Opinion
W.C. No. 4-177-604
April 23, 1998
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Gandy (ALJ), which awarded permanent partial disability benefits based on a nineteen percent whole person medical impairment. We affirm.
The ALJ found that the claimant sustained a compensable injury on June 30, 1993, when he was struck by a "bundle." The ALJ credited the claimant's testimony that the bundle pushed his "shoulder basically out of joint, and [his] neck." The claimant also testified that he noticed neck pain immediately after the injury. (Tr. p. 5).
Ultimately, the treating physician, Dr. Quick, placed the claimant at maximum medical improvement (MMI) on June 14, 1994. Utilizing the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides), Dr. Quick assessed a nineteen percent whole person impairment. This rating included impairment for the claimant's left upper extremity, as well as four percent impairment for the cervical region assessed under Table 53(II)(B) of the AMA Guides. Dr. Quick expressly stated that "no apportionment is recommended."
Despite this impairment rating, the respondents filed a Final Admission of Liability admitting for a scheduled impairment of seventeen percent of the left upper extremity. The claimant then sought a hearing requesting an award of whole person medical impairment benefits in accordance with Dr. Quick's overall rating. The respondents answered by taking the position that the ALJ should determine the factual question of whether the claimant's cervical impairment is causally connected to the June 30 industrial injury.
The ALJ ordered the respondents to pay permanent partial disability benefits in accordance with Dr. Quick's entire nineteen percent whole person impairment rating. In support, the ALJ found that the medical records show Dr. Quick prescribed, and the claimant received, treatment for his cervical condition. Moreover, the ALJ found that Dr. Quick's impairment rating "inherently states that the cervical condition and upper extremity condition which he rated and found appropriate to rate are directly related to claimant's injuries." Because the respondents failed timely to request an IME to dispute Dr. Quick's rating, the ALJ held that § 8-42-107(8)(c), C.R.S. 1997, precluded him from altering Dr. Quick's rating.
On review, the respondents contend that the ALJ erred in finding that he was bound by Dr. Quick's decision to rate the claimant's cervical impairment. In essence, the respondents argue that the issue of "causation" of the cervical impairment was not an issue to be determined by the treating physician, but a question of fact to be resolved by the ALJ. Moreover, the respondents assert that claimant carried the burden of proof, by a preponderance of the evidence, to establish that the cervical condition was related to the industrial injury. Under the circumstances present here, we disagree with the respondents' argument.
Section 8-42-107(8)(c) sets forth a comprehensive method for determining whole person medical impairment ratings for purposes of awarding permanent partial disability benefits. Once the claimant reaches MMI, the statute provides that the treating physician "shall determine the medical impairment rating" in accordance with the AMA Guides. If a party "disputes" the impairment rating assessed by the treating physician, the parties may agree on an Independent Medical Examiner (IME) to rate the impairment, or the Division will select an IME examiners whose impairment rating is binding unless overcome by clear and convincing evidence. Moreover, § 8-42-107(8)(c) provides that "a hearing on this matter shall not take place until the finding of the independent medical examiner selected by the director has been filed with the division."
As stated in Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995), this statutory scheme expressly provides that the treating physician "makes the initial determination of MMI and degree of impairment." In order to reduce litigation concerning the degree of impairment, the statute establishes the IME procedure to challenge the treating physician's rating. Finally, the statute contemplates that ALJs lack jurisdiction to determine the degree of medical impairment until such time as the "finding" of the IME physician has been filed with the Division. Cf. Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995) (under 8-42-107(8)(b), ALJ lacked jurisdiction to determine MMI until such time as an IME had been conducted in accordance with the statute).
Moreover, we have previously determined that the question of whether a particular component of the claimant's overall medical impairment was "caused" by the industrial injury is an inherent part of the rating process under the AMA Guides. See Shafer v. Midtown Occupational Health Services, W.C. No. 4-264-075 (March 10, 1998); Fisher v. University of Denver, W.C. No. 4-254-479 (September 10, 1997); Clem v. Qual-Med, Inc., W.C. No. 4-181-242 (August 11, 1997). The following language from our decision in Shafer v. Midtown Occupational Health Services, supra, is pertinent:
In Fisher, we observed that § 8-42-107(8)(c) provides that the impairment rating issued by the Division IME physician is "binding on the parties" unless overcome by clear and convincing evidence. Further, we stated that the question of whether a particular impairment is "causally related to the industrial injury is an inherent part of the IME physician's rating" process. This is true because the [AMA Guides], specifically provide that a physician must make an assessment of the cause or causes of the claimant's overall medical impairment, and state that the "existence of an impairment does not create a presumption of contribution by a factor with which the impairment is often associated." See AMA Guides, Chapter 2.2 p. 6-7; Askew v. Industrial Claim Appeals Office, 927 P.2d 1333, 1337 (Colo. 1996) (rating of overall medical impairment necessarily includes the decision to apportion impairment to prior causes). We also observed that permitting or requiring ALJs to conduct separate factual hearings concerning the cause of each element of a claimant's impairment rating (psychiatric or physical) would defeat the legislative purpose underlying § 8-42-107(8)(c). That provision was designed to reduce litigation concerning permanent partial disability, not encourage ALJs to conduct item by item evaluations of the "cause" of each aspect of an impairment rating. [Citation omitted].
Under § 8-42-107(8)(c), both the treating physician and an IME physician are required to utilize the AMA Guides. Therefore, a treating physician has an inherent responsibility to determine whether or not each element of an impairment rating is causally related to the industrial injury when determining the overall impairment rating.
It follows the ALJ correctly concluded that he lacked authority to interfere with Dr. Quick's nineteen percent whole person impairment rating. Dr. Quick purportedly relied on the AMA Guides, and indicated that his impairment rating was assessed in accordance with those guides. Because the AMA Guides required Dr. Quick to determine the cause or causes of the claimant's medical impairment, the issue of causation was necessarily considered by Dr. Quick. Moreover, § 8-42-107(8)(c) prohibited the ALJ from considering "disputes" concerning the validity of Dr. Quick's rating, including those related to "causation," unless an IME was conducted. Here, the respondents failed to request an IME, and the ALJ had no choice but to accept Dr. Quick's rating.
It is true, as the respondents argue, that the current statutory procedure for assessing medical impairment ratings constitutes a significant departure from the law of causation as it existed prior to the 1991 amendments to the Workers' Compensation Act. However, this modification of the law, which requires ALJs to give substantially more weight to the opinions of physicians than was the case before the amendments, is a necessary byproduct of the General Assembly's attempt to reduce the amount of litigation surrounding awards of permanent disability. See Colorado AFL-CIO v. Donlon, supra.
We have also considered the respondents' argument that it is "illogical" to allow physicians to determine the "cause" of a medical impairment because resolution of this question often requires factual determinations which are not "medical in nature." We rejected a similar argument in Shafer v. Midtown Occupational Health Services, supra, and stated the following:
However, in our view, the statutory scheme evidences the General Assembly's conclusion that bringing cases to a close by way of the IME process is better than encouraging extensive litigation on the issue of causation, and permitting ALJs to exercise unfettered discretion concerning the weight of the medical and lay evidence. Instead, the General Assembly determined that ALJs must ascribe great weight to the opinions of IME physicians concerning the cause of medical impairment, although ALJs remain free to make the ultimate determination under the clear and convincing standard.
Finally, the respondents assert that the ALJ does not know why Dr. Quick included cervical impairment in the claimant's rating. However, the ALJ's order addressed this issue at length. The ALJ noted that Dr. Quick prescribed, and the claimant received, physical therapy for his cervical condition. The ALJ also credited the claimant's testimony concerning his ongoing neck pain. Therefore, the reason for Dr. Quick's reliance on Table 53(II)(B) of the AMA Guides is apparent from the record.
IT IS THEREFORE ORDERED that the ALJ's order dated August 1, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Bill WhitacreNOTICE This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed April 23, 1998 to the following parties:
Kenneth D. Trumblee, 2343 W. Taylor Ave., P.O. Box 343, LaSalle, CO 80645
Mike and Kathy Egan d/b/a Express Personnel Services, 1135 8th Ave., Greeley, CO 80631
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun (Interagency Mail)
Katherine E. Allen, Esq., 705 Fourteenth St., Greeley, CO 80631 (For the Claimant)
Thomas M. Stern, Esq., 1700 Broadway, #1700, Denver, CO 80290-1701 (For the Respondents)
By: __________________________________________________