Opinion
W.C. No. 4-572-036.
June 23, 2006.
FINAL ORDER
The respondents seek review of an order dated January 27, 2006 of Administrative Law Judge Mattoon (ALJ) that awarded the claimant a higher scheduled rating then admitted to by the respondents without a Division-sponsored independent medical examination (DIME). We affirm.
The claimant sustained a compensable occupational disease. The claimant worked as an assembler for the employer which required that she wipe down bottles and torque the lids shut eight to twelve hours per day, five days per week. The authorized treating physician (ATP) placed the claimant at maximum medical improvement (MMI) and gave the claimant a permanent impairment rating for carpal tunnel syndrome (CTS) and forearm pain. The ATP assigned the claimant a one percent right arm at the shoulder impairment rating and a one percent mental impairment rating for reactive depression.
The respondents filed a final admission of liability (FAL) admitting for a one percent mental impairment rating, zero percent for the left arm at the shoulder and a one percent scheduled permanent impairment rating for the right CTS. The claimant objected to the FAL. No DIME was requested.
The claimant arranged for an independent medical evaluation (IME). The IME physician's impression was overuse syndrome/repetitive motion injury with bilateral CTS status post-release, possible radial tunnel compression, lateral epicondylitis, myofascial pain of the upper extremities and cervicothoracic area and mild mood disturbance. The IME physician disagreed with the ATP's opinion and opined that the claimant suffered a cumulative trauma disorder while working for the employer. The IME physician assigned the claimant a 26 percent arm at the shoulder permanent impairment rating for each side. He agreed with the ATP's one percent mental impairment rating.
The ALJ found the opinion of the IME physician to be persuasive. The ALJ found the claimant suffered an overuse syndrome/entrapment neuropathy due to her work for the employer and awarded permanent impairment ratings of 26 percent of each arm at the shoulder.
On appeal the respondent argues that the ALJ erred as a matter of law by finding that the claimant is entitled to 26 percent of each upper extremity because it allows for the circumvention of the DIME procedure by the claimant. The claimant argues that under Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998), causation cannot be determined by the ALJ without a DIME and moreover, the treating physician who determined MMI controls issues of causation when no DIME occurs. We disagree.
DIME provisions do not apply to the rating of scheduled injuries. See Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998) Hence, where the impairment rating attributable to a scheduled injury is in dispute, the claimant is not required to obtain a DIME to challenge an admission but may set the matter for a hearing at which the extent of permanent impairment may be litigated. McCormick v. Exempla Healthcare W.C. No. 4-594-683 (January 27, 2006).
The question of whether the claimant's industrial injury caused any component of her upper extremity medical impairment, in this case involving a scheduled injury, is one of fact for determination by the ALJ. Egan v. Industrial Claim Appeals Office, supra. Thus, we must uphold the ALJ's order if supported by substantial evidence in record. Section 8-43-301(8), C.R.S. 2005. Cudo v. Blue Mountain Energy Inc. W.C. No. 4-375-278 (May 4, 2000.) The treating physician's opinions are not entitled to any special weight on the question of whether the claimant suffered a compensable injury. Lapean v. Aon Innovative Solutions W.C. Nos. 4-474-545; 4-540-403 July 21, 2003. Indeed, the courts have declined to extend the DIME provisions to initial compensability determinations. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002) (DIME physician's opinion concerning whether or not condition worsened so as to justify reopening not entitled to "special weight" under DIME procedure); Westerkamp v. Target Stores, W.C. No. 4-408-369 (December 26, 2001). Rather, the claimant bears the initial burden to prove by a preponderance of the evidence that she sustained an injury arising out of and in the course of his employment. Whether the claimant met this burden of proof is a question of fact for the ALJ. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000).
The respondents next contend that the claimant was barred from proceeding to a hearing because a DIME is a jurisdictional prerequisite to the ALJ's adjudication of the claimant's medical impairment unless the injury is "purely" on the schedule. The respondents argue that the present claim involves a psychological component in addition to the scheduled injury, meaning the present case is not "purely" a scheduled impairment case. We agree with the ALJ that a mental impairment rating is to be compensated separately, without combining or adding to the scheduled and non-scheduled ratings.
In Dillard v. Industrial Claim Appeals Office of State of Colo., 134 P.3d 407, (Colo. 2006) the court noted that prior to 1999, the act allowed workers who suffered both scheduled and nonscheduled injuries to combine their scheduled and nonscheduled injuries into one formula award. Mountain City Meat Co. v. Oqueda, 919 P.2d 246, 253 (Colo. 1996). Added in 1999, subsections 8-42-107(7)(b)(I) to (III), C.R.S. (2005), ended this system and mandated in the calculation of permanent partial disability benefit compensation that each type of injury shall remain separate and be compensated solely on the basis of applicable statutory schedule or benefit formula. The General Assembly added to the statute in this 1999 amendment a legislative declaration that provides for mental and emotional distress to be compensated under a different provision of the act and (2) prohibits such impairments from being combined with a scheduled or a nonscheduled injury. Ch. 103, sec. 1, § 8-42-107, 1999 Colo. Sess. Laws 298, 299. Thus, the ALJ correctly determined that since the claimant contested only the impairment rating of a scheduled injury admitted to by the respondents, and not the mental impairment rating, a DIME physician's opinion, was not necessary.
IT IS THEREFORE ORDERED that the ALJ's order dated January 27, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________________ John D. Baird
__________________________________ Thomas Schrant
Tonya Hernandez, Express Personnel, Pueblo, CO, American Home Assurance, c/o Gallagher Bassett Services, Inc., Englewood, CO, John V. FitzSimons, Esq., Pueblo, CO, (For Claimant).
James B. Fairbanks, Esq., Denver, CO, (For Respondents).