Opinion
W.C. No. 4-408-212
September 10, 2002
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) which determined they failed to overcome the Division-sponsored independent medical examination (DIME) physician's impairment rating. We set aside the order and remand for the entry of a new order.
In January 1999, the claimant suffered a compensable crushing injury to his left foot. After surgery the claimant was placed in a cast and given crutches to avoid weight bearing on the injured foot. The claimant subsequently complained of low back pain. The claimant previously underwent a low back surgery for a 1992 injury.
In June 1999 Dr. Raschbacher placed the claimant at maximum medical improvement (MMI) and assigned a 1 percent rating for permanent medical impairment to the left lower extremity. The claimant requested a DIME to dispute Dr. Raschbacher's finding of MMI. The DIME physician, Dr. Swarsen, determined the claimant was not at MMI and recommended additional treatment of the claimant low back. Additional treatment was provided until March 2001, when Dr. Aylor placed the claimant at MMI and assigned a 20 percent whole person impairment rating for range of motion deficits and a specific disorder of the lumbar spine. However, Dr. Aylor subsequently retracted the rating based on his determination that the 1999 injury did not cause any permanent impairment to the lumbar spine.
Dr. Swarsen conducted a follow-up DIME and assigned a 15 percent rating for impairment to the left lower extremity, which equals 5 percent whole person impairment. He also assigned 10 whole person impairment for a specific disorder of the lumbar spine and 16 percent impairment for range of motion deficits in the lumbar spine. However, Dr. Swarsen apportioned the specific disorder rating to the previous back surgery. Therefore, Dr. Swarsen's final rating was 20 percent (5 + 16) whole person impairment.
The respondents applied for a hearing to overcome the DIME physician's rating with respect to the lumbar spine impairment. In support, the respondents offered the testimony of Dr. Aylor and Dr. Raschbacher. Both physicians opined the claimant's lumbar spine impairment was not causally related to the industrial injury.
The ALJ found the respondents failed to overcome the DIME physician's rating and "failed to put in doubt the cause or connective relationship between the rating and the admitted compensable injury." (Conclusions of Lawd). Further, the ALJ determined the opinions of Dr. Aylor and Dr. Raschbacher reflected a disagreement with Dr. Swarsen "about causation and diagnosis" which was insufficient to overcome the DIME physician's rating. Consequently, the ALJ ordered the respondents to pay medical impairment benefits based on 20 percent whole person impairment.
I.
On review, the respondents contend the ALJ's implicit determination that the DIME physician found a causal connection between the claimant's lumbar impairment and the industrial injury is not supported by the record. We conclude the ALJ's findings are insufficient to permit appellate review and, therefore, we remand for additional findings. Section 8-43-301(8), C.R.S. 2001.
Under § 8-42-107(1), C.R.S. 2001, the claimant is entitled to permanent disability benefits where the industrial injury "results in permanent medical impairment." Similarly, § 8-42-107(8)(c), C.R.S. 2001, restricts permanent partial disability awards to injuries where permanent impairment "has resulted from the injury." Accordingly, a causal relationship between the industrial injury and the permanent impairment is a prerequisite to an award of permanent partial disability benefits.
It is well established that the DIME physician's opinions concerning the cause of a claimant's impairment are an inherent part of the diagnostic assessment which comprises the DIME process of rating permanent medical impairment. See Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998); Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998). Under § 8-42-107(8)(c), C.R.S. 2001, the DIME physician's medical impairment rating is presumed correct and may only be overcome by "clear and convincing evidence" to the contrary. Accordingly, the DIME physician's opinion on causation is dispositive unless overcome by clear and convincing evidence to the contrary.
Where the DIME physician's opinions are internally inconsistent it is the ALJ's sole prerogative as the fact finder to resolve the conflict and determine the nature of the DIME physician's true opinions. See Lambert Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656 (Colo.App. 1998). The ALJ's resolution is binding if supported by substantial evidence and the applicable law.
Here, Dr. Swarsen testified that the claimant's temporary use of crutches following the 1999 injury caused an "exacerbation" of the pre-existing back condition. (Tr. p. 14). He explained that, he uses the term "exacerbation" to refer to a situation where:
"you would expect to restore the individual to his pre-existing condition even if that [sic] was a permanent impairment from a prior injury. An aggravation would be a permanent aggravation where one would expect an increase in the amount of impairment rating." (Tr. November 21, 2001, pp. 14-15).
Further, in response to the question of whether the 1999 exacerbation increased the permanent disability to the claimant's back, Dr. Swarsen stated, "The answer to that is I don't know." (Tr. November 21, 2001, pp. 18, 31). Instead, he stated that was an issue of "apportionment." (Tr. November 21, 2001, p. 31). Specifically, Dr. Swarsen testified that he understands the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised, (AMA Guides) require the examining physician to assign a rating to all impairment observed during a DIME and then to apportion out pre- existing impairment. ( See Tr. November 21, 2001, pp. 23, 25). Based upon his belief that he did not have adequate records of the claimant's pre-existing lumbar range of motion to apportion the 16 percent rating to the 1992 injury, Dr. Swarsen reported the impairment as a compensable consequence of the 1999 industrial injury. (Tr. November 21, 2001, pp. 19, 22, 25, 26).
Dr. Swarsen's testimony notwithstanding, in the context of permanent partial disability the issue is one of "causation" when a physician is determining whether or not an entire component of the claimant's impairment is or is not related to the industrial injury. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998); Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998). In contrast, apportionment is "the determination of the degree to which each of various occupational and nonoccupational factors has contributed to a particular component of the claimant's impairment." Nichols v. Denver Publishing Co., W.C. No. 4-248-693 (September 21, 2000). It follows that considerations of apportionment are unnecessary unless the DIME physician first determines the industrial injury has played at least some causative role in a specified component of the overall impairment. Cf. Public Service Company of Colorado v. Industrial Claim Appeals Office, 40 P.3d 68 (Colo.App. 2001) (where impairment of low back was partially work-related and partially related to prior injuries, apportionment principles applied).
Here, Dr. Swarsen's testimony suggests his medical impairment rating is based upon "apportionment" principles without resolving the threshold issue of whether there was any causal connection between the 1999 industrial injury and the claimant's permanent impairment of the lumbar spine. On the one hand Dr. Swarsen's testimony suggests any exacerbation of the preexisting back condition was temporary and, therefore, there is no permanent impairment attributable to the 1999 injury. On the other hand he expressed uncertainty on this issue, thereby suggesting a relationship which he cannot rule out. The ALJ did not expressly resolve this inconsistency in the order.
On remand the ALJ shall issue specific findings of fact which resolve the pertinent conflicts in Dr. Swarsen's testimony involving the distinction between causation and apportionment. Based upon these findings the ALJ shall reconsider whether Dr. Swarsen attributed any of the lumbar impairment to the 1999 industrial injury and, if so, whether the respondents overcame that determination by clear and convincing evidence.
II.
The respondents also contend the ALJ erred in failing to address the issue of future medical benefits in his written order. We agree and remand for determination of the issue.
At the commencement of the hearing on November 21, 2001, the claimant's attorney stated that future medical benefits as provided by Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988) was an issue for adjudication. (Tr. p. 3). The matter was continued until January 16, 2002. At the conclusion of the January hearing the ALJ issued an oral ruling which denied Grover-type medical benefits and did not reserve any issue for future determination. (Tr. p. 31).
However, it is the ALJ's written order which we must review. See Wait v. Jan's Malt Shoppe, 736 P.2d 1265 (Colo.App. 1987). The ALJ's written order does not list Grover- type medical benefits as a disputed issue. Neither does the order contain any specific findings or conclusions resolving the claimant's entitlement to future medical benefits. Moreover, the written order does not reserve any issue for future determination.
Because the issue of Grover-type medical benefits was endorsed for hearing and a claim for Grover benefits must be resolved at the time of the permanent disability hearing, the ALJ erred in failing to address the issue in the written order. Grover v. Industrial Commission, supra; Abram v Furr's Cafeteria, W.C. No. 3-189-148 (June 12, 1989) aff'd., Abram v. Furr's Cafeteria (Colo.App. No. 89CA0996, June 28, 1990) (not selected for publication). Therefore, we remand the matter to the ALJ for the entry of an order on the issue of future medical benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated February 6, 2002, is set aside and the matter is remanded for additional findings and the entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ David Cain ____________________________________ Kathy E. Dean
Copies of this decision were mailed September 10, 2002 to the following parties:
James Wales, 26838 CR 313, Buena Vista, CO. 81211
Mike Cook, Office Manager, InFab, Inc., 4300 Monaco Street Pkwy., Denver, CO. 80216
Michael Kramish, Risk Enterprise Management, Ltd., P. O. Box 6500, Englewood, CO. 80155
John a. Sbarbaro, Esq., 226 W. 12th Ave., Denver, CO. 80204-3625 (For Claimant)
Gary L. Fleming, Esq. and Clyde E. Hook, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO. 80227 (For Respondents)
BY: A. Hurtado