause or causes of a claimant's need for additional treatment are an inherent part of the diagnostic assessment which comprises the determination of MMI, the DIME physician's opinions on the cause of the need for additional treatment are binding unless overcome by clear and convincing evidence. See Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998); Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998); Lissauer v. Arapahoe House, W.C. No. 4-208-121 (November 26, 1997), aff'd., Arapahoe House v. Industrial Claim Appeals Office, Colo. App. No. 97CA2132, July 9, 1998 (not selected for publication). This is true because MMI is defined as the point in time 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." Section 8-42-201(11.5), C.R.S. 2001. Accordingly, a determination that the claimant has not reached MMI necessarily reflects the DIME physician's opinion that the need for additional medical treatment is caused by the industrial injury. Thus, insofar as a party seeks to overcome the DIME physician's opinion on causation, the party is subject to the "clear and convincing" standard of proof.
Section 8-42-107.2(4), C.R.S. 2001, provides that within 30 days of receiving the DIME physician's report, the respondent must either file an admission of liability consistent with the opinion of the DIME physician or request a hearing to contest one or more of the DIME physician's findings. However, § 8-42-107.2 only applies to injuries occurring on or after the June 4, 1998. See Colo. Sess. Laws, Ch 313, at 1432. Therefore, that statute is not applicable to this claim. Rather, the ALJ's findings reflect a determination that the respondent waived any challenge to the DIME physician's opinions on causation by failing to apply for a hearing on the issue of MMI.
A challenge to the DIME physician's opinions on the issue of MMI constitutes an affirmative defense to the respondent's liability for additional medical and temporary disability benefits. As such, the defense may be waived by a voluntary, knowing and intelligent action on the part of the respondent. See Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988). The claimant's arguments notwithstanding, the record does not support the conclusion the respondent waived its challenge to the DIME report.
There was a direct conflict between the parties concerning the meaning of Dr. Ridings' DIME report. (Tr. pp. 23, 24). The respondent argued Dr. Ridings diagnosed the claimant with cervical dystonia, chronic myofascial pain and spinal pathology, and opined that only the chronic myofascial pain was causally related to the employment. (Tr. pp. 17-18, 27). The claimant argued Dr. Ridings related all of the claimant's cervical symptoms to the employment. (Tr. p. 17).
Where the DIME report is subject to conflicting inferences, the exact meaning of the DIME report on MMI is a question of fact for resolution by the ALJ. See Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996). We must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001.
Here, the ALJ acknowledged Dr. Ridings' report was subject to conflicting interpretation. (Tr. pp. 25-27). Within her prerogative as the fact finder, the ALJ resolved the conflict in favor of the claimant and found that Dr. Ridings believed the claimant's cervical complaints including the cervical dystonia were directly related to overuse and muscle strain at work in 1995. (Tr. pp. 25, 28); see also CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev'd on other grounds at 783 P.2d 269 (1989) (the ALJ's oral findings may be considered in interpreting the ALJ's written findings). The ALJ's findings reflect a plausible interpretation of the DIME report, and therefore are binding on review. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998) .
Our conclusions are consistent with Lambert Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656 (Colo.App. 1998), where a hearing was scheduled on the issue of permanent medical impairment following the completion of a DIME. The court concluded the ALJ did not err in the first instance by determining as a matter of fact that the DIME physician assigned a 12 percent whole person impairment rating. Consequently, the court held the ALJ properly required the party disputing the 12 percent rating to present "clear and convincing" evidence that the rating was wrong. Ibid at 659.
It follows that insofar as the respondent sought to prove the claimant had non- industrial cervical dystonia, and that the dystonia was the cause of the claimant's temporary wage loss, the respondent was required to present clear and convincing evidence to overcome Dr. Ridings' opinions to the contrary. However, the respondent did not know until the ALJ announced her interpretation of the DIME report that it would have to contest that portion of the report. Under these unique circumstances, the respondent could not have knowingly waived its right to contest the DIME opinion until the ALJ determined the meaning of the DIME report. Consequently, the ALJ's implicit determination that the respondent waived any challenge to the DIME report was error and the ALJ erroneously precluded the respondent from presenting evidence to overcome Dr. Ridings' opinion that all of the claimant's cervical complaints are causally related to the claimant's employment. (Tr. 28). Therefore, we conclude the award of temporary disability benefits must be set aside and this matter must be remanded for further proceedings to afford the respondent an opportunity to present evidence on the issue of causation.
In view of this remand, we need not consider the respondent's remaining arguments concerning its contention that the ALJ erroneously adjudicated the claim for temporary disability benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated May 23, 2001, is set aside, and the matter is remanded to the ALJ for additional proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
Copies of this decision were mailed December 26, 2001 to the following parties:
David Gurule, 1610 W. 18th St., Pueblo, CO 81003
Mary Ortmeier, Western Forge, 4607 Forge Rd., Colorado Springs, CO 80907
Brice Berkeland, Crawford Co., 4570 Hilton Pkwy., #202, Colorado Springs, CO 80907
Steven U. Mullens, Esq., 1401 Court St., Pueblo, CO 81003 (For Claimant)
Carol A. Finley, Esq., 111 S. Tejon St., #700, Colorado Springs, CO 80903 (For Respondent)
BY: A. Pendroy