Opinion
W.C. No. 3-115-275
March 31, 1997
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ Martinez) dated October 31, 1996, which denied her claim for additional medical and temporary disability benefits. We affirm.
A brief procedural history is necessary to understand the issues on review. The claimant suffered an admitted low back injury on October 9, 1994, and was treated by Dr. Wyman. On May 3, 1995, Dr. Wyman determined the claimant to be at MMI with permanent physical impairment.
Because Dr. Wyman is not Level II accredited, the respondents requested a Division-sponsored Independent Medical Examination (IME) pursuant to the Rules of Procedure Part IV(N)(4)(d), Colo. Code Reg. 1101-3 at page 7 (1994) [amended, effective November 30, 1996 19 CR 11], for purposes of ascertaining the claimant's medical impairment. Dr. Winkler was selected to perform the IME. In a report dated August 14, 1995, Dr. Winkler rated the claimant's permanent medical impairment from the injury as 5 percent of the whole person, and agreed with Dr. Wyman's finding concerning the date of MMI.
On August 29, 1995, the respondents filed a Final Admission of Liability which terminated temporary disability benefits and admitted liability consistent with Dr. Winkler's rating. The claimant timely objected.
On August 30, 1995, the claimant requested a Division-sponsored IME on the issues of MMI, and permanent medical and psychological impairment. The respondents objected and argued that the claimant was not entitled to another IME. Over the respondents' objection former Prehearing Administrative Law Judge Janski (ALJ Janski) granted the claimant's request for a second IME.
Dr. Fitzgerald was selected to the perform the second IME. In a report dated, November 2, 1995, Dr. Fitzgerald rated the claimant's permanent medical impairment from the industrial injury as 15 percent of the whole person. He also agreed that the claimant was at MMI for the physical component of the injury. However, Dr. Fitzgerald recommended another IME to determine whether the claimant has a disabling psychological injury and whether that injury has caused permanent psychological impairment. He offered to combine his rating with any psychological impairment rating resulting from the additional IME.
The respondents applied for a hearing on the issue of permanent partial disability. Following a hearing on February 13, 1996, ALJ Martinez determined that it was premature to resolve the issue of permanent partial disability because the claimant had not been afforded the additional IME recommended by Dr. Fitzgerald. Therefore, ALJ Martinez ordered the additional IME.
Dr. Stein performed the additional IME and diagnosed the claimant as suffering from a major depressive disorder. Dr. Stein also opined that the claimant is not at MMI for her psychiatric problems. Thereafter, Dr. Fitzgerald adopted Dr. Stein's opinion and issued a report dated June 26, 1996, in which he stated that the claimant is not at MMI.
The respondents then reapplied for a hearing on the issue of permanent partial disability and medical benefits. The claimant endorsed the issues of medical benefits, temporary disability benefits commencing May 3, 1995, permanent partial disability and whether the ALJ was obligated to adopt Dr. Fitzgerald's IME report which states that she is not at MMI. A hearing was scheduled, however the parties agreed to vacate the hearing, and allow ALJ Martinez to enter an order based on the existing record.
In his order of October 31, 1996, ALJ Martinez determined that insofar as the claimant disputed Dr. Winkler's conclusions, she was required to challenge them under § 8-42-107(8)(c), C.R.S. (1995 Cum. Supp.) [amended in 1996], by filing an Application for Hearing. Therefore, ALJ Martinez determined that ALJ Janski erred in granting the claimant a second IME for purposes of allowing the claimant "to supplant" Dr. Winkler's IME. Furthermore, ALJ Martinez determined that Dr. Fitzgerald exceeded his authority as the IME physician in finding that the claimant was not at MMI for the psychiatric problems. Consequently, ALJ Martinez declined to resolve the claimant's contention that she is not at MMI and denied the claimant's request for further temporary disability benefits until she "successfully challenged" Dr. Winkler's IME.
On review the claimant contends, inter alia, that her claim for temporary disability benefits was properly before ALJ Martinez. She also argues that Dr. Fitzgerald's IME report, which indicates that she is not at MMI was not overcome by "clear and convincing" evidence. Therefore, the claimant argues that ALJ Martinez was compelled to award continuing temporary disability benefits. We disagree.
As provided by § 8-42-105(3)(a), C.R.S. (1996 Cum. Supp.), the claimant's right to temporary disability benefits terminates at MMI. Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995); Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995). Section 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.) [amended in 1996 for MMI determinations made on or after July 1, 1996], provides the exclusive method for determining MMI for purposes of terminating temporary disability benefits. Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996).
Section 8-42-107(8)(b) requires the treating physician to determine MMI, and provides that a party who disputes that determination must request an IME. In Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995), the court concluded that, in the absence of an IME, the ALJ has no jurisdiction to resolve a dispute concerning the accuracy of the treating physician's MMI determination. Furthermore, in Cunningham Construction v. Carroll (Colo.App. No. 96CA1008, December 12, 1996) (not selected for publication), the court upheld our conclusions in Carroll v. Cunningham Construction Co., W.C. No. 3-113-816, May 14, 1996, that a request for an IME on the issue of medical impairment does not constitute a request for an IME on the issue of MMI, that the failure to request an IME on the issue of MMI renders the treating physician's MMI determination dispositive.
We further believe that § 8-42-107(8) implicitly requires that any request for an IME on the issue of MMI must precede an IME on the issue of medical impairment. In support, we note that the claimant's permanent medical impairment cannot be ascertained until MMI which is defined as the point in time when all of the claimant's compensable injuries have "stabilized" and no further treatment "is reasonably expected to improve the condition." Section 8-40-201(11.5), C.R.S. (1996 Cum. Supp.); Nunnally v. Wal-Mart Stores, ___ P.2d ___ (Colo.App. No. 96CA0509, October 24, 1996) (no permanent disability benefits accrued where claimant committed suicide before treating physician found claimant to be at MMI). Consequently, an IME physician's determination of the claimant's permanent medical impairment presumes that the claimant is at MMI. See Donald B. Murphy Contractors, Inc., v. Industrial Claim Appeals Office, 916 P.2d 611 (Colo.App. 1995); Harling v. B.C.R. Industries, Inc., supra.
We are also persuaded by the language in § 8-42-107(8)(c), which states that: "When the injured employee's date of maximum medical improvement has been determined pursuant to paragraph (b) of this subsection (8)," the claimant's medical impairment shall be determined. Thus, the statute expressly contemplates that any dispute concerning MMI has been resolved under § 8-42-107(8)(b) before the medical impairment provisions of § 8-42-107(8)(c) become relevant. See Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995).
Conversely, if § 8-42-107(8) is construed as permitting a claimant to challenge the treating physician's determination of MMI by requesting an IME after the completion of a respondent-initiated IME on the issue of medical impairment, the medical impairment IME may be rendered meaningless, and the employer may have needlessly incurred the cost of the IME. Such a result is inconsistent with the legislative purpose of the Workers' Compensation Act, to provide "quick and efficient delivery" of benefits "at a reasonable cost to employers, without the necessity of any litigation." Section 8-40-102(1), C.R.S. (1996 Cum. Supp.). Similarly, this construction is inconsistent with the fact that the IME provisions are designed to decrease litigation concerning MMI and medical impairment. Colorado AFL-CIO v. Donlon, 914 P.2d at 401; Cunningham Construction v. Carroll, supra. Therefore, we reject this interpretation of the statute.
As applied here, the record reflects that the claimant did not request an IME on the issue of MMI until after Dr. Winkler completed his IME on the issue of medical impairment. In fact, the claimant did not request an IME on the issue of MMI until after the respondents' filed a Final Admission of Liability for the payment of permanent partial disability benefits in accordance with Dr. Winkler's medical impairment rating.
Under these circumstances, we conclude as a matter of law that the claimant failed to comply with § 8-42-107(8)(b). Specifically, the claimant failed to request an IME in accordance with Rule XIV(L)(3), Code Colo. Reg. 1101-3 at 55 (1995) [amended, effective November 30, 1996], to dispute Dr. Wyman's finding concerning MMI prior to Dr. Winkler's IME on the issue of medical impairment.
Consequently, Dr. Wyman's determination that the claimant reached MMI on May 3, 1995 was binding on the parties and the ALJ's. Therefore, ALJ Martinez did not err in refusing to consider the issue of MMI or the claimant's corresponding request for additional temporary total disability benefits. Story v. Industrial Claim Appeals Office, supra.
In view of this disposition, we necessarily agree with ALJ Martinez that ALJ Janski erred in granting the claimant's request for an IME on the issue of MMI. Moreover, we disagree with the claimant's argument that the propriety of ALJ Janski's order was not endorsed for hearing. To the contrary, the claimant's request for a hearing on the issue of MMI inherently required the ALJ to determine whether Dr. Wyman's MMI determination was binding.
We also note that the issue of permanent partial disability was endorsed by both parties, and that the ALJ made certain factual determinations which may be pertinent to that issue. However, the ALJ's October 31 order does not purport to award or deny permanent partial disability benefits. Consequently, the ALJ's order is not a "final" order on the issue of permanent partial disability. See Oxford Chemicals Inc., v. Richardson, 782 P.2d 843 (Colo.App. 1986) (orders may be partially reviewable). Therefore, insofar as the claimant is challenging the ALJ's findings of fact concerning Dr. Fitzgerald's IME on the issue of medical impairment, we currently lack jurisdiction to consider the claimant's arguments. Section 8-43-301(2), C.R.S. (1996 Cum. Supp.); Director of Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986).
IT IS THEREFORE ORDERED that the ALJ's order dated October 31, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. DeanNOTICE This Order is Final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed March 31, 1997 to the following parties:
Rondelle Delane Boan, P.O. Box 1166, Dolores, CO 81323
Senior Housing Options, Inc., 1660 Wynkoop St., #850, Denver, CO 80202-1145
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority — Interagency Mail
Robert C. Dawes, Esq., 572 E. 3rd Ave., Durango, CO 81301 (For Claimant)
BY: _______________________________