Opinion
W.C. No. 4-449-355
November 27, 2002
FINAL ORDER
The claimant and the respondents seek review of an order of Administrative Law Judge Jones (ALJ). The claimant contends the ALJ erred in permitting the respondents to pay a portion of his benefits to the Colorado Family Support Registry (CFSR) to defray the claimant's child support obligation. The respondents contend the ALJ erred in finding the claimant overcame the Division-sponsored independent medical examination (DIME) physician's failure to assign an impairment rating for the claimant's low back. We affirm the order in part and set it aside in part.
I.
The facts pertinent to the claimant's petition to review are undisputed. The claimant sustained an injury to his neck, low back, and right shoulder on January 13, 2000. Commencing in February 2000, the respondents began paying 55 percent of the claimant's temporary total disability (TTD) benefits to the CFSR pursuant to an administrative lien. On January 29, 2001, the claimant was placed at maximum medical improvement (MMI) by the treating physician and assigned a 16 percent whole person rating for cervical impairment. The respondents sought a DIME on the issue of impairment, but continued to pay TTD benefits.
On August 15, 2001, the claimant underwent a DIME, and was assigned a 14 percent whole person impairment rating. On September 26, 2001, the respondents filed a final admission of liability (FAL) admitting liability for permanent partial disability (PPD) benefits in the amount of $25,166.06, commencing January 30, 2001. The FAL also states that between January 30, 2001, and September 26, 2001, the respondents overpaid the claimant and CFSR $11,054.93 in TTD benefits, and the respondents were taking a "credit" for this amount against the PPD benefits. The FAL also stated the respondents "are paying 55% of claimants [sic] PPD rate to the" CFSR.
The claimant argued to the ALJ that the respondents improperly reduced the PPD benefits by paying them to CFSR. The claimant reasoned that the current version of § 8-42-124(6), C.R.S. 2002, which subjects PPD payments to an administrative lien for court-ordered child support, is inapplicable to this claim for a January 2000 injury. The claimant further argued that the TTD payments made after January 29, 2001, are not subject to offset because they were, in actuality, PPD payments.
The ALJ ruled the May 31, 2001, amendment to § 8-42-124(6), which first subjected PPD benefits to the child support lien, is a "procedural" change to the method of paying benefits. Consequently, the ALJ ruled the statutory change is applicable to PPD benefits after May 31, 2001, and ordered the respondents to comply with the statute by paying 55 percent of the PPD benefits to the CFSR. The ALJ further ruled the benefits paid between January 29, 2001, and the filing of the FAL were TTD benefits, and the respondents were entitled to recoup the entire amount as an offset against PPD.
On review, the claimant argues the change to § 8-42-124(6) was substantive rather than procedural. Consequently, the claimant argues the May 31, 2001, amendment does not apply to this claim and the ALJ erred in permitting the respondents to reduce his PPD benefits by making payments to the CFSR. We agree with this argument.
On May 31, 2001, the General Assembly amended § 8-42-124(6) by adding PPD as a type of permanent disability benefit subject to the child support lien. Prior to that date only permanent total disability (PTD) benefits were subject to the lien. The amendment contained no effective date. 2001 Colo. Sess. Laws, ch. 214, pp. 720-724.
Because the legislation contains no directive concerning the effective date of the statutory change, we apply the traditional rule that procedural changes are applicable to existing claims while substantive changes are applied prospectively from the date of passage. Rosa v. Industrial Claim Appeals Office, 885 P.2d 331 (Colo.App. 1994). Further, substantive rights and liabilities in a workers' compensation case are governed by the law in effect on the date of the injury. Diversified Veterans Corporate Center v. Hewuse, 942 P.2d 1312 (Colo.App. 1997); Kinninger v. Industrial Claim Appeals Office, 759 P.2d 766 (Colo.App. 1988).
We disagree with the ALJ that the May 2001 change to § 8-42-124(6) statute was purely procedural. Substantive statutes "create, eliminate, or modify vested rights or liabilities, while procedural statutes relate only to remedies or modes of procedure to enforce such rights or liabilities." Shell Western E P, Inc. v. Dolores County Board of Commissioners, 948 P.2d 1002, 1012 (Colo. 1997). In our view, a claimant's right to receive PPD benefits free from administrative liens is substantive in nature, and modification of the right substantially reduces the value of PPD benefits by eliminating the claimant's freedom of choice concerning disposition of the benefits. This conclusion is supported by In re Marriage of Hamby, 954 P.2d 635 (Colo. 1997), where the court considered a prior version of § 8-42-124(6) which limited garnishment to PTD benefits. The court concluded that under the plain language of that statute PPD benefits could not be garnished. Although the court expressed "sympathy" for the argument that it was unreasonable to permit garnishment of PTD but not PPD benefits, it found a justification for this result in the legislative history. The court stated the following:
An explanation for this seemingly anomalous result is contained in the proceedings before the Senate Judiciary Committee discussing the bill amending 8-24-124(6). There, Senator Wells explained that he thought permanent partial disability benefits were too low to be subject to child support garnishment. Delinquent funds, he reasoned, could be collected from an employee's earnings, in the future, when he or she returned to work. 954 P.2d at 637.
Thus, the legislative purpose behind the prior statute, which exempted PPD benefits from garnishment, was to ensure that workers receiving PPD benefits had enough income to meet their essential needs without regard to child support obligations. This concern goes beyond remedial issues and relates to matters of public policy involving the personal welfare of injured workers and children alike. Indeed, the legislative history cited in Hamby supports the conclusion that the General Assembly recognizes that the question of whether or not PPD benefits are subject to a lien involves an important question regarding the value of the benefits to the worker. Presumably, the General Assembly was aware of the Hamby decision when it enacted the May 2001 amendment to § 8-42-124(6), and has adopted a new policy placing the interests of the children ahead of those of the injured worker. See Dependable Cleaners v. Vasquez, 883 P.2d 583 (Colo.App. 1994) (legislature presumably aware of pertinent judicial interpretations when amending a statute). However, the fact the policy views of the legislature have changed does not alter the essentially substantive nature of the issue. Cf. Rosa v. Industrial Claim Appeals Office, supra (statutory change which reduced social security offset against workers' compensation death benefits was substantive and could not be applied in case where death occurred before the statutory change).
In reaching this conclusion we take note of an "Interpretive Bulletin" issued by the Director of the Division of Workers' Compensation (Director) on February 20, 2002, concerning the applicability of the May 2001 amendment to § 8-42-124(6). This bulletin, published on the Director's website, was issued after consultation with the Division of Child Support Enforcement, Department of Human Services. The bulletin states that it is the "position of the Colorado Division of Child Support Enforcement that the new law affects only claimants whose date of injury occurred on or after May 31, 2001." (Emphasis in the original). Although the bulletin contains no legal analysis to support this conclusion, we accord it some weight since the bulletin expresses the interpretation of executive officials charged with enforcement of the statute and, as we have held, is not inconsistent with any clearly stated intent concerning the applicability of the 2001 amendment. Public Airport Authority v. Centennial Express, 956 P.2d 587, 592 (Colo. 1998) (discussing circumstances under which court may or may not defer to informal administrative opinion letters); Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (deference to be accorded administrative interpretation of statute if interpretation is not inconsistent with clear language of statute or legislative intent).
It follows that the ALJ erred insofar as she authorized the respondents to "deduct the appropriate sums" from the PPD award and pay them to the CFSR. Under the law applicable to this claim for a January 2000 injury, the claimant's PPD award may not be subjected to garnishment or lien for the purpose of paying court-ordered child support.
II.
The claimant also argues the $11,054.93 in TTD benefits paid between January 29, 2001 (the date of MMI), and prior to the filing of the FAL were actually PPD benefits. Therefore, the claimant argues the ALJ erred in allowing the respondents to take credit for the portion of the benefits which the respondents paid to the CFSR. We reject this argument.
It is certainly true that MMI marks the line of demarcation between temporary disability and permanent disability, and that PPD benefits are payable from the date of MMI. Section 8-40-201(11.5), C.R.S. 2002; § 8-42-107(8)(d), C.R.S. 2002; Monfort Transportation v. Industrial Claim Appeals Office, 942 P.2d 1358 (Colo.App. 1997). However, it does not follow that all payments which respondents make after the date of MMI are to be classified as PPD payments for purposes of § 8-42-124(6).
Kemper v. LPR Construction, W.C. No. 4-225-874 (December 14, 2000), is a case in which we rejected a theory similar to the claimant's contention in this case. In Kemper, the respondents sought review of a Director's order which held that post-MMI TTD benefits paid under an admission of liability were, in effect, PPD benefits not subject to garnishment under the pre-2001 version of § 8-42-124(6), and Hamby. However, we held the respondents' payment of TTD benefits after MMI was a consequence of their legal inability to terminate TTD benefits until authorized to do so by the rules of procedure or an order of an ALJ. See Colorado Compensation Authority v. Industrial Claim Appeals Office, 18 P.d. 790 (Colo.App. 2000). Thus, we concluded the respondents should receive credit for payments to the child support registry which were made in connection with their legal obligation to pay post-MMI TTD benefits. Further, we noted that Rule of Procedure IV (G)(2), 7 Code Colo. Reg. 1101-3 at 5, provides that an insurer "shall receive credit against permanent disability benefits for any temporary disability benefits paid beyond the date of maximum medical improvement." Thus, the rules themselves contemplate that some post-MMI payments are, by nature, TTD benefits which may be "credited" against PPD benefits.
We see no basis for departing from our holding in Kemper, and find it is applicable here. As the respondents argue, the fact that they sought a DIME on the issue of impairment did not relieve them of the obligation to continue paying TTD benefits after MMI. This is true because they were not entitled to suspend the claimant's TTD benefits while awaiting completion of the DIME process and the assignment of an impairment rating. Rule of Procedure IV (G)(1), 7 Code Colo. Reg. 1101-3 at 5; Monfort Transportation v. Industrial Claim Appeals Office, supra. It would be unreasonable and unfair to require the respondents to make "TTD" payments to the claimant and CFSR in order to comply with the rules and the administrative lien, but subsequently treat the same payments as PPD benefits for purposes of determining the applicability of § 8-42-124(6) and the respondents' right to an offset. Thus, the ALJ's order was correct insofar as it permitted the respondents to claim a full offset for the TTD payments which respondents made after MMI.
III.
The respondents seek review of the ALJ's order insofar as the ALJ found the claimant overcame the DIME physician's refusal to assess any impairment for the claimant's low back. Essentially, the respondents argue the evidence does not support the ALJ's order. We disagree.
The DIME physician assessed a 14 percent whole person impairment for the claimant's injury-related cervical impairment, but nothing for the claimant's low back pain. With regard to the low back, the DIME physician stated that he did not believe the claimant had any impairment attributable to the industrial injury because the claimant had a "long history of low back pain" for which he previously received a 7 percent impairment rating. The DIME physician also noted the claimant's lumbar MRI was normal.
The claimant obtained an IME from Dr. Harder. In a report dated July 10, 2001, Dr. Harder assessed the claimant as suffering from a 13 percent whole person impairment of the lumbar spine. This rating consisted of 5 percent impairment for a specific disorder and 8 percent impairment for reduced range of motion. Dr. Harder attached worksheets documenting measurements of the reduced range of motion. However, in a subsequent deposition, Dr. Harder testified that he did not recall that in March 1991 he gave the claimant a 7 percent rating for impairment of the lumbar spine caused by a 1990 injury. The 1991 rating was based on a "specific disorder" impairment and did not include lost range of motion. Dr. Harder testified that he probably would not have given the 2001 rating if he realized he had issued the prior rating.
However, the ALJ found the claimant proved by clear and convincing evidence that the January 2000 industrial injury resulted in a 6 percent impairment of the lumbar spine. In support, the ALJ found that at the time of the January 2000 injury the claimant was performing heavy work without restriction. (Findings of Fact 4 and 5). After the 2000 injury the claimant was diagnosed with a low back strain, frequently reported low back pain to his physicians and was found to have restricted motion. Under these circumstances, the ALJ credited Dr. Harder's July 10 report that the claimant has a 13 percent impairment rating for the lumbar region. The ALJ also concluded the DIME physician failed to apply the AMA Guides because he did not "take" valid range of motion measurements of the lumbar spine. The ALJ awarded impairment based on 6 percent impairment of the lumbar spine because she concluded that 7 percent impairment was attributable to the preexisting condition. See § 8-42-104(2)(b), C.R.S. 2002.
The finding of a DIME physician concerning the claimant's medical impairment is binding unless overcome by clear and convincing evidence. This includes the DIME physician's determination of whether a particular component of the claimant's overall impairment was caused by the industrial injury. Section 8-42-107(8)(c), C.R.S. 2002; Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998).
Because the issue is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This is a narrow standard of review which requires us to defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The respondents argue that Dr. Harder's July 10 report does not constitute substantial evidence in support of the ALJ's order because at the deposition Dr. Harder retracted his opinion that the January 2000 injury caused any lumbar impairment. However, where testimony is internally inconsistent, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
It is true that Dr. Harder testified he was unwilling to attribute any lumbar impairment to the 2000 industrial injury when his attention was drawn to his 1991 rating. However, the ALJ did not find this retraction persuasive because the 1990 rating was only 7 percent, and the increase to 13 percent was not reasonably explained. Further, Dr. Harder's retraction of the 13 percent rating did not explain the claimant's ability to perform heavy work without restriction between 1996 and 2000. (Finding of Fact 18).
Similarly, Dr. Harder's July 10 report is not incompetent because it is based on assumptions found to be contrary to established fact. See High v. Industrial Commission, 638 P.2d 818 (Colo.App. 1981). It is true the report was issued before Dr. Harder recalled the 1991 rating. However, that does not change the facts that the 1991 rating was only 7 percent and that in July 2001 Dr. Harder recorded a 13 percent lumbar impairment. The explanation for this discrepancy is not an established fact, and the ALJ acted within her fact-finding authority in concluding the January 2000 injury caused the increased impairment documented by Dr. Harder's July 10 report.
The respondents argue the overwhelming weight of the evidence required the ALJ to find the claimant failed to overcome the DIME physician's refusal to rate lumbar impairment. In support, the respondents point out that all four physicians who rated the claimant declined to assign a rating for lumbar impairment. However, as pointed out, Dr. Harder's report and testimony are subject to conflicting inferences, particularly in light of the other evidence in the case. The ALJ resolved this inconsistency against the respondents and we may not interfere with that determination. Moreover, substantial evidence is not dependent on the number of witnesses appearing for or against a particular proposition. Jachetta v. Milano, 147 Colo. 100, 362 P.2d 1065 (1961).
The respondents argue that Conclusion of Law 10 and Finding of Fact 17 are conflicting. However, we understand the ALJ to have found that the AMA Guides require a physician to measure lumbar range of motion if the claimant sustained a lumbar injury. Because the ALJ found the January 2000 accident did cause a lumbar injury, she concluded the treating and DIME physicians erred by failing to take and record lumbar range of motion measurements. An ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra.
The claimant also disputes Finding of Fact 17 because it fails to mention the DIME physician stated that one of the reasons he declined to rate lumbar impairment was because the claimant had a normal MRI. However, the ALJ is under no obligation to discuss every piece of evidence, particularly if it is not found to be persuasive. Thus, the ALJ's failure to mention this particular detail in the findings of fact does not constitute error. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra.
The assertion that there is no evidence the AMA Guides require range of motion measurements if the claimant sustained a lumbar injury is without merit. This is a logical inference from Dr. Harder's July 10 report as well as the questioning of Dr. Lambden. (Tr. Pp. 51-52). In fact, the July 10 report states it is issued in accordance with the AMA Guides.
IT IS THEREFORE ORDERED that the ALJ's order dated April 8, 2002, is set aside insofar as it directs the respondents to deduct 55 percent of the claimant's PPD benefits for payment to the CFSR.
IT IS FURTHER ORDERED that the ALJ's order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________
David Cain
___________________________________
Robert M. Socolofsky
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed ________November 27, 2002____ to the following parties:
Mark W. McBride, 3347 Kearney St., Denver, CO 80209
Denver Mineral Engineers, Inc., P. O. Box 261633, Littleton, CO 80163-1633
American Compensation Insurance Company, c/o Beverly Abbate, RTW Colorado, Inc., P. O. Box 6541, Englewood, CO 80155-6541
Janet Frickey, Esq., 940 Wadsworth Blvd., 4th Floor, Lakewood, CO 80214 (For Claimant)
Douglas A. Thomas, Esq., and Merrily S. Archer, Esq., 600 17th St., #1600N, Denver, CO 80202 (For Respondents)
By: A. Hurtado