Opinion
W.C. No. 4-158-088
October 9, 1996
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Gandy (ALJ), insofar as the ALJ determined that the claimant did not sustain permanent medical impairment greater than twenty-five percent of the whole person, and therefore, denied a claim for additional permanent partial disability benefits. The claimant also contests the ALJ's order denying his request for future medical benefits. We affirm the award of medical impairment benefits, set aside the order denying further medical benefits, and remand the matter for entry of a new order on the issue of medical benefits.
It is undisputed that the claimant suffered compensable injuries to his back and left shoulder during an industrial accident on December 19, 1992. A treating physician, Dr. Duncan rated the claimant's permanent impairment from the shoulder injury as eleven percent of the left upper extremity, which equals seven percent whole person impairment. Another treating physician, Dr. Beard, rated the permanent impairment from the back injury as twelve percent of the whole person.
Dr. Hemler performed a Division-sponsored independent medical examination (IME), and rated the claimant's impairment from the shoulder injury as eleven percent of the left upper extremity, which equals seven percent whole person impairment. Dr. Hemler further opined that the claimant suffered nineteen percent whole person impairment due to the back injury. Using the "Combined Values Table, Page 254" of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides), Dr. Hemler reported that the claimant's total impairment equals twenty-five percent of the whole person.
The ALJ found that the claimant failed to overcome Dr. Hemler's impairment rating by "clear and convincing evidence" as required in § 8-42-107(8)(c), C.R.S. (1996 Cum. Supp.). In so doing, the ALJ rejected the claimant's argument that the shoulder and back impairments should have been "added" together instead of "combined" for purposes of calculating his total impairment. Therefore, the ALJ denied the claim for medical impairment in excess of benefits payable for impairment of twenty-five percent of the whole person.
I.
On review the claimant contends that the ALJ erred in failing to find that the claimant sustained permanent medical impairment of at least twenty-six percent of the whole person. The claimant argues that neither logic, nor the law nor the AMA Guides direct that multiple impairments be "combined" rather than "added." By analogy the claimant asserts that if the impairments had resulted from more than one industrial accident, they would not have been "combined" to produce a single impairment rating.
In response, the respondents argue that Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo 1996) is dispositive of the claimant's argument. We agree with the respondents.
In Mountain City Meat Co. v. Oqueda, supra, the Supreme Court stated that when a work-related accident results in at least one injury that is listed on the schedule, and at least one injury that is not listed on the schedule, the scheduled injury must be converted to a whole person impairment rating in accordance with the AMA Guides, so that all effects of the accident are compensated as a percentage of whole-person impairment. The court further held that because all medical impairment ratings must be in accordance with the AMA Guides, the rating physician shall use the AMA Guides to "combine" the whole person impairment ratings. Mountain City Meat Co. v. Oqueda, 914 P.2d at 254.
Here, it is undisputed that the claimant suffered at least one non-scheduled injury. Consequently, Mountain City Meat Co. controls. Thus, we agree with the ALJ that Dr. Hemler did not err in "combining" rather than "adding" the shoulder and back impairment ratings.
We also note that neither Dr. Duncan nor Dr. Beard rated the claimant's total impairment from the shoulder and back injuries. Moreover, the claimant did not present any evidence to refute Dr. Hemler's opinion the claimant's total impairment under the AMA Guides "Combined Value" tables equals twenty-five percent of the whole person. Under these circumstances, the ALJ could, and did, find that the claimant failed to overcome Dr. Hemler's opinion that the claimant's total impairment is twenty-five percent of the whole person. See Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995) (clear and convincing evidence is defined as evidence which demonstrates that it is "highly probable," the physician's rating is incorrect); Askew v. Industrial Claim Appeals Office, 914 P.2d 416 (Colo.App. 1995). Consequently, we must uphold the ALJ's determination that the claimant has sustained medical impairment of twenty-five percent of the whole person, and the claimant's remaining arguments do no alter our conclusion.
It is undisputed that the claimant's shoulder and back injuries resulted from the single industrial accident on December 19. Consequently, it is immaterial how the impairments would have been compensated had they resulted from more than one industrial accident.
Similarly, there is no finding or assertion that the claimant sustained more than one scheduled injury. Therefore, the claimant's reliance upon § 8-42-107(7)(a), C.R.S. (1996 Cum. Supp.) is misplaced. Section 8-42-107(7)(a) provides the method for calculating permanent partial disability benefits where the claimant sustains more than one scheduled injury. Mountain City Meat Co. v. Oqueda, 914 P.2d at 252.
II.
In view of the ALJ's determination that the claimant did not sustain medical impairment over twenty-five percent, the claimant concedes that he is subject to the benefit limitations set forth in § 8-42-107.5 C.R.S. (1996 Cum. Supp.). However, the claimant contends that § 8-42-107.5 violates constitutional protections to due process and equal protection. In so doing the claimant recognizes that the court rejected an equal protection challenge in Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). See also Donald B. Murphy Contractors, Inc., v. Industrial Claim Appeals Office, 916 P.2d 611 (Colo.App. 1995), cert. denied April 29, 1996. The claimant also implicitly recognizes that we lack jurisdiction to resolve his constitutional arguments. Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971); Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539 (Colo.App. 1995), cert. denied April 22, 1996. However, the claimant seeks to reserve his arguments for further review.
III.
On the issue of future medical benefits the ALJ found that:
"the claimant has the burden of establishing that he is entitled to such benefits, within a reasonable degree of medical probability. The medical records provided by the Claimant discuss only the possibility of further care for the claimant." (Emphasis in the original).
Therefore, the ALJ determined that the claimant failed to sustain his burden of proof, and denied the claimant's request for future medical benefits.
We agree with the claimant that the ALJ applied the wrong legal standard insofar as he required the claimant to prove his need for further medical treatment "within a reasonable degree of medical probability." However, we disagree that the claimant's assertion that the ALJ was required to determine whether the claimant presented "substantial evidence" of the need for further medical treatment.
The claimant bears the burden to prove his entitlement to benefits by a preponderance of the evidence. Section 8-43-201, C.R.S. (1996 Cum. Supp.); City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985); Valley Tree Service v. Jimenez, 787 P.2d 658 (Colo. App 1990) partially overruled on other grounds 823 P.2d 709 (Colo. 1992). Thus, the claimant is entitled to future medical benefits if the claimant proves that it is more probable than not that future medical treatment will be "reasonably necessary to relieve the [claimant] from the effects of the industrial injury." Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988); Industrial Commission v Jones, 688 P.2d 1116 (Colo. 1984). However, to the extent that the claimant presents medical evidence to satisfy his burden of proof, the expert medical opinion must be expressed "within a reasonable degree of medical probability." Ringsby Truck Lines, Inc. v. Industrial Commission, 30 Colo. App. 224, 491 P.2d 106 (1971).
In contrast, the "substantial evidence" standard governs appellate review of an award of future medical benefits. Specifically, the question on review is whether the ALJ's award is supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.); Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995). In determining whether the ALJ's order is supported by substantial evidence, we are bound by the ALJ's assessment of the sufficiency and credibility of the evidence including expert medical opinions. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Accordingly, the ALJ erred in requiring the claimant to prove his claim for future medical benefits "within a reasonable degree of medical probability." We also note Dr. Hemler's recommendation that the claimant:
"have access to a certified manual physical therapist up to ten sessions annually, for the next two years, to specifically treat the left SI joint impairment. It should be noted that the SI joint itself is contributing to some difficulties with his current employment specifically with the clutch activities required to drive on a full-time basis. This condition appears amenable to limited treatment with physical therapy, and I would not see the need for SI joint injection, arthrodesis, etc."
Because the ALJ applied the wrong legal standard, and the ALJ's factual determinations focus almost exclusively on Dr. Beard's recommendations, the ALJ's findings are insufficient for us to ascertain how the ALJ would have assessed the sufficiency and credibility of Dr. Hemler's opinion had the ALJ applied the correct legal standard. Consequently, we set aside the ALJ's order denying the claim for future medical benefits, and remand the matter to the ALJ for a redetermination of the request for Grover benefits under the applicable legal standard.
IT IS THEREFORE ORDERED that the ALJ's corrected order dated February 22, 1996, is affirmed insofar as the ALJ ordered the respondents to pay medical impairment benefits based upon permanent impairment of twenty-five percent of the whole person.
IT IS FURTHER ORDERED that the ALJ's order denying the claim for further medical benefits is set aside, and the matter is remanded to the ALJ for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed October 9, 1996 to the following parties:
Donne R. Jefferson, P.O. Box 1092, Loveland, CO 80539
Nor-Colo Transportation Co., P.O. Box 149, Evans, CO 80620-0149
Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
Thomas H. Moore, Esq., 425 W. Mulberry St., #112, Ft. Collins, CO 80521-2896 (For the Claimant)
BY: ______________________