From Casetext: Smarter Legal Research

In re Batcheller-Gonzales, W.C. No

Industrial Claim Appeals Office
Apr 29, 2003
W.C. No. 4-457-012 (Colo. Ind. App. Apr. 29, 2003)

Opinion

W.C. No. 4-457-012

April 29, 2003


FINAL ORDER

The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ). We affirm.

The ALJ entered an order on October 2, 2002. The claimant filed a timely petition to review. The only issue cited in the petition to review was the ALJ's failure to find the claimant sustained a 30 percent upper extremity impairment in accordance with the Dr. Hall's rating. The claimant did not file a brief in support of the petition.

The claimant's petition to review appears to have abandoned the argument, made at the hearing, that the claimant's upper extremity impairment rating should be converted to a whole person rating. However, the claimant appears to argue that the ALJ should have credited Dr. Hall's opinion that the claimant sustained a 30 percent upper extremity impairment rather than the 3 percent upper extremity rating assessed by the Division- sponsored independent medical examination (DIME) physician. The respondents admitted liability for the claimant's extremity injury based on the DIME physician's rating.

The issue of which scheduled impairment rating was correct was an issue of fact to be determined by the ALJ under the preponderance of the evidence standard. The DIME provisions of the Act do not apply when determining which of two or more scheduled impairment ratings is correct. See Delaney v. Industrial Claim Appeals Office, 30 P.3d 691 (Colo.App. 200); Ashton-Moore v. Nextel Communications, Inc., W.C. No. 4-431-951 (September 12, 2002).

Although the majority of the ALJ's order addresses the ALJ's conclusion that the claimant's upper extremity injury is confined to the schedule, the ALJ also discredited Dr. Hall's opinion that the claimant sustained a "brachial plexopathy," while crediting the contrary opinions of the DIME physician and the treating physician. (Findings of Fact 11-14). It is implicit in these findings that the ALJ rejected the basis for the 30 percent impairment rating issued by Dr. Hall. Thus, we perceive no basis for interfering with the order.

IT IS THEREFORE ORDERED that the ALJ's order dated October 2, 2002, is 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 April 29, 2003 to the following parties:

Dorine Batcheller-Gonzales, 8160 Puite Rd., #80, Colorado Springs, CO 80926

Key Products, Inc., 1250 W. 124th Ave., Westminster, CO 80234

Rosalyn Shaw, Hartford Insurance Co., P. O. Box 4626, Houston, TX 77210

Michael W. McDivitt, Esq., 19 E. Cimarron St., Colorado Springs, CO 80903 (For Claimant)

Bradley R. Unkeless, Esq., 7670 S. Chester St., #300, Englewood, CO 80112 (For Respondents)

By: A. Hurtado


Summaries of

In re Batcheller-Gonzales, W.C. No

Industrial Claim Appeals Office
Apr 29, 2003
W.C. No. 4-457-012 (Colo. Ind. App. Apr. 29, 2003)
Case details for

In re Batcheller-Gonzales, W.C. No

Case Details

Full title:IN THE MATTER OF THE CLAIM OF DORINE BATCHELLER-GONZALES, Claimant, v. KEY…

Court:Industrial Claim Appeals Office

Date published: Apr 29, 2003

Citations

W.C. No. 4-457-012 (Colo. Ind. App. Apr. 29, 2003)