It long has been settled law that the Division IME physician’s opinion concerning the cause of a particular component of a claimant’s overall impairment must be overcome by clear and convincing evidence. The Industrial Claim Appeals Office appears to have departed from that rule of law in a recent decision which stated that the determination of the Division IME physician as to which body parts and resulting work restrictions were related to the work injury are not entitled to any additional weight on the issue of Permanent Total Disability benefits. Talboys v. The Greenhouse Restaurant, W. C. No. 4-597-998 (September 25, 2013). In other words, when a Division IME physician determines that a disability to a particular body part is not caused by the industrial injury, in a hearing on Permanent Partial Disability benefits a party would need to overcome that finding by clear and convincing evidence, but in a hearing on Permanent Total Disability benefits a party would need to overcome that finding by a preponderance of the evidence only.
The facts of the underlying case are important in determining the effect of the decision on future claims for Permanent Total Disability benefits. In Talboys, the authorized treating physician provided a 14% whole person impairment for a soft tissue injury across the central low back, and assigned work restrictions based on the low back injury. The Division IME physician found that the claimant also sustained injuries to the cervical and thoracic spine, and provided a 52% whole person impairment rating. The respondents filed an Application for Hearing seeking to overcome the Division IME physician’s impairment rating of the cervical and thoracic spine, and the claimant sought Permanent Total Disability benefits. The Administrative Law Judge found that the respondents had failed to overcome the 52% impairment rating of the Division IME physician. The Administrative Law Judge also found that the claimant proved that she was entitled to Permanent Total Disability benefits, relying upon the restrictions provided by the authorized treating physician at the time of the first impairment rating (to the lumbar spine only).
The respondents appealed, arguing that the issue of Permanent Total Disability benefits was not ripe for determination because the scope of the body parts to be assigned an impairment rating had not yet been determined. The Panel rejected that argument, noting that the issues of both Permanent Partial Disability benefits and Permanent Total Disability benefits are ripe for determination when the claimant reaches Maximum Medical Improvement. In analyzing the ripeness issue, for some reason the Panel turned to the evidentiary presumption applicable to the Division IME physician’s findings in a Permanent Total Disability benefits claim, which led to the pronouncement that the Division IME physician’s opinion on causation is not entitled to any extra weight when determining Permanent Total Disability benefits. Inexplicably, the Panel then noted that the Administrative Law Judge, in finding the claimant was permanently totally disabled, did not consider any work restrictions to the thoracic and cervical spine (the additional body parts found to be causally related by the Division IME physician). The Panel then stated that “as a result”, the respondents’ contention that the issue of Permanent Total Disability benefits was not ripe for determination is not persuasive.
Because the written opinion continues the Industrial Claim Appeals Office’s recent spate of poorly reasoned (and even more poorly drafted) opinions, the impact of the decision is not clear. The Panel found that the Administrative Law Judge did not rely upon any restrictions to the body parts found to be causally related by the Division IME physician. Therefore, it would appear that the Panel’s statement as to the weight of the Division IME opinion when determining Permanent Total Disability benefits is nothing more than dicta completely unnecessary to its resolution of the ripeness issue. Of course, whether the statement is dicta or controlling law is a matter of interpretation by Administrative Law Judges and the appellate courts. The Talboys decision was not appealed to the Court of Appeals. Therefore, there will continue to be uncertainty regarding the impact of a Division IME physician’s opinion on the issue of Permanent Total Disability benefits.