Update on Colorado Appellate Decisions in Workers' Compensation Law

• Publication year: 2000
• Pages: 97
• Citation: Vol. 29 No. 9 Pg. 97

29 Colo.Law. 97 Colorado Lawyer 2000.

2000, September, Pg. 97. Update on Colorado Appellate Decisions In Workers' Compensation Law

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97

Vol. 29, No. 9, Pg. 97

The Colorado Lawyer
September 2000
Vol. 29, No. 9 [Page 97]

Specialty Law Columns
Workers' Compensation Report
Update on Colorado Appellate Decisions In Workers' Compensation Law
by Ralph Ogden

This article is an update of recent decisions from the Colorado Court of Appeals and the Colorado Supreme Court regarding workers? compensation issues. A previous update was published in the June 2000 issue on page 83

Compensability

Faulkner v. Industrial Claim Appeals Office1 deals with an industrial disease claim and opinions on causality by the Division of Workers? Compensation ("Division") independent medical examination ("IME") physician After fumes from carpet glue drifted into her office claimant reported that she experienced coughing, headaches, the sensation of being "high," and difficulty speaking. Respondents filed several general admissions for medical and temporary total disability ("TTD") benefits, and claimant then applied for a hearing on the issues of causation and permanent impairment. Her treating physician gave her a 28 percent whole person impairment rating; however, impairment was not designated by either party as an issue for the hearing. Three months after the hearing application was filed, respondents moved to add the issue of whether they should be allowed to withdraw their admissions on the ground that two recently retained experts believed claimant?s condition was unrelated to the toxic exposure. A prehearing Administrative Law Judge ("ALJ") issued an order granting the motion, and the order was apparently not appealed.

Before the hearing, claimant underwent an IME sponsored by the Division. The IME physician assigned a 14 percent whole person impairment rating as a result of irritant vocal cord dysfunction.

Respondents? medical experts testified that claimant had not been exposed to sufficient quantities of toxic chemicals to have caused any permanent injury. The ALJ credited this testimony and found that claimant had not been physically injured by the exposure. He also found that claimant experienced a "psychological reaction which resulted in numerous respiratory and other physical complaints," and concluded that the claim involved a claim for mental impairment within the meaning of CRS § 8-41-301(2)(a). However, since claimant had failed to prove all of the elements of a mental impairment claim under this statute, the ALJ denied her claim. The ALJ also held that the employer?s general admissions were the result of a mistake concerning the compensability of the claim, and issued a second order granting respondents permission to withdraw their admissions and cease payment of benefits.

On appeal, claimant argued that the ALJ applied an incorrect burden of proof in determining the issue of causation. She argued that the IME physician?s opinion on this issue could be overcome only by clear and convincing evidence, and that the ALJ erred in applying a preponderance standard. The Court of Appeals disagreed.

It held that proof of causation was a threshold requirement under CRS § 8-41-301(1)(c), and that the burden of proof was on the injured employee to show compensability by a preponderance of the evidence. It also noted that the question of causation was generally a factual one.

The Court of Appeals noted its earlier decisions in Qual-Med, Inc. v. Industrial Claim Appeals Office2 and Egan v. Industrial Claim Appeals Office,3 and held that they were distinguishable on the ground that "neither case addresses whether the claimant had sustained a compensable injury in the first instance."

In Qual-Med, the court held that the opinion of an IME physician selected under CRS § 8-42-107(8)(c) as to the cause of a worker?s injuries should be given the same presumptive validity as any other opinions by the IME physician. The claimant in Qual-Med suffered from bilateral carpal tunnel syndrome with complications. He was placed at maximum medical improvement ("MMI") by his treating physician and given a 3 percent upper extremity rating. The claimant did not dispute the finding of MMI, but requested an IME to determine impairment. The IME physician gave him a 23 percent whole person rating, which included a 19 percent impairment for the left upper extremity, 1 percent for the right upper extremity, and 4 percent whole person based on the decreased cervical range of motion, which he attributed to the extremity injuries. The ALJ and the Industrial Claim Appeals Office ("Panel") gave the opinions of the IME physician presumptive force and required the Colorado Compensation Insurance Authority ("CCIA") to overcome them by clear and convincing evidence.

On appeal, the Court of Appeals held that:

As a matter of diagnosis, the assessment of impairment requires a rating physician to identify and evaluate all losses and restrictions which result from the industrial injury. . . . The IME physician?s conclusion that the neck and shoulder problems were components of claimant?s overall impairment simply constituted a part of the diagnostic assessment that comprises the IME process. While employer complains that the conclusion should not be given presumptive effect, that result is required by statute.

In Egan, the treating physician gave the claimant a 20 percent whole person impairment rating, which was based on a 10 percent whole person rating for an extremity impairment and another 10 percent whole person impairment for neck injuries. The insurer filed a final admission for the scheduled impairment only, without converting it to a whole person rating, and then asked an ALJ to determine whether the neck condition was caused by the industrial injury. The ALJ determined that the treating physician?s impairment rating "inherently states that the cervical condition and the upper extremity condition which he rated and found appropriate to rate are directly related to claimant?s injuries and not to pre-existing conditions or non-industrial injuries." He then held that because the insurer had failed to request a Division IME to dispute the treating physician?s rating, he lacked jurisdiction to consider the insurer?s challenge.

On appeal, the insurer argued that the impairment rating process governed only the extent of the impairment, and that causation remained a factual question for resolution by the ALJ, even when a Division IME had not been performed. The Court of Appeals disagreed. It agreed with the ALJ that, "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. . . . Because the AMA Guides required the physician to determine the cause or causes of the claimant?s medical impairment, the issue of causation was necessarily considered."

Thus, the ALJ correctly determined that he lacked authority to determine causation absent a Division IME. This meant that a party challenging impairment for lack of a causal connection with the industrial injury was "essentially" required to submit the causation question to another doctor (the IME physician) before submitting it to the ALJ. This rule, however, applies...