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Kilpatrick v. Indus. Claim Appeals Office of Colorado

Court of Appeals of Colorado, First Division

March 12, 2015

Brian Kilpatrick, Petitioner,
Industrial Claim Appeals Office of the State of Colorado, Goodwill Industries of Denver, and Pinnacol Assurance, Respondents

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[Copyrighted Material Omitted]

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Industrial Claim Appeals Office of the State of Colorado. WC No. 4-862-486.

Chris Forsyth Law Office, LLC, Christopher Forsyth, Denver, Colorado, for Petitioner.

Cynthia H. Coffman, Attorney General, Emmy A. Langley, Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.

Harvey D. Flewelling, Denver, Colorado, for Respondent Goodwill Industries of Denver and Pinnacol Assurance.

Terry and Richman, JJ., concur.



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[¶1] In this workers' compensation action, we reject the principal argument of claimant, Brian Kilpatrick, that his right to equal protection of the law was violated because district court judges must disclose their financial contributions, while workers' compensation prehearing administrative law judges (PALJs), and administrative law judges (ALJs) and members of the Industrial Claim Appeals Office (Panel) do not. Because we conclude that those ALJs and Panel members are required to disclose their financial contributions, we further conclude that claimant's right to equal protection was not abridged.

[¶2] Claimant seeks review of a final order of the Panel affirming the decision of an ALJ that had denied his petition to reopen. The ALJ found neither a mistake of fact nor a change of condition meriting reopening. We conclude that substantial evidence supports the ALJ's reopening determination, reject claimant's other arguments for setting aside the Panel's order, and therefore affirm.

I. Background

[¶3] Claimant sustained an admitted, compensable injury to his left wrist in June 2011 while pulling a pallet in the course and scope of his employment with employer, Goodwill Industries of Denver. An MRI taken in August 2011 revealed a tear of the ligaments and tissues in his wrist. Dr. Mitchell Fremling performed an endoscopic TFCC debridement and " distal ulnar shortening" surgery of the left wrist about two weeks after the tear was discovered.

[¶4] Claimant continued to complain of pain in his wrist post-surgery. In December 2011, a different doctor, Dr. Jason Rovak, gave claimant a steroid and lidocaine injection in his wrist to ease his pain complaints. However, the wrist injection did not relieve claimant's symptoms. After the unsuccessful injection, Dr. Rovak noted that he did not have any further treatment options " to offer this patient" nor any interventions that he felt " confident will address his discomfort."

[¶5] In March and April 2012, through Dr. Fremling and his authorized treating physician (ATP), Dr. David Yamamoto, claimant sought authorization for a second surgery to shorten the ulnar bone of his left wrist. Employer's insurer, Pinnacol Assurance, denied the request. Dr. Fremling then observed that he had nothing more " to offer this patient."

[¶6] Soon after, Dr. Yamamoto placed claimant at maximum medical improvement (MMI) as of June 27, 2012, with a fifteen percent scheduled impairment of the left upper extremity. Dr. Yamamoto noted, " I am not in favor of further surgery as his failure to improve with the recent diagnostic injection coupled with his somewhat fragile psychological state and pain complaints make him in my opinion a poor surgical candidate."

[¶7] Two other physicians, who were retained by employer, Dr. Jonathon Sollender and Dr. Brian Lambden, agreed that a second ulnar-shortening surgery was neither reasonable nor necessary and would not relieve claimant's symptoms. Indeed, Drs. Sol

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lender and Lambden opined that claimant did not present with a " positive ulnar" bone structure -- in which the ulna is longer than the radius -- and, consequently, ulnar shortening surgery would be of no benefit to him.

[¶8] Employer filed a final admission of liability (FAL) based on Dr. Yamamoto's MMI determination and scheduled impairment rating of the left upper extremity. It is undisputed that claimant neither requested a division-sponsored independent medical examination (DIME) nor otherwise objected to the FAL. The FAL therefore became final and unappealable.

[¶9] In late 2012 and early 2013, Dr. Yamamoto referred claimant to another physician, Dr. David Conyers, because claimant continued to complain of pain in his left wrist. Despite not finding " a structural abnormality . . . to explain his continued symptoms," and X-rays showing " that the ulnar shortening [was] adequate . . . [and that] claimant had " an ulnar neutral slightly ulnar negative" presentation, Dr. Conyers recommended further arthroscopy to examine the wrist. He therefore submitted a request for authorization for the procedure to employer's insurer, Pinnacol Assurance. Later, upon reviewing MRI films of claimant's left wrist, Dr. Conyers opined that, contrary to other physicians' interpretations, claimant was actually ulnar positive and would benefit from further ulnar shortening surgery. Pinnacol nevertheless denied the request.

[¶10] Subsequently, in February 2013, Dr. Yamamoto signed a statement indicating he agreed with Dr. Conyers' surgery recommendation, and noted that claimant " should be off MMI." Several months later, in August 2013, Dr. Yamamoto signed a statement apparently intending to rescind his June 2012 MMI determination by checking a box next to the following statement drafted by claimant's counsel:

In addition to my report of February 12, 2013, wherein I rescinded the MMI date of June 27, 2012, I would clarify that, in retrospect, I was mistaken to place [claimant] at MMI on that date. Based on subsequent reports by Dr. David Conyers, [claimant] needs further treatment before he reaches MMI. It was a mistake to place [claimant] at MMI on June 27, 2012, and I have rescinded that determination.

Based on these statements, as well as the report of Dr. Conyers, claimant petitioned to reopen his claim, arguing that Dr. Yamamoto erred by placing him at MMI in June 2012, and that his condition had changed.

[¶11] As part of the ensuing litigation, claimant served employer with an interrogatory inquiring whether anyone working for or associated with Pinnacol or employer's counsel had given any gifts " of monetary value" to anyone working for the prehearing unit of the Division of Workers' Compensation, the Office of Administrative Courts, or the Panel. After employer declined to provide the information on the grounds that the request was overly burdensome and harassing, claimant moved to compel. He argued that because he could not obtain the information " automatically" through public financial disclosure, his discovery request was the " only way to obtain this information." However, claimant's discovery request was denied.

[¶12] A hearing on claimant's reopening request later proceeded without the requested discovery. After listening to claimant's and Dr. Sollender's testimony, reading the transcripts of the depositions of Drs. Yamamoto, Lambden, and Conyers, and reviewing the documentary evidence submitted by the parties, the ALJ denied claimant's request to reopen. Relying on the opinions of Drs. Sollender and Lambden, the ALJ was not persuaded that either a mistake had been made or that claimant's condition had changed. She also found that Dr. Yamamoto's opinion was " equivocal" and concluded that he had not rescinded his MMI determination. Finally, she rejected Dr. Conyers' recommendation for additional surgery, concluding that his reliance on the MRI was inconsistent with the opinions of Drs. Sollender, Lambden, Rovak, and Fremling, who concurred that ulnar variance should be determined by X-ray, not MRI. The Panel affirmed the ALJ's denial and dismissal of claimant's petition to reopen.

[¶13] Claimant now appeals. He raises a number of arguments on appeal, which can be summarized as follows: (1) he was entitled to discovery pertaining to any financial contributions Pinnacol or its employees made

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to PALJs, ALJs, or Panel members; (2) the lack of financial information about PALJs, ALJs, and Panel members violates his right to equal protection under the law; (3) the ALJ was bound by Dr. Yamamoto's February and August 2013 notes stating that claimant was no longer at MMI; (4) substantial evidence does not support the ALJ's determination that Dr. Yamamoto did not rescind his June 2012 MMI determination; and (5) the ALJ made numerous evidentiary errors requiring reversal and remand, including (a) denying his request for sanctions for employer's alleged failure to disclose MRI films; (b) considering other physicians' MMI opinions even though the ALJ was bound by Dr. Yamamoto's February and August 2013 notes apparently rescinding MMI; (c) permitting employer's counsel to question employer's expert about an opinion that allegedly was not disclosed; (d) imposing an impossible burden on claimant's counsel by inquiring what documents he claimed had not been disclosed; and (e) denying his request to call employer's counsel as a witness even though she " repeatedly testified" during the hearing and in deposition.

II. Preservation of Claimant's Arguments

[¶14] We first address employer's contention that numerous arguments asserted here by claimant were not preserved for our review. Employer argues that claimant failed to object to certain evidence, failed to make offers of proof, and failed to seek review of the denial of his motion to compel before either the ALJ or the Panel, all of which constituted waiver of these arguments on appeal. However, our review of the record reveals that claimant repeatedly objected to testimony and evidence, and discussed his positions at length with the ALJ. In general, an objection adequately preserves an issue for appellate review " so long as it calls the court's attention to the specific point it addresses." See Vaccaro v. Am. Family Ins. Group, 2012 COA 9, ¶ 52. We note, too, that claimant challenged the denial of his motion to compel in his brief in support of his petition to review before the Panel.

[¶15] Nor are we persuaded that the PALJ's decision had to be reviewed by the ALJ to preserve the issue for appellate review. We know of no such rule. To the contrary, " rulings of a PALJ are binding on the parties. No provision stays interlocutory orders entered by a PALJ pending review by an ALJ." Kennedy v. Indus. Claim Appeals Office, 100 P.3d 949, 950 (Colo.App. 2004). While it is true that a PALJ's order " may be addressed at the subsequent hearing," and that an ALJ has authority to override a PALJ's ruling, the statute authorizing PALJs to decide certain issues does not make ALJ review a prerequisite for appellate review. Indus. Claim Appeals Office v. Orth, 965 P.2d 1246, 1254 (Colo. 1998) (emphasis added); Dee Enters. v. Indus. Claim Appeals Office, 89 P.3d 430, 441 (Colo.App. 2003); § 8-43-207.5, C.R.S. 2014. The only authority cited by employer that explicitly supports its position is a Panel decision. See Quinn v. Tire Centers, LLC, (W.C. No. 4-712-600, Oct. 9, 2007). However, we ...

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