Opinion
W.C. No. 4-693-447.
December 20, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) dated July 22, 2007 that determined the claimant suffered no permanent impairment as a result of the industrial injury. We affirm.
The ALJ's pertinent findings of fact are as follows. While working for the employer, the claimant felt pain in his back when he was exiting a truck on April 18, 2006. The respondent admitted liability. One of the claimant's authorized treating physicians placed the claimant at maximum medical improvement without any permanent impairment. The claimant requested a Division-sponsored independent medical examination (DIME). The DIME physician issued a 21 percent combined permanent impairment rating for the claimant's thoracic and lumbar injuries. However, the ALJ found the DIME physician rated the claimant under a legal misconception. The DIME physician believed that apportionment was not appropriate because the claimant was not assigned an impairment rating for his earlier injuries with the same employer. The ALJ determined that the rating doctor should exclude any previous permanent impairment to the same body part, as it existed at the time of the subsequent injury, if there was objective evidence that the claimant had permanent impairment from a prior injury at the time of the subsequent injury. The ALJ found that the DIME physician failed to follow the law on exclusion of previous impairment and apportionment, and he rejected the DIME physician's impairment rating. The ALJ credited the opinions of Dr. Primack who testified that the DIME physician's permanent impairment rating of the claimant was wrong because apportionment of the claimant's preexisting conditions was not only appropriate but also was required. Dr. Primack testified that apportionment is required regardless of whether or not the claimant worked for the same employer or received prior impairment ratings. Dr. Primack opined that there was no serious injury to the spine as a result of the April 18, 2006 accident. The ALJ found the respondent had overcome the findings of the DIME physician regarding the permanent impairment rating by clear and convincing evidence. The ALJ concluded that the claimant suffered no permanent impairment as a result of the work-related injury.
The petition to review contains a number of allegations of error. However, the claimant has not filed a brief in support of his petition to review and, therefore, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
In his petition to review, the claimant contends the ALJ erred in determining he had jurisdiction to determine the issue of permanent impairment. The claimant argues apportionment, which is an affirmative defense, was not plead by the respondents in their application for hearing. Therefore, the claimant argues the ALJ was deprived of subject matter jurisdiction to consider respondent's issue of apportionment. We disagree.
In our view, the ALJ had jurisdiction over the issue of permanent impairment. Here the ALJ found, with record support, that after receiving the DIME report the employer filed an application for hearing and endorsed the issue of permanent partial disability benefits and "Overcome DIME" but not the issue of apportionment.
In general, apportionment is an affirmative defense, which must be explicitly pleaded. See Kersting v. Industrial Commission, 39 Colo. App. 297, 567 P.2d 394 (1977) Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (Colo. 1991); Drywall Products v. Constuble, 832 P.2d 957 (Colo.App. 1991). However, under the peculiar circumstances of this case we are not convinced that the issue of apportionment had to be separately set forth in the pleadings. In our opinion, the question of whether the DIME physician properly applied the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides) regarding apportionment constituted an inherent element of the respondent's attempt to overcome by clear and convincing evidence the DIME physician's opinion regarding the claimant's permanent impairment rating. Moreover, the claimant makes no argument that he was denied the right to procedural due process. Counsel for the claimant admitted there was no surprise or lack of notice on the issue of apportionment. Tr. at 11. We find no error in the ALJ's consideration of the respondent's evidence that the DIME physician improperly applied the AMA Guides by failing to consider apportionment.
In any event assuming that apportionment under the circumstances of this case was an affirmative defense, the claimant waived any objection to the respondent's failure to plead apportionment as an affirmative defense. At the hearing, the claimant initially argued that the failure to endorse the issue of apportionment deprived the ALJ of jurisdiction to determine the permanent partial impairment issues, which involved an allegation that the DIME physician erred because he failed to apportion. Tr. 4. The ALJ suggested that the hearing be continued so the parties could properly research the law on these arguments and the ALJ could ensure that the parties had sufficient notice on the issue of permanent partial disability benefits, which involved the DIME physician's decision not to apportion part of the claimant's permanent impairment to the claimant's prior work-related injuries. Tr. 13-14. The claimant then withdrew his objection regarding employer's failure to endorse apportionment as an issue and agreed to go forward on the issue of whether the employer could overcome the DIME physician's findings based on employer's contention that the DIME physician erred because he failed to apportion. Tr. 18-19.
Where a party fails to plead an affirmative defense the opposing party may waive the objection. See Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987); Crist v. Booth Land Livestock W. C. No. 4-357-502 (April 09, 1999). Here the waiver was the product of a voluntary, knowing and intelligent action. See Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); American National Bank v. Etter, 28 Colo.App . 511, 476 P.2d 287 (1970). Therefore, despite the claimant's arguments, in our opinion the ALJ was not deprived of subject matter jurisdiction to consider respondent's issue of apportionment.
The claimant also contends the ALJ erred as matters of fact and law in finding the employer overcame the findings of the DIME physician regarding the permanent impairment rating. We disagree.
Pursuant to § 8-42-107(8)(c), C.R.S. 2007, the medical impairment rating of the DIME physician is binding on the parties unless overcome by clear and convincing evidence. The statute requires that the DIME physician rate the claimant's impairment in accordance with the AMA Guides. The party challenging the DIME physician's rating carries the burden of proof to overcome the rating. Lambert and Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656 (Colo.App. 1998). The questions of whether the DIME physician properly applied the AMA Guides to determine the rating, and whether the DIME physician's rating has been overcome by clear and convincing evidence, are generally questions of fact for determination by the ALJ. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The ALJ noted in his order the correct legal standard regarding overcoming the finding of the DIME physician. Conclusion of Law ¶ 6 at 8. The respondents presented the testimony of Dr. Primack who testified that he had three board certifications in rehabilitation medicine and teaches in the Level II accreditation program conducted by the Division of Workers' Compensation. Tr. at 79. Dr. Primack testified that the DIME physician's failure to apportion the claimant's permanent impairment rating was erroneous in several respects. Dr. Primack testified that the DIME physician mistakenly believed that an apportionment was not appropriate in part because the claimant continued to work for the same employer. He further testified that one critical factor in apportioning previous impairment is the existence of evidence from which to document the prior impairment. In the present case Dr. Primack opined that there was ample evidence from which to infer that the claimant suffered from preexisting impairment to his spine. Tr. at 86-87 92. Moreover, Dr. Primack explained at some length the application of the AMA Guides and Division guidelines to the rating process, Tr. at 88-90, and when questioned whether in his view the applicable standards resulted in "an apportionable number," he replied in the affirmative. Tr. at 90. The ALJ found Dr. Primack's opinions were plausible and expressly credited those opinions. Dr. Primack's testimony constitutes ample evidence supporting the ALJ findings. Additionally, the ALJ applied the correct legal standard to his weighing of the competing medical evidence. In this regard he noted that apportionment of prior permanent partial impairment is authorized by § 8-42-104, C.R.S 2007, as well as by Rule of Procedure 12-3. As noted, he credited Dr. Primack's testimony that there was objective evidence in this case permitting apportionment of the claimant's preexisting impairment and contrary to the claimant's argument we perceive no factual or legal error in his order. We have reviewed the claimant's additional arguments and they do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ's order dated July 22, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
LANCE HANSFORD, AURORA, CO, (Claimant).
SOUTH METRO FIRE RESCUE DISTRICT, Attn: CHRISTINE REXACH, CENTENNIAL, CO, (Employer).
JANICE M GREENING, LLC, Attn: JANICE M GREENING, ESQ., ENGLEWOOD, CO, (For Claimant).
DWORKIN, CHAMBERS WILLIAMS, PC, Attn: DAVID DWORKIN, ESQ., DENVER, CO, (For Respondents).
CTSI, Attn: LESLIE CAVANAUGH, DENVER, CO, (Other Party).