BROWN BAG SEMINAR Thursday, November 17, 2016 (third Thursday of each month)

Noon - 1 p.m.

633 17th Street

2nd Floor Conference Room (use elevator near Starbucks)

1 CLE (including .4 ethics)

Presented by

Craig Eley

Prehearing Administrative Law Judge Colorado Division of Workers’ Compensation

Sponsored by the Division of Workers' Compensation

Free

This outline covers ICAP and appellate decisions issued through

November 10, 2016

Contents

Industrial Claim Appeals Office decisions

Cruz v Sacramento Drilling 2

Lambert v Sturgeon Electric 8

Magali-Tamayo v Trioak Foods West 14

Shaikh v Colorado Springs Transportation 20

Williams v Halliburton Energy Services 26

Colorado Court of Appeals decisions

Serena v Industrial Claims Appeals Office and SSC Pueblo Belmont

32

United Parcel Service v Industrial Claims Appeals Office and Jennifer Magers

52

INDUSTRIAL CLAIM APPEALS OFFICE

W.C. No. 4-999-129-01

IN THE MATTER OF THE CLAIM OF VINCENT CRUZ,

Claimant, v. FINAL ORDER SACRAMENTO DRILLING, INC.,

Employer, and TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, Insurer, Respondents.

The respondents seek review of an order of Administrative Law Judge Walsh (ALJ) dated June 3, 2016, that determined the claimant’s average weekly wage (AWW) was $1,176.00. We affirm.

This matter went to hearing on the amount of the claimant’s AWW. After the

hearing, the ALJ found that the claimant was hired as a laborer by the respondent employer on October 7, 2015. The claimant had an admitted work injury on October 20, 2015. The claimant’s hourly wage was $16.80.

Mary Jo Rees, the Controller for the respondent-employer, testified that when

laborers are hired they are not promised or guaranteed overtime. Nonetheless, the claimant was offered 10 hours a day for six days a week working Monday through Saturday.

The claimant’s first week of work was a partial week where he began on a

Wednesday with 7.5 hours of work and then worked 10 hour days the rest of the week. During the claimant’s first full week, he worked 59 hours. The number of hours that the claimant worked each day from the time of hire up to the date of injury was as follows:

VINCENT CRUZ W. C. No. 4-999-129-01 Page 2

Day Date Hours worked Wed. 10/07/2015 7.5 Thurs. 10/08/2015 10.0 Fri. 10/09/2015 10.0 Sat. 10/10/2015 10.0 Sun. 10/11/2015 Off Mon. 10/12/2015 11.0 Tues. 10/13/2015 10.5 Wed. 10/14/2015 8.0 Thurs. 10/15/2015 10.0 Fri. 10/16/2015 10.0 Sat. 10/17/2015 9.5 Sun. 10/18/2015 Off Mon. 10/19/2015 10.0 Tues. 10/20/2015 10.0 During the claimant’s first full week or work, from October 12, 2015, through

October 17, 2015, the claimant worked 59 hours and earned $1,103.10. This included 46 hours of regular time and 13 hours of overtime. It is unclear why the claimant was not paid overtime for the 6 hours in excess of the 40 hour work week.

During the hearing, the claimant argued that his AWW was $1,103.10. This

AWW was based on the claimant’s paycheck from October 12, 2015, through October 17, 2015, which was the week prior to his injury wherein he worked 59 hours. The claimant contended that this week represented that he was going to be working 10 hour shifts six days a week before he got hurt. Conversely, the respondents argued that the claimant was not promised any overtime or guaranteed any overtime when he was hired. They contended that the claimant’s wage history prior to his injury was insufficient and, therefore, the ALJ would need to apply his discretionary authority to calculate a fair AWW. Accordingly, they requested that the claimant’s AWW be calculated by averaging the total of his nine paychecks starting with the week of October 12, 2015. Based on this, the respondents contended the claimant’s AWW amounts to $768.38.

Citing to §8-42-102(2)(c) and (d), C.R.S., the ALJ found that the claimant’s

AWW was $1,176.00. The ALJ found that the employer’s offer of employment was 60 hours per week, and that the claimant’s work history, while truncated, was consistent with that offer. The ALJ further found that merely because the number of hours was not guaranteed did not affect the outcome because at the time of the injury, the claimant was

VINCENT CRUZ W. C. No. 4-999-129-01 Page 3 working consistent with 10-hour days. Consequently, the ALJ found that the claimant’s AWW was best determined using 40 hours of regular time ($16.80 x 40 = $672.00) and adding the projected overtime of 20 hours at time and a half (20 x $16.80 x 1.5 = $504.00) to arrive at a total AWW of $1,176.00.

On appeal, the respondents contend the ALJ erred as a matter of law in finding

that the claimant’s AWW should be based on a 60 hour work week. The respondents argue that substantial evidence does not support the ALJ’s order in this regard. We disagree.

To determine a claimant's AWW, the ALJ may choose from two different methods

set forth in §8-42-102, C.R.S. The first method provides that a claimant's AWW "be calculated upon the monthly, weekly, daily, hourly, or other remuneration which the injured or deceased employee was receiving at the time of the injury. . . ." Section 8-42-102(2), C.R.S. This method identifies different formulas for conducting the calculation. For instance, §8-42-102(2)(d), C.R.S. provides that where the employee is being paid by the hour, the daily wage shall be determined “by multiplying the hourly rate by the number of hours in a day during which the employee was working at the time of the injury or would have worked if the injury had not intervened. . . .” The weekly wage is then determined from the daily wage in the manner set forth in §8-42-102(2)(c), C.R.S. That subsection provides that where “the employee is rendering service on a per diem basis, the weekly wage shall be determined by multiplying the daily wage by the number of days and fractions of days in the week during which the employee under a contract of hire was working at the time of the injury or would have worked if the injury had not intervened.”

The second method for calculating a claimant's AWW is referred to as the

"discretionary exception." The discretionary exception applies when the standard methods "will not fairly compute” the claimant’s AWW. Section 8-42-102(3), C.R.S. In such a circumstance, the ALJ has discretion to "compute the average weekly wage of said employee in such other manner and by such other method as will, in the opinion of the director based upon the facts presented, fairly determine such employee's average weekly wage." Section 8-42-102(3), C.R.S.; see Benchmark/Elite, Inc. v. Simpson, 232 P.3d 777 (Colo. 2010).

The overall purpose of the statutory scheme is to calculate “a fair approximation

of the claimant’s wage loss and diminished earning capacity.” Campbell v. IBM Corp., 867 P.2d 77, 82 (Colo. App. 1993). We may not interfere with the ALJ’s calculation of the AWW unless an abuse of discretion is shown. Coates, Reid & Waldron v. Vigil, 856

VINCENT CRUZ W. C. No. 4-999-129-01 Page 4 P.2d 850 (Colo. 1993). An ALJ only abuses his discretion where the order exceeds the bounds of reason, such as where it is unsupported by the record or is contrary to law. Rosenberg v. Board of Education of School District # 1, 710 P.2d 1095 (Colo. 1985).

Here, the respondents’ argument notwithstanding, we perceive no abuse of

discretion in the ALJ’s calculation of the claimant’s AWW, and we conclude his determination is supported by substantial evidence in the record. In his order, the ALJ noted that pursuant to §8-42-102(3), C.R.S., he was granted discretionary authority to alter the statutory formula announced in §8-42-102(2), C.R.S. if it will not fairly determine the claimant’s AWW. However, the ALJ expressly held that there was no reason the claimant’s wages should be determined in any manner other than that provided by §8-42-102(2)(c) and (d), C.R.S. During the hearing, the claimant testified that during orientation, he was told that he would be working “six tens.” The claimant explained that “we were working Monday through Saturday, six tens, with Sunday being off.” Tr. at 18. Further, while the claimant testified he did not receive a written promise of a number of hours guaranteed or overtime, he was verbally told he would be working six tens. Tr. at 21. The claimant explained that had he not been hurt, he would have continued working overtime as best as he could have worked. Tr. at 19. The ALJ credited the claimant’s testimony. Section 8-43-301(8), C.R.S.; see Lymburn v. Symbios Logic, 952 P.2d 831 (Colo. App. 1997). In support of their argument that the ALJ’s AWW determination is in error, the respondents point to payroll records which indicate that after his injury, the claimant did not work 60-hour weeks. They also point to time entries of similarly situated employees, which they claim reflect average weekly hours ranging from 43.1 to 52.1. However, the existence of evidence which, if credited, might support a determination contrary to that reached by the ALJ does not afford us grounds to grant appellate relief. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). The ALJ is not required to cite or discuss every piece of evidence before crediting evidence to the contrary. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970). Rather, evidence not cited is implicitly rejected as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000). Regardless, we note the claimant testified that after he sustained his work injury, he continued to work with restrictions six days a week for 10 hours each day. However, he explained that during some of these post-injury weeks, he would miss work because of the pain from his work injury, even though he did not obtain a note from his physician excusing him from work. Tr. at 20-23, 25-26, 27-30, 31-32. Thus, under the foregoing circumstances, we perceive no basis to disturb the ALJ’s order.

VINCENT CRUZ W. C. No. 4-999-129-01 Page 5

IT IS THEREFORE ORDERED that the ALJ’s order dated June 3, 2016, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL David G. Kroll Kris Sanko

VINCENT CRUZ W. C. No. 4-999-129-01 Page 7

CERTIFICATE OF MAILING Copies of this order were mailed to the parties at the addresses shown below on 10/25/2016 ______ by _____ TT ________ . MICHAEL W SECKER, PC, Attn: LAWRENCE D SAUNDERS, ESQ, 402 WEST 12TH STREET, PUEBLO, CO, 81003 (For Claimant) RAY LEGO & ASSOCIATES, Attn: MICHAEL J BUCHANAN, C/O: GREGORY W PLANK, ESQ, 6060 S WILLOW DRIVE, GREENWOOD VILLAGE, CO, 80111 (For Respondents)

INDUSTRIAL CLAIM APPEALS OFFICE

W.C. No. 4-987-545-02 IN THE MATTER OF THE CLAIM OF BUCK LAMBERT,

Claimant, v. FINAL ORDER STURGEON ELECTRIC CO,

Employer, and ZURICH AMERICAN, Insurer, Respondents.

The respondents seek review of an order of Administrative Law Judge Farrell (ALJ) dated August 5, 2016, that awarded the claimant disfigurement benefits in the amount of $6,000. We affirm the order of the ALJ.

On appeal the respondents stated that the claimant was injured on June 25, 2015,

while working as a journeyman electrician. On that date he sustained burns to his arms when a dead wire came into contact with a live electrical current causing an arc flash. The claimant was placed at maximum medical improvement by his authorized treating physician. At that point the claimant requested a hearing in regard to disfigurement benefits, § 8-42-108 C.R.S. On August 5, 2016, the claimant appeared before the ALJ and she conducted an examination of his two burn scars.

The ALJ found that on the claimant’s right arm the claimant sustained a burn scar

which was characterized as ‘extensive.’ The scar was described as extending from three inches above the claimant’s elbow and reaching to his pinky finger. The claimant was also noted to possess a burn scar on his left arm which measured 3.5 inches by 2 inches. The ALJ did not make a finding as to the width of the scar on the right or the precise location of the scar on the claimant’s left arm. The ALJ awarded the claimant $6,000 in disfigurement benefits.

BUCK LAMBERT W. C. No. 4-987-545-02 Page 2

The respondents appeal the award. The respondents point out that the maximum award possible for disfigurement pursuant to § 8-42-108(1) is $4,673.47 (as applicable to the claimant’s date of injury)1. The ALJ is only able to award more than that amount if it is found that § 8-42-108 (2) applies. That section allows an enhanced award of disfigurement benefits, to a maximum of $9,345.38 (relative to the claimant’s date of injury) in the event the ALJ determines the claimant has suffered “(a) Extensive facial scars or burn scars, or (b) Extensive body scars or burn scars; or (c) Stumps due to loss or partial loss of limbs.” The respondents contend the record in this case does not support the ALJ’s finding of “extensive” scarring. They rely on dictionary definitions which define that term to mean a great, wide, or broad area. It is argued that the ALJ did not describe the width of the right arm scar thereby making it impossible to judge if it was sufficiently broad. The respondents also assert that a scar limited to one arm cannot be categorized as a scar covering an extensive area. The respondents reason the ALJ was not justified in ruling the claimant had extensive burn scarring.

The claimant counters that the ALJ’s findings are consistent with an award for

extensive burn scarring and this is not an instance of an abuse of discretion by the ALJ. Disfigurement benefits are awarded for the observable consequences of an

industrial injury. Arkin v. Industrial Commission, 145 Colo. 463, 358 P.2d 879 (1961). Section 8-42-108, however, affords the ALJ great discretion in determining the amount of compensation to be awarded for disfigurement. The ALJ views the disfigurement and is in the best position to assess what amount is appropriate. We may not interfere with the ALJ’s determination regarding the amount of the disfigurement award in the absence of an abuse of discretion. An ALJ only abuses her discretion if the order “exceeds the bounds of reason.” Rosenberg v. Board of Education of School District # 1, 710 P.2d 1095 (Colo. 1985). Both parties refer to the ALJ’s holding that the claimant has “extensive burn scarring on his right arm” as being either the basis for an enhanced award or an abuse of the ALJ’s discretion. However, we construe the meaning of the statutory phrase differently. Section 8-42-108(2) (b) allows for the higher award of benefits where there is either “extensive body scars” or “burn scars”. If the adjective ‘extensive’ were read to modify both ‘body scars’ and ‘burn scars’, then the addition of ‘burn scars’ would serve no purpose and would be superfluous. A body scar necessarily includes a burn scar. We perceive then, that any burn scar is subject to the higher maximum award pursuant to 8-

1 These awards are subject to annual adjustment by the Director of the Division of Workers’ Compensation pursuant to § 8-42-108(3).

BUCK LAMBERT W. C. No. 4-987-545-02 Page 3

42-108(2) (b), while scars other than burn scars will only qualify if they are also ‘extensive’. Because the parties agree both of the claimant’s scars are due to burns, the higher cap on disfigurement awards applicable to 8-42-108(2) (b) applies. This reading allows for a sensible effect to all of the statutes’ parts. The Supreme Court, in Carlson v. Ferris, 83 P.3d 504 (Colo. 2003), applied the rule of legislative interpretation which holds that: “We do not presume that the legislature used language idly and with no intent that meaning should be given to its language. Rather, the use of different terms signals an intent on the part of the General Assembly to afford those terms different meanings.” 83 P.3d at 509. In Carlson the Court had occasion to construe a statute which provided that “every driver of … a motor vehicle equipped with a safety belt system shall wear a fastened safety belt while the motor vehicle is being operated on a street or highway …” Carlson was a driver injured in a motor vehicle accident. Her car was equipped both with an automatic shoulder belt and a separate lap belt that had to be manually fastened. At the time of the accident she was wearing the automatic shoulder belt but not the separate manual lap belt. The trial court refused to provide the jury in Carlson’s suit for damages an instruction allowing for the mitigation of her damages for the reason that Carlson was in compliance with the statute because she was wearing at least the one of the available safety belts. The Supreme Court reversed this decision ruling that a reading of the statute showed Carlson was obligated to wear both the shoulder belt and the lap belt. The decision pointed out that the statue defined ‘safety belt system’ to include all of the belts installed to restrain passengers such as a lap belt, a shoulder belt or any other belt. It did not mean the belts at a particular seat. This use of the term ‘safety belt system’ was therefore distinct from the term ‘safety belt’. A system did not denote just one belt while a safety belt did. The Court reasoned:

Thus, had the General Assembly intended that a driver or a front seat passenger of an automobile that has been equipped with both a lap and a shoulder belt … wear only one of the belts described in the definition of "safety belt system", it would have simply required that a single "belt" be worn in order for an individual to comply with § 42-4-237(2). The General Assembly would not have included the word "safety" in the term "fastened safety belt." Similarly, had the General Assembly intended that a driver … wear an entire "system,"

BUCK LAMBERT W. C. No. 4-987-545-02 Page 4

it would have worded section § 42-4-237(2) to require that drivers … wear a "fastened safety belt system." 85 P. 3d at 509.

In order to ensure each of the words used had meaning, the Court concluded a ‘system’ and a ‘fastened safety belt’ were not redundant or interchangeable terms. This same analysis applies in this matter. As noted, if the term ‘extensive’ applied equally to both ‘body scars’ and ‘burn scars’, the General Assembly would have been using a redundant, unnecessary, term . This would occur because an extensive ‘body scar’ would necessarily include an extensive ‘burn scar’. However, by reading ‘extensive’ to apply only to ‘body scar’, and not to ‘burn scar’, it becomes apparent “the use of different terms signals an intent on the part of the General Assembly to afford those terms different meanings.” Accordingly, § 8-42-108(2) (b) should be read to apply to any burn scar, and not only to those that are also deemed extensive. Such a reading is consistent with the legislative intent to provide additional benefits to claimant’s who have sustained particularly disfiguring injuries. A burn scar could be seen by the General Assembly as typically more apparent, obtrusive and eye catching then other disfigurements. It may appear more unnatural and more difficult to cover up or mitigate then other categories of scars. For this reason the legislature provided for enhanced disfigurement benefits when an affliction is generated by a burn.

Here, we cannot say that the ALJ's order exceeds the bounds of reason. Initially, we note that the respondents did not request a copy of the transcript and, therefore, the ALJ's findings are presumed to be supported by the evidence. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo. App. 1988). The ALJ's order indicates she considered the totality of the appearance of the claimant's right and left arm in determining how much was warranted in disfigurement benefits. Based on these findings, the ALJ concluded that the claimant sustained a serious permanent disfigurement to areas of the body normally exposed to public view and she awarded the claimant $6000.00 for that disfigurement. It is explicit from the ALJ's order that she accepted the claimant’s explanation that the scars amounted to scars from burns for purposes of § 8-42-108 (2)(b), and we may not substitute our judgment for that of the ALJ. The ALJ's evaluation of the claimant's disfigurement and the corresponding award are supported by the facts and are consistent with the statutory provision governing such awards. Section 8-42-108(2). Thus, we are unable to conclude that the ALJ abused her discretion in awarding disfigurement benefits under § 8-42-108 (2)(b) rather than pursuant to § 8-42-108 (1).

BUCK LAMBERT W. C. No. 4-987-545-02 Page 5

IT IS THEREFORE ORDERED that the ALJ’s order issued August 5, 2016 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

David G. Kroll Brandee DeFalco-Galvin

BUCK LAMBERT W. C. No. 4-987-545-02 Page 7

CERTIFICATE OF MAILING Copies of this order were mailed to the parties at the addresses shown below on 10/28/16 ______ by _____ TT ________ . LAW OFFICE OF VINCENT M BALKENBUSH LLC, Attn: VINCENT M BALKENBUSH, ESQ, 385 INVERNESS PARKWAY SUITE 120, ENGLEWOOD, CO, 80112 (For Claimant) THE KITCH LAW FIRM PC, Attn: MICHELLE L PRINCE, ESQ, 31207 KEATS WAY STE 104, EVERGREEN, CO, 80439 (For Respondents)

INDUSTRIAL CLAIM APPEALS OFFICE

W.C. No. 4-965-037-02

IN THE MATTER OF THE CLAIM OF ANTONIA MAGALI-TAMAYO,

Claimant, v. FINAL ORDER TRIOAK FOODS WEST,

Employer, and TRAVELERS INSURANCE COMPANY OF CONNECTICUT, Insurer, Respondents.

The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated June 7, 2106, that found the claimant did not sustain an injury at work and denied her request for temporary disability benefits and medical benefits. We affirm the decision of the ALJ.

The claimant had been working at the employer’s farm for two weeks on October

23, 2014, when she was standing on a pig cage, slipped and had her left foot fall through a crate causing bruising to her left leg. A co-employee accompanied the claimant to the lunch room where she elevated her leg. The employee left the room momentarily and then heard a thump. Upon returning to the lunch room the claimant was found lying on the floor. The claimant was rotated to her side and opened her eyes. An ambulance was summoned. The ambulance attendants noted the claimant was responsive with no signs of any seizure activity. The claimant denied any recollection of events occurring in the lunch room. She stated she did not recall her birth date. The claimant was transported from the emergency room in Eads, Colorado, to Memorial Hospital in Colorado Springs.

The physician examining the claimant at Memorial Hospital recorded that the

claimant’s family noted the claimant was appearing normal. A CT scan of the brain was unremarkable. MRIs of the brain also revealed no significant findings. An EEG exam was normal and provided no evidence of seizure activity. No evidence of head trauma, such as bruising, lacerations or localized pain complaints were present. Dr. McDonald at

ANTONIA MAGALI-TAMAYO W. C. No. 4-965-037-02 Page 2 Memorial Hospital conducted two neurological evaluations of the claimant and concluded her complaints of dizziness and forgetfulness could not be caused by “any abnormality in the nervous system.” The claimant was released from the hospital. The respondents denied the compensability of any brain or head injury.

The claimant underwent an examination by Dr. Timothy Hall, M.D. The

respondents arranged for an evaluation by Dr. Henry Roth, M.D. Both physicians submitted reports and testified at the April 21, 2016, hearing in the matter. Dr. Hall noted the claimant’s complaints of forgetfulness, dizziness, lethargy and cranial pain as consistent with an unresolved traumatic brain injury. Dr. Roth observed the objective tests, such as the MRI, CT scan and EEG, as ruled out a brain injury. Dr. Roth instead, determined a more likely diagnosis was a somatic disorder, or hysterical reaction, to the claimant’s fall in the pig cage.

The ALJ did not rely on the conclusions of either of the medical experts. The ALJ

surmised from the tests and observations of the claimant made while she was hospitalized that the claimant did not sustain an injury through work on October 23 that could be seen to have caused the symptoms for which she complained. The ALJ determined the claimant did not meet her burden of proof to establish she sustained an injury through any event arising out of and in the course of the claimant’s employment.

On appeal, the claimant contends the ALJ committed error by failing to address

several aspects of the evidence in the record. The claimant also argues the ALJ did not follow the direction provided in City of Brighton v. Rodriquez., 318 P.3d 496 (Colo. 2014) which noted that an unexplained fall was a neutral category of events that is to be considered compensable if a but-for test places the fall within the time and circumstances of the claimant’s employment.

In City of Brighton, the Colorado Supreme Court addressed whether an

unexplained fall while at work satisfies the "arising out of" employment requirement of Colorado's Workers' Compensation Act, §8-41-301(1)(c), C.R.S., and is thus compensable as a work-related injury. In that case, the Court identified the following three categories of risks that cause injuries to employees: (1) employment risks directly tied to the work itself; (2) personal risks, which are inherently personal; and (3) neutral risks, which are neither employment related nor personal. The Court held that the first category of risks encompasses risks inherent to the work environment and are compensable, while the second category of personal risks is not, unless an exception applies. The third category of neutral risks would be compensable if the application of a but-for test revealed that the simple fact of being at work would have caused any

ANTONIA MAGALI-TAMAYO W. C. No. 4-965-037-02 Page 3 employee to be injured. For example, if an employee was struck by lightning while at work, his resulting injuries would be compensable because any employee standing at that spot at that time would have been struck. Therefore, but for the requirements of the job, no one would have been struck by the lightning.

The City of Brighton decision featured a claimant injured when she fell down

some stairs as she walked to her office. Her injury occurred when she hit her head on the stairs. The ‘unexplained’ element of her injury involved the reason she lost her balance and fell. However, the Court noted the absence of conclusive evidence on this point did not represent a significant barrier to resolving the issue of compensability. The application of the but-for test, rendered the claim compensable. If, but-for the claimant’s need to access her office, she would not have even been on those stairs, she would have not hit her head.

The Court however, also concluded that the but-for test does not relieve the

employee of the burden of proving causation. The employee was said to be required, by a preponderance of the evidence, to show a sufficient nexus between the conditions and obligations of employment and the employee’s injury. Id. at 502.

Here, when the ALJ observed in ¶ 9 of his Conclusions of Law “that since this

case establishes a truly unexplained fall, it falls within the personal risk”, he was misapplying the standards discussed in City of Brighton. The claimant fell out of her chair in the lunch room. That ‘unexplained fall’ could have placed the incident within the ‘neutral’ category of risk. However, we conclude the error was harmless since the ALJ also determined that the claimant did not sustain a head injury or any injury during her unexplained fall in the break room. As noted above, in City of Brighton, if the claimant fails to satisfy her burden of demonstrating a nexus between the conditions of employment and the injury, then the claim is non compensable, regardless of the three categories of risk. The ALJ expressly held as follows:

9. … There is insufficient evidence to establish that the claimant was injured due to a positional risk. The ALJ concludes that the ‘bur for’ test is inapplicable because we do not know what caused the claimant to sustain her cognitive deficits. There is insufficient evidence to establish that the claimant struck her head, thus the claimant has failed to

ANTONIA MAGALI-TAMAYO W. C. No. 4-965-037-02 Page 4

establish just exactly what injury may have been suffered, if any.

… 11. The ALJ concludes based upon the above that the

claimant has failed to establish by a preponderance of the evidence that she sustained an injury arising out of and in the course of her employment with the respondent-employer.

The claimant cites to several pieces of evidence which she maintains are adequate to establish the compensability of her injuries. The claimant notes the diagnosis of a physician’s assistant which includes a left leg injury and a head injury. This P.A. recommends treatment for these body parts and limits the claimant’s ability to return to work. The claimant also refers to the testimony of Dr. Hall who deduced that the claimant’s subjective symptoms were characteristic of an individual with a brain injury. The claimant finally references the testimony of the claimant’s sister in law who witnessed that the claimant now appears disoriented and withdrawn. The ALJ did not address these items. However, the existence of evidence which, if credited, might support a determination contrary to that reached by the ALJ does not afford us grounds to grant appellate relief. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). The ALJ is not required to cite or discuss every piece of evidence before crediting evidence to the contrary. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970). Rather, evidence not cited is implicitly rejected as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000). In addition, the ALJ did not need to find the claimant did not have a head injury, or depression or a hysterical reaction. Instead, the ALJ discerned that the claimant did not show she hit her head while at work on October 23. The evidence the claimant relies upon does not require a conclusion the claimant’s condition was work related.

To establish that an injury arose out of an employee's employment, there must be a

“causal connection between the employment and injury such that the injury has its origins in the employee's work-related functions and is sufficiently related to those functions to be considered part of the employment contract." Madden v. Mountain West Fabricators, 977 P.2d 861, 863 (Colo. 1999).

The determination of whether there is a sufficient "nexus" or causal relationship

between the claimant's employment and the injury is generally one of fact, which the ALJ must determine based on the totality of the circumstances. In Re Question Submitted by

ANTONIA MAGALI-TAMAYO W. C. No. 4-965-037-02 Page 5 the United States Court of Appeals, 759 P.2d 17 (Colo. 1988); Moorhead Machinery & Boiler Co. v. Del Valle, 934 P.2d 861 (Colo. App. 1996). We must therefore uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ's assessment of the sufficiency and probative weight of the evidence. Metro Moving v. Gussert, 914 P.2d 411 (Colo. App. 1995). Thus, the scope of our review is exceedingly narrow. Id.

Here, the ALJ reviewed the emergency room records from Weisbrod Memorial

Hospital in Eads and then from Memorial Hospital in Colorado Springs. There was found to be no signs of trauma to the claimant’s head. A CT scan of the claimant’s head was unremarkable. The claimant, as well as her family informed the doctor she felt fine and that the claimant was behaving in a normal fashion. An EEG revealed no signs of seizure activity. The claimant underwent a partial and a complete MRI. The ALJ cited to Dr. McDonald’s summation: “Probable nonspecific dizziness, I doubt there is an abnormality of nervous system causing this. Plan is to complete brain MRI under conscious sedation today and if negative she should be able to go home.” Following this last MRI, Dr. McDonald stated “brain MRI negative, I will sign off.” The ALJ found there was no witnessing to any fall by the claimant. Her co-worker left the room and then heard a noise. When the worker returned the claimant was found lying down. The claimant states she has no recollection of any event occurring in the lunch room. These entries in the record constitute substantial evidence to support the ALJ’s conclusion that the claimant did not hit her head on October 23. As a result, no adequate nexus has been shown between symptoms of a head injury and the circumstances of the claimant’s employment. Accordingly, the standard for compensability set forth in City of Brighton has not been attained. Detlof v. Estes Express, W.C. No. 4-908-381-02 (May 28, 2015); Miles v. City of Denver, W.C. No. 4-961-742-01 (December 15, 2015); Elatabami v. Canterbrury Gardens, W.C. No. 4-935-819-02 (September 23, 2015).

IT IS THEREFORE ORDERED that the ALJ’s order issued June 7, 2016, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

David G. Kroll Kris Sanko

ANTONIA MAGALI-TAMAYO W. C. No. 4-965-037-02 Page 7

CERTIFICATE OF MAILING Copies of this order were mailed to the parties at the addresses shown below on 10/28/16 ______ by _____ TT ________ . THE MCDIVITT LAW FIRM PC, Attn: NICOLE B SMITH, ESQ, 19 EAST CIMARRON, COLORADO SPRINGS, CO, 80903 (For Claimant) THOMAS POLLART & MILLER LLC, Attn: BRAD J MILLER, ESQ, C/O: BRYN SEARNS ESQ, 5600 S QUEBEC STREET SUITE 220-A, GREENWOOD VILLAGE, CO, 80111 (For Respondents)

INDUSTRIAL CLAIM APPEALS OFFICE

W.C. No. 4-968-013-02

IN THE MATTER OF THE CLAIM OF RAE SHAIKH,

Claimant, v. FINAL ORDER COLORADO SPRINGS TRANSPORTATION,

Employer, and OLD REPUBLIC INSURANCE COMPANY, Insurer, Respondents. The respondents seek review of an order of Administrative Law Judge Broniak (ALJ) dated April 15, 2016, that denied their request to reduce the claimant’s compensation by fifty percent under §8-42-112(1)(a), C.R.S. for the willful failure to use a safety device. We affirm. This case previously was before us. In the respondents’ previous appeal, they did not dispute that the claimant, a taxi cab driver, was an independent contractor and self-employed under a contract with Yellow Cab. However, they argued that for purposes of imposing the fifty percent reduction in §8-42-112(1)(b), C.R.S., for a safety rule violation, Yellow Cab was the "employer" and the claimant was subject to Yellow Cab's safety rule requiring the use of a seat belt. We rejected the respondents’ argument, concluding that substantial evidence supported ALJ Walsh’s finding that the respondents did not produce credible evidence to show that the claimant herself had adopted a safety rule requiring that she wear a seat belt while she was driving a cab.1 This order was 1 In their petition to review ALJ Walsh’s prior order, the respondents listed the issue of whether the ALJ erred in failing to address application of §8-42-112(1)(a), C.R.S., (willful failure of the employee to use safety devices provided by the employer). The respondents filed a motion for corrected order, requesting ALJ Walsh to enter an order addressing this subsection of the statute as well. In an order dated July 10, 2015, ALJ Walsh denied the respondents' request, concluding that the issue of a safety device was not endorsed as an issue for hearing.

RAE SHAIKH W. C. No. 4-968-013-02 Page 2 affirmed by the Colorado Court of Appeals in Colorado Springs Transportation v. Industrial Claim Appeals Office, 15CA2161 (Oct. 6, 2016). The Court expressly held that substantial evidence supported ALJ Walsh’s finding that the claimant was an independent contractor, and because she was not Yellow Cab’s employee, she was not subject to its safety rules. Thereafter, the claimant applied for a hearing on the issue of medical benefits. Prior to the hearing, the respondents moved to add the issue of a fifty percent reduction in benefits under §8-42-112(1)(a), C.R.S. as a result of the claimant’s alleged failure to use a safety device. ALJ Walsh granted the respondents’ motion. The claimant later withdrew the issue of medical benefits, and the only issue presented for determination before ALJ Broniak was whether the claimant failed to use a safety device provided by her employer thereby subjecting her to a fifty percent reduction in compensation under §8-42-112(1)(a), C.R.S. During the hearing before ALJ Broniak, the parties agreed to present the matter using position statements and exhibits, including the transcript of the hearing that previously was held before ALJ Walsh. After the hearing, the ALJ entered her order denying the respondents’ request for imposition of a safety device violation under §8-42-112(1)(a), C.R.S. The ALJ found that the claimant worked as a self-employed taxi cab driver. The claimant entered into a lease purchase agreement with Yellow Cab to purchase a vehicle, and is considered an independent contractor. The vehicle is equipped with safety belts. The claimant was injured on November 23, 2014, when she was driving her taxi cab and was involved in a motor vehicle accident. The respondents admitted liability. The ALJ found the claimant was wearing a safety belt prior to the motor vehicle accident, but admittedly removed the safety belt just prior to impact leaving her unrestrained.2 The ALJ found that as a result, the claimant was thrown into the front passenger seat. Based on the most recent medical records in evidence, the ALJ found that the claimant’s chief complaints include neck and shoulder pain. She found that it was “unknown from the medical records which injuries may have been sustained due to Claimant’s failure to wear a safety belt, and the Claimant did not testify at the hearing.” The ALJ also found that during her testimony at the prior hearing before ALJ Walsh, the claimant did not admit her injuries would have been different or minimized had she kept her safety belt on prior to impact. Thus, the ALJ ultimately concluded the respondents did not prove that the claimant’s failure to use a

2 The ALJ found that the claimant disengaged her safety belt because she previously had been trapped in a car.

RAE SHAIKH W. C. No. 4-968-013-02 Page 3 safety belt caused her injuries. While the ALJ found the claimant willfully removed her safety belt prior to the motor vehicle accident, she concluded that the respondents offered no persuasive evidence that the claimant “would not have sustained the same injuries had she kept her safety belt on throughout the accident.” The ALJ therefore ordered that the respondents were not entitled to reduce the claimant’s compensation by fifty percent under §8-42-112(1)(a), C.R.S. On appeal, the respondents contend that the ALJ applied an incorrect evidentiary standard when denying the penalty against the claimant. They argue that the ALJ improperly conditioned the imposition of a penalty on a medical statement as to causation. The respondents contend that this requirement is absent under §8-42-112, C.R.S. Additionally, the respondents contend that the ALJ misapplied §8-42-112(1)(a), C.R.S. By finding that the respondents “offered no persuasive evidence that Claimant would not have sustained the same injuries had she kept her safety belt on throughout the accident,” the respondents contend the ALJ has “so narrowly construed” the statute as to improperly impose full liability. They further contend that §8-42-112(1)(a), C.R.S. does not require them to prove a negative. We are not persuaded the ALJ erred. Section 8-42-112(1)(a), C.R.S. provides as follows:

(1) The compensation provided for in articles 40 to 47 of this title shall be reduced fifty percent: (a) Where injury is caused by the willful failure of the employee to use safety devices provided by the employer. . . .

When a court construes a statute, it must determine and give effect to the intent of the general assembly by affording the language of the statute its plain and ordinary meaning. A statute must be construed in a manner that gives effect to the legislative purpose underlying its enactment. See USF Distribution Services v. Industrial Claim Appeals Office, 111 P.3d 529 (Colo. App. 2004). The plain language of §8-42-112(1)(a), C.R.S. clearly provides that the failure to use a safety device must be the "cause" of the injury. Cf. Stearns-Roger Mfg. Co. v. Casteel, 128 Colo. 289, 261 P.2d 228 (Colo. 1953)( intoxication of claimant must be a proximate cause of the injury). The question of whether the respondents proved the claimant’s failure to use a safety device was a proximate cause of the injury is one of fact for determination by the ALJ. Cf. Tatum-Reese Development Corp. v. Industrial Commission, 30 Colo. App. 149, 490 P.2d 94 (1971). The mere concurrence of an injury and an alleged cause does not

RAE SHAIKH W. C. No. 4-968-013-02 Page 4 require the ALJ to draw the inference of causation. See J.C. Carlile Corp. v. Anataki, 162 Colo. 376, 426 P.2d 549 (1967)(blood alcohol level of .173 did not require inference that decedent’s automobile accident was caused by intoxication). Because the issue is factual in nature, we must uphold the ALJ’s finding if supported by substantial evidence. Section 8-43-301(8), C.R.S. In applying this standard, we must defer to the ALJ's resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the evidence. Metro Moving & Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). Here, we perceive no error in the ALJ’s finding that the respondents did not satisfy their burden in proving that the claimant’s failure to use the safety belt caused her injuries. The respondents’ argument notwithstanding, nowhere in her order does the ALJ expressly condition the imposition of a penalty under §8-42-112(1)(a), C.R.S. solely on a “medical statement” as to causation. Rather, when making her determination, the ALJ considered the totality of the evidence, including the testimony of the claimant and the medical evidence. In her order, the ALJ specifically noted that the claimant did not testify at the hearing before her, and during the prior hearing before ALJ Walsh, the claimant “did not admit that her injuries would have been different or minimized had she kept her safety belt on prior to impact.” The ALJ specifically found that “there was little testimony provided concerning the nature of [the claimant’s] injuries.” ALJ Order at 2 ¶8. Consequently, the ALJ considered all the evidence, medical and otherwise, to determine that the respondents failed to satisfy their burden. Further, as noted above, the mere concurrence of an injury and a claimed cause does not require the ALJ to draw the inference of causation. Cf. J.C. Carlile Corp. v. Anataki, supra. Moreover, we do not agree with the respondents’ contention that the ALJ has “so narrowly construed section 8-42-112 so as to impermissibly impose full liability” in this matter. Brief In Support at 6. The record provided did not require the ALJ to find a causal relationship between the claimant’s failure to wear a safety belt and her subsequent injuries. It certainly was plausible for the ALJ to view the evidence as indicating that the claimant’s failure to wear a safety belt would not have been a proximate cause of the injury because the injuries would have occurred regardless of use of the safety belt. Further, to the extent the respondents argue that the ALJ erred in requiring them to prove a negative, we are not persuaded there is any reversible error. In her order, the ALJ correctly placed the burden on the respondents to prove “the Claimant’s failure to use a safety belt caused her injuries.” Order at 3 ¶5; §8-42-112(1)(a), C.R.S. Consequently, we are unable to say the ALJ erred by concluding the respondents did not establish that the claimant’s failure to use a safety device was a proximate cause of her injuries. See Electric Mutual Liability Insurance Co. v. Industrial

RAE SHAIKH W. C. No. 4-968-013-02 Page 5 Commission, 154 Colo. 491, 391 P.2d 677 (1964)(court will not disturb finding that the claimant’s intoxication was not the proximate cause of the accident where there was no testimony that the decedent's driving ability was impaired); Tatum-Reese Dev. Corp. v. Industrial Commission, supra. Thus, we see no basis to disturb the ALJ's order. Section 8-43-301(8), C.R.S.

IT IS THEREFORE ORDERED that the ALJ’s order dated April 15, 2016, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

Brandee DeFalco-Galvin Kris Sanko

RAE SHAIKH W. C. No. 4-968-013-02 Page 7

CERTIFICATE OF MAILING Copies of this order were mailed to the parties at the addresses shown below on 10/24/2016 ______ by _____ TT ________ . HEUSER & HEUSER, L.L.P., Attn: GORDON J. HEUSER, ESQ., 625 N. CASCADE AVENUE, SUITE 300, COLORADO SPRINGS, CO, 80903 (For Claimant) MOSELEY, BUSSER & APPLETON, P.C., Attn: SCOTT M. BUSSER, ESQ., 6855 HAVANA STREET SUITE 630, CENTENNIAL, CO, 80112 (For Respondents)

INDUSTRIAL CLAIM APPEALS OFFICE

W.C. No. 4-995-888-01

IN THE MATTER OF THE CLAIM OF CARLOS WILLIAMS,

Claimant, v. FINAL ORDER HALLIBURTON ENERGY SERVICES,

Employer, and ACE AMERICAN INSURANCE COMPANY, Insurer, Respondents.

The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated April 18, 2016, that determined the claimant exercised his right to select a treating physician by choosing to treat with Injury of Care of Colorado. We affirm the ALJ’s order.

This matter went to hearing on the issues of compensability and the determination

of the claimant’s authorized treating physician. After hearing the ALJ entered factual findings that for purposes of review can be summarized as follows. The ALJ determined that the claimant sustained a compensable injury on March 12, 2015. On this date the claimant and a co-worker were moving an iron pipe by carrying it on their shoulders. As the claimant lowered the bar he experienced a pop in his right shoulder area. The claimant completed his work shift and went home about two or three hours after the incident. The next day the claimant contacted his supervisor and reported his shoulder injury.

The employer directed the claimant to Injury Care of Colorado for medical

treatment. The employer did not provide the claimant with a written list of at least four designated medical providers at this time. Injury Care of Colorado diagnosed the claimant with a shoulder strain/sprain. The claimant was released to full duty, prescribed x-rays and a follow-up visit was recommended. The claimant underwent an MRI on April 22, 2015, which revealed an Acriomioclavicular (AC) joint separation.

CARLOS WILLIAMS W. C. No. 4-995-888-01 Page 2

The employer provided the claimant with a designated provider list on April 30, 2015, notifying the claimant that he could obtain treatment from any of the four enumerated providers. The claimant hand wrote on the list that he chose Injury Care of Colorado from the designated provider list. The claimant continued to receive conservative treatment.

On October 8, 2015, Dr. Miller examined the claimant and determined that the

claimant sustained a right AC joint injury that was aggravated by his work activities. Dr. Miller assigned work restrictions and recommended a follow-up appointment in three weeks.

Based on these findings the ALJ found that the “[c]laimant has failed to establish

that it is more probably true than not that the right of medical selection passed to him because respondents did not provide a written list of at least four designated medical providers within seven days after receiving notice of his injury.” ALJ Order at 4 ¶ 15. The ALJ went on to find that the employer provided the claimant with a designated provider list on April 30, 2015 and the claimant signified through his words and conduct that he had chosen a physician to treat his injury. The ALJ stated, “[c]laimant has thus already exercised his right of selection and chose Injury Care of Colorado to treat his March 12, 2015, right AC joint injury.” ALJ Order at 4 ¶ 16. In the Conclusions of Law section of the order, the ALJ recites the applicable law requiring the respondents to provide a list of at least four designated medical providers within seven business days following the date the employer has notice of the injury. The order also refers to §8-43-404(5)(a)(I)(A), C.R.S., which states that if the services of a physician are not tendered at the time of the injury, the employee shall have the right to select a physician. The order further references WCRP 8-2(E) which states that if the employer failed to supply the required designated provider list in accordance with this rule, the injured worked may select an authorized treating physician of his choosing. The ALJ concluded that the claimant exercised his right of selection and chose Injury Care of Colorado to treat his March 12, 2015, right AC joint injury. ALJ Order at 7 ¶ 14.

On appeal the claimant argues that the ALJ erred in his determination that the

claimant had not established his right to choose a treating doctor. The claimant also argues that even if the ALJ determined the right of selection had passed to the claimant because the employer failed to timely provide the designated provider list, the claimant’s choice to continue to treat with Injury Care of Colorado was not a valid and informed “choice.” The claimant also contends that the ALJ erred in his determination that the letter from the claimant’s attorney to the insurer choosing Dr. Miller as the authorized

CARLOS WILLIAMS W. C. No. 4-995-888-01 Page 3 treating physician was hearsay. We are not persuaded the ALJ committed reversible error.

The respondents are liable for authorized medical treatment that is reasonable and necessary to cure or relieve the effects of the industrial injury. Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo. App. 1999); Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo. App. 1990). "Authorization" refers to the physician's legal status to treat the injury at the respondents' expense. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo. App. 1997). Whether or not a provider is an authorized treating provider is generally a question of fact for the ALJ which must be upheld if supported by substantial evidence in the record. See Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo. App. 1996); Popke v. Industrial Claim Appeals Office, supra. Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985).

Section 8-43-404(5)(a)(I)(A), C.R.S., provides, in pertinent part:

[t]he employer or insurer has the right in the first instance to select the physician who attends said injured employee. If the services of a physician are not tendered at the time of injury, the employee shall have the right to select a physician or chiropractor. "

WCRP 8-2(A), provides a framework for providing the required list of physician and similarly states that "[w]hen an employer has notice of an on the job injury, the employer or insurer shall provide the injured worker with a written list ...." WCRP 8-2(D) further provides that if the employer fails to comply with this Rule 8-2, the injured worker may select an authorized treating physician of the workers' choosing.

Once the right of selection is exercised, the claimant may not change physicians without permission from the insurer or the ALJ. Yeck v. Industrial Claim Appeals Office, supra.

Although the ALJ here found in one part of the order that the claimant failed to establish that the right of medical selection passed to him, the ALJ also found and concluded that the claimant exercised his right of selection by choosing to treat with Injury Care of Colorado. ALJ Order at 8 ¶2. Thus, as we understand the ALJ’s order, he finds that the right of selection passed to the claimant when the respondents failed to

CARLOS WILLIAMS W. C. No. 4-995-888-01 Page 4 timely provide the claimant with a list of designated physicians as required by the statute and rule. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000)(the ALJ is not held to a crystalline standard in articulating her findings of fact and we may consider findings that are necessarily implied by the ALJ's order). And, because the claimant signified through his words and conduct that he chose Injury Care of Colorado to continue treating his injury, the claimant exercised his right of selection at that time. We perceive no error in the ALJ’s determination.

As the claimant recognizes, the panel previously has held that where the claimant has signified "by words or conduct that he has chosen a physician to treat the industrial injury" he has made a physician 'selection'. Pavelko v. Southwest Heating and Cooling, W.C. No. 4-897-489 (Sept. 4, 2015), Tidwell v. Spencer Technologies, W.C. No. 4-917-514 (March 2, 2015); Loy v. Dillon Companies, W.C. No. 4-972-625 (February 19, 2016); Miller v. Rescare, Inc., W.C. No. 4-761-223 (Sept. 16, 2009); Squittieri v. Tayco Screen Printing, Inc., W.C. No. 4-421-960 (September 18, 2000); Although the claimant contends that these prior panel decisions improperly construe WCRP 8-2 we are not persuaded to depart from the prior holdings.

The claimant testified that even after he was given the designated provider list on April 30, 2015, he continued to treat with Injury Care of Colorado. Tr. at 21-23. He also identified his signature on respondents’ exhibit D at 53 and his writing on that document that he preferred to continue to treat with Injury Care of Colorado. Id. We conclude that the choice of physician had passed to the claimant as a consequence of the employer's failure to comply with § 8-43-404(5)(a)(I)(A). C.R.S. and the application of WCRP Rule 8-2 (E). The factual findings pertinent to the conduct of the claimant leads to the conclusion the claimant selected to continue to treat with Injury Care of Colorado and these findings are supported by substantial evidence. Consistent with the panel’s prior holdings, the claimant demonstrated by his actual conduct in undergoing treatment Injury Care of Colorado that he had made his selection.

The claimant also complains that the ALJ erred in excluding, as hearsay, the claimant’s attorney’s letter choosing to treat with Dr. Miller. Under C.R.E. 801(c) hearsay is a "statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." The claimant contends that the letter was not offered to prove the truth of the matter asserted, but instead was offered “res gestae” because it identified the doctor the claimant choose as a result of the violation of statute and rule by the respondents who failed to supply the required designated provider list.

CARLOS WILLIAMS W. C. No. 4-995-888-01 Page 5

We do not perceive reversible error by the ALJ. The critical question was whether the right of selection had passed to the claimant because of the respondents’ failure to provide the designated provider list and, if the right of selection had passed, had the claimant exercised that right by choosing a physician. The claimant presented the attorney letter to show that the right of selection had passed and that he had exercised his right to select Dr. Miller. We did not find it necessary to review the ALJ’s hearsay because the ALJ’s exclusion of the letter was harmless. The letter was merely cumulative of the other evidence in the record demonstrating that the right of selection had passed and the claimant disputed that he exercised that right of selection by continuing to treat with Injury Care of Colorado. The claimant testified to these very same facts at hearing. Tr. at 22-23. Therefore, even if ALJ erred in failing to admit the letter there is no reversible error.

IT IS THEREFORE ORDERED that the ALJ’s order dated April 18, 2016, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

Brandee DeFalco-Galvin David G. Kroll

CARLOS WILLIAMS W. C. No. 4-995-888-01 Page 7

CERTIFICATE OF MAILING Copies of this order were mailed to the parties at the addresses shown below on 10/28/16 ______ by _____ TT ________ . IRWIN CARMICKLE FRALEY, LLP, Attn: ROGER FRALEY JR, ESQ, 6377 S REVERE PARKWAY SUITE 400, CENTENNIAL, CO, 80111 (For Claimant) RITSEMA & LYON PC, Attn: RICHARD A BOVARNICK, ESQ, 999 18TH STREET SUITE 3100, DENVER, CO, 80202 (For Respondents)

15CA2095 Serena v ICAO11-03-2016 COLORADO COURT OF APPEALS Court of Appeals No. 15CA2095 Industrial Claim Appeals Office of the State of Colorado WC No. 4-922-344 Velvet Serena, Petitioner, v. Industrial Claim Appeals Office of the State of Colorado; SSC Pueblo Belmont OP CO, LLC; and Ace American Insurance, Respondents.

ORDER AFFIRMED

Division V Opinion by JUDGE FREYRE

Kapelke* and Nieto*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 3, 2016

Turner, Roepke & Mueller, LLC, Kimberly Roepke, Colorado Springs, Colorado, for Petitioner No Appearance for Respondent Industrial Claim Appeals Office Ritsema & Lyon, P.C., Richard Bovarnick, Denver, Colorado, for Respondents SSC Pueblo Belmont OP CO, LLC and Ace American Insurance *Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2016.

DATE FILED: November 3, 2016 CASE NUMBER: 2015CA2095

1

¶ 1 In this workers’ compensation action, claimant, Velvet Serena,

seeks review of a final order of the Industrial Claim Appeals Office

(Panel) which affirmed in part and set aside in part a decision of an

administrative law judge (ALJ). The Panel affirmed the ALJ’s

finding that claimant’s back condition was unrelated to her work

injury, but set aside the ALJ’s inclusion of an additional ten percent

impairment rating to each shoulder for claimant’s shoulder

surgeries. We affirm the Panel’s decision.

I. Background

¶ 2 Claimant worked as a physical therapist assistant at Belmont

Lodge, a residential senior care facility operated by employer, SSC

Pueblo Belmont Op Co. LLC. In September 2012, she was helping a

patient use the toilet when he lost his balance. Claimant strained

her shoulders reaching forward to catch him and prevent him from

falling.

¶ 3 Employer admitted liability for the injury and sent claimant for

treatment. At her initial visit, claimant reported “having aching

pain in bilateral shoulder, legs, bilateral arms, and legs, she is

having stabbing pain in her low back and burning pain mid back,

aching pain in her hands with numbness, pins and needle

2

sensation, she is having stabbing pain in her left arm.” The

authorized treating physician (ATP), Dr. Terrance Lakin, diagnosed

“paresthesia – hands; WC back strain – lumbar; WC back strain –

thoracic; WC cervical strain; WC leg pain – bilateral; WC somatic

dysfunction – spine – cervical-thoracic-lumbar.”

¶ 4 Dr. Lakin eventually ordered imaging studies of claimant’s

spine and shoulder to assist in diagnosing the cause of claimant’s

ongoing pain complaints. MRIs of claimant’s bilateral shoulders

indicated claimant sustained a “high grade partial tear of the

rotator cuff” of the right shoulder, and “mild rotator cuff

impingement and subacromial bursitis” of the left shoulder.

Claimant underwent arthroscopic subacromial decompression (also

called acromioplasty), arthroscopic subscapularis rotator cuff

repair, and arthroscopic biceps tenodesis on her left shoulder in

May 2013. The surgery repaired the “subscap” and the tendon;

secured the biceps to the shoulder joint; removed a “significant

amount of inflamed bursa”; and, shaved the acromium by 3-4 mm

on each side. Six months later, claimant had arthroscopic

subacromial decompression and arthroscopic rotator cuff repair to

her right shoulder. The right acromioplasty removed 2-3 mm of

3

tissue on either side of the acromium, and the rotator cuff repair

sutured a 1 cm tear. At follow-up visits with her surgeon six weeks,

three months, and five months post-surgery, claimant was “doing

well with complaints of only minimal pain.”

¶ 5 Claimant’s complaints of upper back and neck pain led to an

MRI of her cervical spine in November 2012 which revealed “chronic

posterior-central herniation of the nucleus pulposus” at the C3-4

level. But, an MRI taken in 2008 of her cervical spine had also

uncovered “a small posterior central C3-4 disc herniation.” Based

on the similarities between the 2008 and 2012 spinal MRIs, Dr.

Lakin concluded claimant’s upper back and neck pain were

preexisting and not caused by the September 2012 work incident.

¶ 6 In late 2013 or early 2014, claimant began complaining of low

back pain, as well. Dr. Lakin advised her, though, that because her

low back complaints arose so long after the September 2012 injury,

he had a “difficult time” relating her low back pain to the work

injury.

¶ 7 A few months later, Dr. Lakin placed claimant at maximum

medical improvement (MMI). He assigned claimant an impairment

rating of seventeen percent, which converted to a rating of ten

4

percent of the whole person, for her right shoulder. For her left

shoulder, or left upper extremity, he assigned thirteen percent

impairment, or eight percent of the whole person. These ratings

combined to give claimant a whole person impairment of seventeen

percent. Dr. Lakin gave no ratings for claimant’s upper or lower

back pain or her neck pain because he concluded that the pain in

those areas was unrelated to the work incident. Employer filed a

final admission of liability (FAL) based on Dr. Lakin’s MMI date and

impairment ratings.

¶ 8 Claimant objected to the FAL and to Dr. Lakin’s impairment

rating. She therefore requested a division-sponsored independent

medical examination (DIME). Concluding Dr. Lakin had incorrectly

excluded claimant’s spinal conditions from the assigned impairment

ratings, the DIME physician, Dr. Thomas Higginbotham, opined

that claimant injured her “left and right shoulders and cervical,

thoracic, and lumbar spine” when she assisted the falling patient in

September 2012. Dr. Higginbotham therefore assigned claimant a

thirty-one percent total impairment rating for her cervical, thoracic,

and lumbar spine.

5

¶ 9 In addition, Dr. Higginbotham assigned claimant impairment

ratings of fifteen percent for the left shoulder and sixteen percent

for the right shoulder. Those calculations included a ten percent

impairment rating to each shoulder for “subacromial arthroplasty,”

which is commonly referred to as joint replacement surgery. When

Dr. Higginbotham combined the impairment rating he calculated for

claimant’s spine with the impairment ratings for her left and right

shoulders, the resulting total calculation raised claimant’s

impairment rating to thirty-nine percent of the whole person.

¶ 10 Employer requested a hearing to overcome Dr. Higginbotham’s

opinions. It raised two arguments: (1) Dr. Higginbotham

incorrectly concluded claimant’s spinal complaints were related to

her work injury; and, (2) Dr. Higginbotham erred when he increased

the impairment rating for each shoulder by ten percent for

subacromial arthroplasty because claimant never underwent

arthroplasty surgery. In support of its contentions, employer

offered the testimony and opinions of two physicians it retained to

independently examine claimant: Drs. Brian Reiss and Allison Fall.

Dr. Reiss testified that claimant lacked the objective physical

findings to support Dr. Higginbotham’s opinion that she had

6

sustained a compensable injury to her back. He opined that it was

unlikely claimant injured her back in the September 2012 incident,

and that any back pain she suffered was likely pre-existing. Dr.

Fall concurred with Dr. Reiss’s opinion. In addition, Dr. Fall noted

that claimant underwent subacromial decompression, not

subacromial arthroplasty, and opined that Dr. Higginbotham erred

when he added a fixed ten percent rating for arthroplasty, a

procedure claimant never had.

¶ 11 The ALJ agreed with employer’s first argument, finding that

claimant’s back condition was not causally related to her September

2012 work injury. He therefore granted employer’s request to reject

Dr. Higginbotham’s opinion that claimant’s spinal complaints were

causally related to the September 2012 work injury.

¶ 12 However, the ALJ found that employer had not overcome the

higher rating Dr. Higginbotham assigned for claimant’s shoulder

injuries. Although the ALJ acknowledged Dr. Fall’s testimony

contrasting subacromial arthroplasty with subacromial

decompression and recognized that claimant had not undergone a

distal clavical resection (arthroplasty), the ALJ was “not convinced”

that Dr. Higginibotham had erred. Instead, the ALJ characterized

7

Dr. Higginbotham’s description of claimant’s procedure as

“incorrect nomenclature”; he explained that although Dr.

Higginbotham had misidentified the procedure claimant underwent,

she nonetheless had a procedure which “modified the working of

the acromium in combination with the glenohumeral joint” and

found that the distinctions described by Dr. Fall were merely “a

difference of opinion.” The ALJ therefore denied and dismissed

employer’s request to overcome the DIME’s shoulder impairment

ratings, elucidating “that the acromioplasties performed by

[claimant’s authorized surgeon] constitute a derangement of a body

part as provided for in the definition of impairment from the DWC

rating tips.”

¶ 13 On review, the Panel affirmed the ALJ’s finding that employer

overcame Dr. Higginbotham’s opinion concerning the relatedness of

claimant’s back condition, holding that substantial evidence

supported the ALJ’s decision on that issue. But, the Panel set aside

the ALJ’s order denying employer’s request to overcome Dr.

Higginbotham’s shoulder impairment rating. Analyzing the

Impairment Rating Tips put out by the division of workers’

compensation, the Panel concluded that the Tips do not support the

8

automatic addition of ten percent to a shoulder impairment rating

for the kind of surgery claimant had. Because Dr. Higginbotham

had improperly added ten percentage points to claimant’s shoulder

impairment rating under the mistaken belief that she underwent

arthroplasty, the Panel held that the ALJ erred in adopting Dr.

Higginbotham’s shoulder impairment rating. Claimant appeals

both of these Panel rulings.

II. Overcoming DIME’s Shoulder Impairment Rating

A. Standard of Review

¶ 14 We review an ALJ’s conclusions of law de novo. City of

Loveland Police Dept. and CIRSA v. ICAO, 141 P.3d 943, 950 (Colo.

App. 1996). We review an ALJ’s factual findings under the

substantial evidence test and uphold those findings when they are

supported by the record. Id.

B. Analysis

¶ 15 Claimant first contends that the Panel erred in setting aside

the ALJ’s acceptance of Dr. Higginbotham’s shoulder impairment

rating. She argues that the ALJ did not err in his interpretation of

the Impairment Rating Tips and the AMA Guides 3rd Edition. She

asserts that because substantial evidence supported the ALJ’s

9

finding that her shoulder surgeries were invasive, the Panel

exceeded its authority when it set aside the ALJ’s finding. We are

not persuaded.

¶ 16 First, as we read the record, it seems clear that Dr.

Higginbotham made a mistake when he reported and testified that

claimant underwent subacromial arthroplasty. Indeed, the ALJ

found that “Dr. Higginbotham used the incorrect nomenclature” to

identify claimant’s procedure. The ALJ held that this error was

inconsequential. He reasoned that, even though claimant did not

have arthroplasty, she nonetheless “had a procedure that modified

the workings of the acromium in combination with the

glenohumeral joint,” which constituted a “derangement” of her

shoulder within the meaning of the Impairment Rating Tips, and

which, in turn, justified the increased impairment rating for her

shoulders. Claimant asks us to embrace the ALJ’s view.

¶ 17 Although the Impairment Rating Tips upon which claimant

relies are not part of the record before us, they are available on the

website maintained by the division of workers’ compensation. The

Panel took judicial notice of the Tips and the AMA Guides, and

neither party challenges the Panel’s authority to do so. As neither

10

party objects to our review of the Impairment Rating Tips, we

likewise address them here.

¶ 18 The Tips provide explicit guidance for rating workers who have

undergone an invasive treatment as well as workers who have had

shoulder surgery. The relevant sections state in their entirety:

Impairment Rating for Workers Who Have Undergone an Invasive Treatment Procedure: The rating physician should keep in mind the AMA Guides, 3rd Edition (rev.) definition for impairment. “The loss of, loss of use of, or derangement of any body part, system, or function.” Given this definition, one may reasonably assume any patient who has undergone an invasive procedure which has permanently changed any body part has suffered a derangement under the definition of impairment according to the AMA Guides, 3rd Edition (rev.). Therefore it is incumbent on the rating physician to perform the necessary testing as appropriate in the Guides for the condition which was treated by the invasive procedure. This should not be interpreted to say that all persons with invasive procedures necessarily qualify for an impairment rating. The impairment rating on many individuals who have had invasive procedures may be zero percent. Thus in cases with surgical procedures, an individual qualifies under the initial definition of impairment due to the derangement of a body part or system. If the rating physician provides a zero percent rating, this must be justified using the appropriate portions of the AMA Guides, 3rd Edition (rev.). Examples in which the rating procedure is

11

necessary include arthroscopic debridement of the shoulder, anterior cruciate ligament surgery of the knee, facet rhizotomy procedures, and surgery to repair carpal bone instability. (Also see section on spine procedures, below.)

Colo. Dep’t of Labor & Emp’t, Div. of Workers’ Comp., Impairment

Rating Tips, General Principles (Updated Jan. 2011).

Shoulder Surgery: Resection arthroplasty referred to in the AMA Guides 3rd Edition (rev.) is to be used only for partial resection of the humeral head, a procedure rarely performed currently. Neither resection nor implant arthroplasty values should be used for a distal clavicular resection. If providing a rating for a distal clavicular resection, the upper extremity value is 10%. The AMA Guides 4th and 5th Editions continue to suggest that subacromial arthroplasty should be rated using ROM, and when appropriate, ‘joint crepitation with motion’ from the “Other Disorders” section. In general, when any additional rating for subacromial arthroplasty is deemed appropriate in a case with or without crepitus because “ . . . other factors have not adequately rated the extent of the impairment,” it should not exceed 10%. (AMA Guides 3rd Ed. Rev. p. 48).

Id. at Spinal and Extremity Rating.

¶ 19 Claimant maintains that, as the ALJ found, the subacromial

decompression procedure she underwent “permanently changed”

her body part (the acromium), and therefore she “suffered a

12

derangement” which merited an additional impairment rating. But,

as we read the entire Tip pertaining to workers who have undergone

invasive treatment procedures, it admonishes that an injured

worker who has undergone an invasive procedure is not necessarily

entitled to a higher impairment rating. Rather, the Tip strongly

cautions that while “one may reasonably assume” that a worker

who has endured an invasive procedure should be given a higher

impairment rating, “it is incumbent on the rating physician to

perform the necessary testing” before issuing any such rating. And,

while the Tips pertinent to shoulder surgery provide that

subacromial arthroplasty may merit an additional impairment

rating, “it should not exceed 10%.” Nowhere do the Tips mandate

the addition of ten percent to a rating merely because an injured

worker had subacromial arthroplasty. Further, it is undisputed

that claimant did not have an arthroplasty at all, and we see

nothing in the Tips suggesting that an automatic increase in an

impairment rating is warranted for a subacromial decompression,

even if it is viewed as a derangement.

¶ 20 The Panel similarly analyzed the Tips. “We defer to an

agency’s interpretation of its governing statute if the statute is

13

subject to different reasonable interpretations and the issue comes

within the administrative agency’s special expertise.” Keel v. Indus.

Claim Appeals Office, 2016 COA 8, ¶ 31. In general, “an

administrative agency’s interpretation of its own regulations is . . .

entitled to great weight and should not be disturbed on review

unless plainly erroneous or inconsistent with such regulations.”

Jiminez v. Indus. Claim Appeals Office, 51 P.3d 1090, 1093 (Colo.

App. 2002). The Panel’s interpretation will therefore be set aside

only “if it is inconsistent with the clear language of the statute or

with the legislative intent.” Support, Inc. v. Indus. Claim Appeals

Office, 968 P.2d 174, 175 (Colo. App. 1998); see also Zerba v. Dillon

Cos., 2012 COA 78, ¶ 37. Here, the Panel’s interpretation of its

Impairment Rating Tips is reasonable. In our view, the language of

the Tips supports the Panel’s interpretation that there is no

automatic increase in an impairment rating for a subacromial

decompression, and we perceive no reason to stray from this

interpretation.

¶ 21 Moreover, even if we were to assume that the Tips support an

increase in rating for subacromial decompression — the procedure

claimant underwent in both shoulders — as the Panel pointed out,

14

the record is devoid of any medical justification for increasing the

impairment rating for this procedure. Dr. Higginbotham had

already given claimant shoulder impairment ratings based on her

range of motion. He testified and reported that he increased the

impairment rating for each of claimant’s shoulders by ten percent

because she underwent subacromial arthroplasty. But, the parties

agree claimant did not have an arthroplasty. When considered with

Dr. Fall’s uncontradicted testimony that ten percent cannot be

justified for the procedure claimant actually underwent —

subacromial decompression — there remains no support in the

record to increase claimant’s impairment rating based on the

surgical procedure she underwent.

¶ 22 Accordingly, we agree with the Panel that the ALJ improperly

adopted Dr. Higginbotham’s increased left and right shoulder

impairment ratings. We therefore perceive no error in the Panel’s

decision setting aside that portion of the ALJ’s order.

III. Overcoming DIME’s Spinal Causality Opinion

¶ 23 Claimant also challenges the Panel’s affirmance of the ALJ’s

denial and dismissal of her request for coverage for her back

condition. As the DIME physician, Dr. Higginbotham’s opinion that

15

claimant’s back pain was causally related to her September 2012

work injury is entitled to presumptive weight. But, the ALJ found

employer overcame that presumption. Claimant argues that the

ALJ abused his discretion when he rejected Dr. Higginbotham’s

opinion that her back condition was causally related to the May

2012 work incident because Dr. Higginbotham’s “medical analysis”

was “extensive and well-founded.” We perceive no basis for setting

aside the ALJ’s or the Panel’s orders.

A. Standard for Overcoming DIME Opinion

¶ 24 A DIME physician’s opinions concerning MMI and impairment

of the whole person are binding unless overcome by clear and

convincing evidence. § 8-42-107(8)(b)(III), C.R.S. 2015; Meza v.

Indus. Claim Appeals Office, 2013 COA 71, ¶ 15. “Both

determinations inherently require the DIME physician to assess, as

a matter of diagnosis, whether the various components of the

claimant’s medical condition are causally related to the industrial

injury. Therefore, a DIME physician’s determinations concerning

causation are binding unless overcome by clear and convincing

evidence.” Leprino Foods Co. v. Indus. Claim Appeals Office, 134

16

P.3d 475, 482-83 (Colo. App. 2005); accord Martinez v. Indus. Claim

Appeals Office, 176 P.3d 826, 827 (Colo. App. 2007).

¶ 25 “Clear and convincing evidence means evidence which is

stronger than a mere ‘preponderance’; it is evidence that is highly

probable and free from serious or substantial doubt.” Metro Moving

& Storage Co. v. Gussert, 914 P.2d 411, 414 (Colo. App. 1995).

¶ 26 Whether a party has overcome the DIME physician’s opinion is

a question of fact to be resolved by the ALJ. Id. Consequently, we

may not set aside the ALJ’s determination that a party has or has

not overcome the DIME if that finding is supported by substantial

evidence in the record and is not refuted by clear and convincing

contrary evidence. See § 8-43-308, C.R.S. 2015; Benuishis v. Indus.

Claim Appeals Office, 195 P.3d 1142, 1144-45 (Colo. App. 2008).

“Substantial evidence is that quantum of probative evidence which

a rational fact-finder would accept as adequate to support a

conclusion, without regard to the existence of conflicting evidence.”

Metro Moving & Storage, 914 P.2d at 414.

B. Substantial Evidence Supports the ALJ’s Finding

¶ 27 Here, the ALJ found, with record support, that claimant’s back

condition was unrelated to her work injury. Relying on the opinions

17

of Drs. Fall and Reiss, the ALJ concluded it was “highly probable

that Dr. Higginbotham was incorrect when he assigned impairment

for cervical, thoracic and lumbar spinal conditions.” Both Dr. Fall

and Dr. Reiss testified and reported that claimant’s back condition

was more likely caused by a pre-existing condition and that the

mechanism of claimant’s injury was unlikely to have resulted in the

degree and extent of back pain complained of by claimant. In

addition, claimant’s ATP, Dr. Lakin, did not believe claimant’s back

pain was compensable. Dr. Lakin noted a high degree of similarity

between images of claimant’s back taken before and after the

September 2012 incident, opining that the similarities strongly

suggested claimant’s back condition pre-existed the 2012 work

injury. The ALJ found these opinions credible and more persuasive

than contrary opinions expressed by Dr. Higginbotham.

¶ 28 We are not at liberty to disregard this credibility

determination. Indeed, we may not reweigh the evidence. See

Metro Moving & Storage Co., 914 P.2d at 414. Specifically, “we may

not interfere with the ALJ’s credibility determinations” unless the

evidence is “overwhelmingly rebutted by hard, certain evidence” to

the contrary. Arenas v. Indus. Claim Appeals Office, 8 P.3d 558,

18

561 (Colo. App. 2000); see also Youngs v. Indus. Claim Appeals

Office, 2012 COA 85M, ¶ 46 (“Nor may we set aside a ruling

dependent on witness credibility where the testimony has not been

rebutted by other evidence.”). And, the weight to be given expert

medical testimony is within the ALJ’s sound discretion. See

Rockwell Int’l v. Turnbull, 802 P.2d 1182, 1183 (Colo. App. 1990).

Because no evidence in the record “overwhelmingly” rebuts the

opinions of Drs. Lakin, Reiss, and Fall that claimant’s back

condition was not causally related to her work injury, “we may not

interfere with” the ALJ’s determination that their opinions were

more credible and persuasive than Dr. Higginbotham’s and which

consequently established that Dr. Higginbotham’s opinions were

erroneous. See Arenas, 8 P.3d at 561.

¶ 29 More importantly, the opinions of Drs. Lakin, Reiss, and Fall

substantially and sufficiently support the ALJ’s conclusion that

employer overcame Dr. Higginbotham’s opinion concerning

causation with clear and convincing evidence. See

§ 8-42-107(8)(b)(III); Martinez, 176 P.3d at 827; Leprino Foods Co.,

134 P.3d at 482-83. Because substantial evidence supports the

ALJ’s findings, we are bound by them and may not set aside the

19

ALJ’s decision or the Panel’s order affirming it. See § 8-43-308;

Metro Moving & Storage Co., 914 P.2d at 415.

¶ 30 The order is affirmed.

JUDGE KAPELKE and JUDGE NIETO concur.

15CA2142 UPS v ICAO 11-10-2016 COLORADO COURT OF APPEALS Court of Appeals No. 15CA2142 Industrial Claim Appeals Office of the State of Colorado WC No. 4-954-975 United Parcel Service and Liberty Mutual Insurance, Petitioners, v. Industrial Claim Appeals Office of the State of Colorado and Jennifer Magers, Respondents.

ORDER AFFIRMED

Division II Opinion by JUDGE DAILEY

Furman and Harris, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 10, 2016

Lee & Kinder, LLC, Joseph W. Gren, Matthew Boatwright, Denver, Colorado, for Petitioners No Appearance for Respondent Industrial Claim Appeals Office Timothy Guill, Durango, Colorado, for Respondent Jennifer Magers

DATE FILED: November 10, 2016 CASE NUMBER: 2015CA2142

1

¶ 1 In this workers’ compensation action, United Parcel Service

(UPS) and its insurer, Liberty Mutual Insurance Company

(collectively employer), seek review of a final order of the Industrial

Claim Appeals Office (Panel). The Panel affirmed an administrative

law judge’s (ALJ) order awarding claimant, Jennifer Magers,

reasonable medical benefits and temporary total disability benefits,

and rejecting employer’s intervening cause and injurious practice

arguments. We affirm the Panel’s order.

I. Background