Opinion
W.C. No. 4-604-130.
June 8, 2006.
FINAL ORDER
The respondents and the claimant seek review of two orders of Administrative Law Judge Jones (ALJ) dated October 24, 2005 and March 2, 2006. The ALJ entered an order dated October 24, 2005, in which she concluded that the claimant had failed to overcome the report of the Division-sponsored independent medical examination (DIME), and in which she awarded permanent partial disability benefits based upon the apportioned rating of the DIME report. Both the claimant and the self-insured employer filed petitions to review that order. The respondent argued that the ALJ erred in concluding that a motor vehicle accident incurred by the claimant did not constitute an intervening event severing the causal connection between his industrial injury and his impairment. The claimant argued that the ALJ erred in concluding that he had failed to overcome the DIME report. He further argued that he therefore should have been awarded permanent partial disability benefits based upon an unapportioned impairment rating. On March 2, 2006 the ALJ entered a Supplemental Order, concluding that the claimant had overcome the DIME report and awarding permanent partial disability benefits based upon the unapportioned impairment rating. The respondent petitioned to review the Supplemental Order, and argued that because it was entered more than thirty days from the date the briefs were filed it was void. We vacate the Supplemental Order dated March 2, 2006 and affirm the order dated October 24, 2005.
Hearings were held in this matter on the issues of the cause of the claimant's cervical impairment and his entitlement to permanent partial disability benefits. Following the hearings the ALJ entered the order dated October 24, 2005, containing findings of fact that may be summarized as follows. On March 23, 2003 the claimant injured his neck in a compensable accident, when he lunged to assist a man who was about to fall on an escalator. He received medical treatment and, on April 15, 2003 was referred to Robert Kawasaki, M.D., who examined him on April 18, 2003. Suspecting at that time that the claimant had herniated a cervical disc, Dr. Kawasaki referred the claimant for a course of physical therapy, ordered an MRI, and imposed lifting restrictions. The MRI was performed on April 22, 2003, and disclosed significant degenerative changes with stenosis at two levels of the cervical spine. On April 25, 2003 the claimant was involved in a motor vehicle accident in which his car was struck from behind by a vehicle traveling approximately 30 mile per hour. The accident caused pain and stiffness in the neck, radicular symptoms in the right arm, symptoms in the left arm, and an aggravation of low back symptoms. Dr. Kawasaki opined that fifty percent of the need for medical treatment was attributable to the motor vehicle accident and fifty percent to the compensable injury. The claimant received further medical treatment, including epidural steroid injections, and eventually underwent surgery that fused two levels of the cervical spine. In March 2004 Dr. Kawasaki stated that the claimant's condition caused by the motor vehicle accident had resolved and that his continuing problems were attributable to the compensable injury. He underwent another surgery in August 2004 and was placed at maximum medical improvement on January 11, 2005. Ranee Shenoi, M.D. performed a DIME and reported that the claimant sustained permanent impairment equal to 25 percent of the whole person, with 50 percent attributable to the motor vehicle accident and 50 percent attributable to the compensable injury.
Based on the findings entered in her order of October 24, 2005, the ALJ concluded that the claimant failed to overcome by clear and convincing evidence the report of the DIME. Accordingly, she awarded permanent partial disability benefits based upon the apportioned rating of the DIME.
As noted, both parties appealed and the ALJ entered a supplemental order dated March 2, 2006 and mailed to the parties on March 7, 2006. Although many of the findings of fact in the supplemental order were identical to those in the earlier order, the ALJ entered significantly different findings concerning the opinions of the DIME physician, Dr. Shenoi. The ALJ noted that the DIME doctor had not reviewed pertinent medical records and that the persuasiveness of her opinions was undermined by that failure as well as by other factors. The ALJ expressly rejected the opinions of the DIME physician and concluded that the claimant had overcome her report by clear and convincing evidence. Accordingly, the ALJ awarded permanent partial disability benefits based upon the unapportioned impairment rating.
I.
The respondents appealed the supplemental order and argue that it was not entered within the time period set forth in § 8-43-301(4), C.R.S. 2005. That statute provides that a briefing schedule shall be issued once the record is complete, giving notice to the petitioner that a brief in support of the petition to review is due in twenty days and to the opposing party that a brief in opposition is then due twenty days after the date of the certificate of mailing of the petitioner's brief. The statute then states that "[a]fter the briefs are filed or the time for filing has run, the director or administrative law judge shall have thirty days to enter a supplemental order or transmit the file to the industrial claim appeals office for review."
Here the parties stipulated and the record reflects that the briefing schedule was issued on December 20, 2005, providing the petitioner with twenty days to file a brief and the opposing parties with twenty days after the brief's certificate of mailing to file an opposing brief. The briefs were therefore scheduled to be filed by January 30, 2006, and the ALJ then had thirty days until March 1, 2006 within which to enter a supplemental order. Therefore, the order dated March 2, 2006, and mailed on March 7, 2006, was not entered within the thirty days provided for in § 8-43-301(4). Accordingly, the ALJ was without jurisdiction to enter that order and it is void.
The claimant argues that, given the ALJ's clear ruling rejecting the DIME physician as unpersuasive, it would be "greatly unfair" to vacate the supplemental order based upon a "mere procedural rule." However, it is well established that the time period within which to enter a supplemental order is jurisdictional, and the ALJ's failure to enter the order within thirty days transfers jurisdiction to the Industrial Claim Appeals Office. Hillebrand Construction Company v. Worf, 780 P.2d 24 (Colo.App. 1989). The ALJ's jurisdiction to enter a supplemental order is purely statutory and may not be conferred by waiver, consent, or any other equitable principle. Gardner v. Friend, 849 P.2d 817 (Colo.App. 1992). We are aware that the court of appeals has stated that the legislative intent in workers' compensation proceedings is that principles of finality often yield to considerations of fairness and justice. E.g., Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996). However, this principle was applied in the context of reopening a final award, and has not been invoked to confer jurisdiction where it has otherwise been divested by the Act. Hence, whatever the merits of the claimant's argument that the ALJ's reconsidered opinion should in fairness be given effect, she was without jurisdiction to enter the supplemental order. Accordingly, the supplemental order is void and the parties' appeals of the order dated October 24, 2005 is presently before us.
II.
As noted, both parties appealed the order dated October 24, 2005. The respondents argue that the ALJ erred in finding that the claimant's subsequent motor vehicle accident was not an "efficient intervening event" that severed all connection between his impairment and the industrial injury. The claimant argues that the ALJ erred in concluding that he failed to overcome the DIME physician's apportionment of impairment between the industrial injury and the subsequent motor vehicle accident. We are unpersuaded that the ALJ committed reversible error in her October 24, 2005 order.
A.
The respondents contend that the ALJ applied an incorrect legal standard in concluding that the motor vehicle accident did not constitute an efficient intervening event. They argue that the ALJ's finding that the motor vehicle accident caused fifty percent of the claimant's permanent disability compelled the further conclusion that "as a matter of law" it permanently aggravated the claimant's condition and relieved them of liability for any permanent impairment.
We have previously held that the question of whether a particular condition represents a natural progression of the industrial injury or is the result of an efficient intervening cause is one of fact for determination by the ALJ. Lutgen v. Teller County School District No. 2, W.C. No. 3-846-454 (June 12, 1996), aff'd., Teller County School District No. 2 v. Industrial Claim Appeals Office, (Colo.App. No. 96CA1194, December 27, 1996) (not selected for publication). It is only where reasonable minds can draw but one inference that the issue of causation becomes one of law. Schrieber v. Brown Root Inc., 888 P.2d 274 (Colo.App. 1993).
Because the issue is one of fact, we must uphold the ALJ's order if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2005. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). Where medical experts render conflicting opinions concerning the issue of causation, resolution of such conflicts is a matter for the ALJ. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Further, we may not find testimony is incredible as a matter of law unless it is rebutted by hard, certain evidence. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000). Testimony is not incredible as a matter of law merely because it is biased, inconsistent, or conflicting. People v. Ramirez, 30 P.3d 807 (Colo.App. 2001).
Here, we disagree with the respondents' contention that the finding that fifty percent of the claimant's impairment was caused by the motor vehicle accident compelled the conclusion that it severed the causal connection between all of the claimant's impairment and the industrial injury. In our view that argument confuses principles of compensability with those relevant to the payment of benefits based on permanent partial disability. In arguing that "[a]n aggravation of a prior condition is the equivalent of a new injury" the respondents invoke the principle of compensability that may render a subsequent employer liable for an aggravation of a pre-existing condition. However, as the ALJ correctly recognized, the present question is one of causation, specifically of permanent impairment. The respondents' argument notwithstanding, that fifty percent of the claimant's impairment resulted from the motor vehicle accident does not relieve the respondents from their liability for the fifty percent of the impairment attributable to the industrial injury.
B.
The claimant argues that the combination of Dr. Kawasaki's report of his April 18, 2003 examination of the claimant and the failure of the DIME physician to have reviewed this report compels the conclusion that her DIME report was incorrect. However, the claimant's argument goes only to the weight afforded to the competing medical opinions and does not compel the conclusion that the DIME physician's report was incorrect.
Section 8-42-107(8)(c), C.R.S. 2005, provides that the DIME physician's finding of medical impairment is binding unless overcome by clear and convincing evidence. "Clear and convincing" evidence has been defined as evidence which demonstrates that it is "highly probable" the DIME physician's rating is incorrect. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998) ; Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). The special weight afforded the DIME physician's rating includes the DIME physician's opinion on apportionment under § 8-42-104(2)(b), C.R.S. 2005. ("When benefits are awarded pursuant to section 8-42-107, an award of benefits for an injury shall exclude any previous impairment to the same body part."); Public Service Co. of Colorado v. Industrial Claim Appeals Office, 40 P.3d 68 (Colo.App. 2001). We must uphold the ALJ's determination that the claimant failed to overcome Dr. Shenoi's medical impairment rating if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2005. Application of the substantial evidence test requires that we defer to the ALJ's resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the evidence. Accordingly, the scope of our review is narrow. Metro Moving Storage Co. v. Gussert, supra.
Here the medical evidence is subject to highly conflicting inferences on the cause and severity of the claimant's permanent impairment. Moreover, the ALJ is free to credit all, part or none of a medical expert's testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). Under these circumstances the ALJ could, and did, reasonably infer that the medical evidence reflects differences of opinions, and she was unpersuaded that the claimant had proved that the DIME physician's medical impairment rating was unmistakably or highly probably incorrect. See Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979) (clear and convincing is evidence which is unmistakable and is free from serious or substantial doubt). We have no authority to reweigh the medical evidence and interfere with the ALJ's conclusions concerning the probative value of the competing expert testimony. Despite the existence of evidence in the record from which the ALJ might have drawn contrary inferences, her findings are amply supported by the testimony of Dr. Shenoi and by the DIME report. Accordingly, we perceive no basis on which to disturb the order.
IT IS THEREFORE ORDERED that the ALJ's order dated March 2, 2006 is vacated.
IT IS FURTHER ORDERED that the ALJ's order dated October 24, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
Eric Scott, Denver, CO, United Airlines, Denver, CO, Jenny Beck, Gallagher Bassett Services, Inc., Englewood, CO, Jordan S. Levine, Esq., Denver, CO, (For Claimant).
Lynn P. Lyon, Esq. and T. Paul Krueger, II, Esq., Denver, CO, (For Respondents).