Opinion
W.C. No. 4-791-494.
October 22, 2010.
FINAL ORDER
The claimant seeks review of a Supplemental Order of Administrative Law Judge Walsh (ALJ) dated July 1, 2010, that found the claim compensable, granted a request for certain temporary disability benefits but denied others. We set aside and vacate that portion of the order that may be read as determining that the claimant is at MMI and suffered no physical impairment as a result of the industrial injury. As modified, the order is affirmed.
The ALJ determined the claimant suffered a mild industrial injury to his knee as a result of a work incident that occurred on April 21, 2009. The authorized treating physician released the claimant without medical restrictions on June 3, 2009 to his regular employment. The ALJ awarded temporary total disability benefits (TTD) benefits from April 21, 2009 through June 2, 2009.
The ALJ entered his initial order on February 19, 2010 and the respondents appealed. The ALJ entered a supplemental order on July 1, 2010 which modified the initial order by striking one paragraph from the initial order. In that paragraph the ALJ noted that the decision did not close the claim and ordered the insurer to file a general admission of liability and directed the insurer to handle the claim as it was required to do under a general admission which controlled the obligations of the respondent.
The claimant then appealed the ALJ's supplemental order contending that the ALJ erred in two ways. The claimant first contends the ALJ erred in determining that the claimant was at MMI when no authorized treating physician (ATP) had placed the claimant at MMI.
We first note that in his order the ALJ specifically stated that the decision did not address the issue of MMI for the work-related injury, recognizing that no ATP had placed the claimant at MMI. However, the claimant contends that the ALJ determined in essence that the claimant reached MMI on June 2, 2009, when there was no opinion from a physician to that effect. The claimant concedes that the release to regular employment issued by the ATP gave the ALJ authority to terminate TTD benefits, but contends that an opinion on the claimant's ability to return to regular employment is not synonymous with an opinion on MMI.
The ALJ made the following relevant findings of fact. Dr. Larson is an authorized treating physician. Dr. Larson persuasively opined that the claimant did not need any additional medical care or restrictions for the work injury to his left knee after approximately June 2, 2009. Dr. Larson also persuasively testified that the claimant's work related knee condition had resolved by approximately June 2, 2009. Even though the claimant did initially suffer a work injury on April 21, 2009, he failed to prove that his ongoing medical condition after June 2, 2009 is work-related. The claimant failed to prove that his medical care after June 2, 2009 is work related or reasonable and necessary to address the work injury. As a result, the respondents have no obligation to pay for medical care after that date. However, the claimant is entitled to the payment of medical treatment provided by authorized providers between April 21, 2009 and June 2, 2009. The ALJ found that the claimant failed to prove that his ongoing medical condition after June 2, 2009 was work related. As a result the ALJ, citing Snyder v. Industrial Claim Appeals Office 942 P.2d 1337 (Colo. App. 1997) determined that the respondents had no obligation to pay the claimant any additional medical benefits after June 2, 2009.
To the extent that the ALJ's order may be read as determining that at the time of the hearing which was held on October 21, 2009 the claimant had failed to demonstrate entitlement to any contested medical benefits, we perceive no error. Where the claimant's entitlement to medical benefits is disputed, the claimant has the burden to prove a causal relationship between a work-related injury or disease and the condition for which benefits or compensation are sought. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo. App. 1997). Whether the claimant sustained his burden of proof is a factual question for resolution by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997).
However, we agree with the claimant that the order may be read as in essence determining that the claimant is at MMI. The ALJ found that the claimant failed to prove that his medical care after June 2, 2009 is work related or reasonable and necessary to address the work injury and as a result the respondents had no obligation to pay for medical care after that date. MMI is defined as that point in time when any medically determinable physical or mental impairment as a result of injury has become stable and when no further treatment is reasonably expected to improve the condition. Section 8-40-201(11.5) C.R.S. Here the ALJ's order may be read as determining that no further medical treatment for the industrial injury is reasonably necessary. In our opinion, insofar as the ALJ's language may be read as ruling that no medical treatment in the future may ever be reasonably necessary to treat the injury, this is essentially a determination of MMI. The ALJ certainly had the authority to rule that at the time the order was entered there was no medical treatment that was reasonably necessary. However, he did not have the authority that there would never be any such treatment in the future. As noted, that is a determination of MMI which the ALJ did not have the authority to make.
The claimant also contends that the ALJ erred by determining the physical impairment rating of the claimant when the claimant was not at MMI and the ATP had not yet opined on the subject. The claimant argues that the determination of physical impairment is the province of the ATP. The claimant argues that the ALJ, in determining that the claimant had returned to his pre-injury state of health, had in essence determined that the claimant suffered no physical impairment. The claimant contends that the ALJ's termination of medical treatment bars him from returning to the ATP for an opinion on physical impairment.
The claimant contends that in the present case he cannot challenge the ALJ's determinations made on MMI and medical impairment made by the ALJ by use of the Division-sponsored independent medical examination (DIME) process. The claimant notes that the statutory scheme contemplates that the ATP will issue opinions on MMI and impairment which can then be challenged through the DIME process.
Here the ALJ found that the claimant failed to prove that his ongoing medical condition after June 2, 2009 was work-related. In so doing the ALJ relied upon medical opinions including those of Dr. Larson and Dr. Walton that the claimant's left knee condition was normal. Dr. Larson stated that absent any abnormalities objectively on physical examination and absent any abnormalities on MRI scan, he could not justify keeping the claimant out of work any longer or placing him on specific limitations. Dr. Larson further stated that the claimant's subjective symptoms did not suggest specific anatomic injury.
The ALJ determined that the claimant failed to prove that his ongoing medical condition after June 2, 2009 is work-related. We realize that in the next sentence the ALJ determined that as a result the respondents had no obligation to pay any temporary disability benefits and made no mention of permanent disability benefits. Findings of Fact § 13 at 8. Nevertheless we agree with the claimant that this may be read as determining that there was no permanent impairment resulting from the injury.
The authorized treating physician determines the date on which the employee reaches MMI and the degree of any lasting impairment due to the injury. Section 8-42-107(8)(b)(I), (c), C.R.S.; Montoya v. Industrial Claim Appeals Office 203 P.3d 620 (Colo. App. 2008). Therefore, because we agree with the claimant that sections of the ALJ's order may be read as in essence determining that the claimant is at MMI and suffered no physical impairment as a result of the industrial injury we must modify the order. Consequently, we modify the order by vacating the portion of the ALJ's order concluding that the claimant is at MMI and suffered no physical impairment as a result of the industrial injury. Since no other issue on appeal has been raised, we affirm the order as modified.
IT IS THEREFORE ORDERED that the portion of the ALJ's order dated July 1, 2010 that determined the claimant is at MMI and suffered no physical impairment is set aside and vacated and, as modified, the ALJ's order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
ACE HARDWARE CORPORATION, Attn: PAUL ZIAMBA, COLORADO SPRINGS, CO, (Employer).
FIDELITY GUARANTY INS, Attn: COLLEEN SULLIVAN/EMILY JONES, C/O: GALLAGHER BASSETT, ENGLEWOOD, CO, (Insurer).
LAW OFFICE OF WILLIAM ALEXANDER JR., PC, Attn: WILLIAM A. ALEXANDER, JR., ESQ., COLORADO SPRINGS, CO, (For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: BRAD J. MILLER, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).