Opinion
W.C. No. 4-255-498
December 13, 1996
ORDER
The respondents seek review of an order of Administrative Law Judge Rumler (ALJ). The respondents contend that the ALJ exceeded her authority in finding that the claimant is not at maximum medical improvement (MMI) and awarding additional temporary disability and medical benefits. We agree, and therefore, set aside the order.
The record reveals that the claimant suffered an injury in May 1995, which was initially diagnosed as tendinitis of the right thumb. The respondents admitted liability for the injury and paid temporary disability benefits. During the course of treatment by Dr. Frank, the claimant was referred to Dr. Conyers for a diagnostic arthroscopy. Based upon the arthroscopy, Dr. Conyers diagnosed the claimant as suffering from ligament damage to the right wrist and recommended that the damage be surgically repaired. However, Dr. Frank opined that the ligament damage was not related to the May 1995 industrial injury, and therefore, Dr. Frank referred the claimant to her personal physician for treatment of the ligament problems.
On November 13, 1995, Dr. Frank determined the claimant to be at MMI with no permanent impairment from the industrial injury, and discharged her from treatment. Based upon Dr. Frank's determination of MMI, the respondents filed a Final Admission of Liability which terminated temporary disability benefits effective November 13, 1995, and denied liability for permanent partial disability benefits. The respondent-insurer also notified the claimant by correspondence that it was not accepting liability for the ligament problems.
Prompted by continuing bilateral wrist pain, the claimant sought further treatment from her personal physician, Dr. Salter. The claimant also underwent surgery by Dr. Goldstein on January 23, 1996, to repair the right wrist.
In February 1996, the claimant filed an Application for Hearing on the issues of temporary total disability after November 13, 1995, average weekly wage, medical benefits and "compensability." In their Response to the Application for Hearing, the respondents contested the claimant's Application on grounds that liability was previously admitted and that the issue of temporary disability benefits after November 13 was not "ripe" because the claimant had not requested an independent medical examination (IME) as required by § 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.) [amended 1996 Colo. Sess. Laws. ch. 112 at 456, effective for MMI determinations made on or after July 1, 1996].
Insofar as pertinent, the applicable version of § 8-42-107(8)(b) provided that the authorized treating physician who has provided the primary care shall make the initial determination of MMI and if either party disputes the MMI determination of the primary treating physician, the claimant must undergo an IME. The statute also precludes a hearing on the issue of MMI until the IME has been completed.
However, the ALJ found that an IME was not required prior to a hearing on the claimant's request for additional benefits because the "real issue was compensability for the massive ruptures and tear to the Claimant's right wrist." Furthermore, the ALJ credited the opinions of Dr. Goldstein and Dr. Conyers that the May 1995 industrial injury caused or aggravated the claimant's right wrist ligament problems and left wrist overuse syndrome. Therefore, the ALJ determined that the May 1995 industrial injuries include injuries to the claimant's left and right wrists.
Because the respondents terminated benefits based upon Dr. Frank's opinion that the wrist problems were not caused by the May 1995 injury, the ALJ determined that the respondents did not admit liability for all of the claimant's compensable injuries. The ALJ also determined that the respondents' failure to provide treatment for the claimant's wrist problems allowed the claimant the right to select a treating physician. Consequently, the ALJ determined that Dr. Salter, Dr. Goldstein, and their referrals were authorized to treat the claimant's injuries, and ordered the respondents to pay for their treatment.
Lastly, the ALJ determined that the claimant was not at MMI for all of the compensable injuries. Tr. p. 99; CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev'd on other grounds at 783 P.2d 269 (1989) (the ALJ's oral findings may be considered to interpret the ALJ's written findings). Therefore, the ALJ ordered the respondents to reinstate temporary disability benefits effective November 13, 1995.
In Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995), the Court of Appeals held that where the claimant disputes the validity of the primary treating physician's determination of MMI, the ALJ lacks jurisdiction to resolve the issue without an IME under § 8-42-107(8)(b). In Story the insurer filed a Final Admission of Liability in accordance with the primary treating physician's opinion that the claimant reached MMI. The claimant objected to the Final Admission but did not request an IME. Rather, the claimant requested additional medical benefits for purposes of achieving MMI and a change of provider. The Court concluded that the claimant's request for additional medical benefits for purposes of achieving MMI was a constructive challenge to the primary treating physician's opinion of MMI. Because no IME had been requested, the Story court held that the ALJ exceeded her jurisdiction in granting additional medical benefits for the purpose of attaining MMI.
Here, the claimant's request for additional benefits was based upon her dispute with Dr. Frank's determination that she reached MMI. At the commencement of the hearing, claimant's counsel stated that contrary to Dr. Frank's determination, the claimant's compensable injuries include injuries to the right and left wrists. Because Dr. Frank failed to treat these conditions, claimant's counsel requested a finding that the claimant is not at MMI, and an award continuing temporary disability benefits. (Tr. p. 10).
Under these circumstances, we perceive no appreciable difference between the relevant circumstances in this claim and the facts in Story. Consequently, Story compels a conclusion that the claimant's request for additional temporary disability and medical benefits constituted a constructive challenge to Dr. Frank's determination of MMI. Therefore, the ALJ exceeded her jurisdiction in conducting a hearing on the claimant's request for temporary disability and medical benefits after Dr. Frank's determination of MMI in the absence of an IME. Consequently, we must set aside the ALJ's award of benefits.
Furthermore, we disagree with the ALJ's ruling that an IME was not necessary because the "real issue" for adjudication was "compensability." Section 8-40-201(11.5), C.R.S. (1996 Cum. Supp.) defines MMI as:
"[A] 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."
In Fields v. TAD Temporaries, W.C. No. 4-185-877, September 7, 1995, we considered the effect of an IME physician's opinion concerning the cause of the claimant's disability and need for medical treatment. We concluded that the IME physician's opinion concerning the "cause" of the claimant's disability is inherent in the IME physician's determination of MMI. The following language from Fields is instructive.
"Thus, § 8-40-201(11.5) expressly requires a physician to determine whether a physical impairment is the "result" of the industrial injury, and whether any treatment will "improve the condition." In so doing, a physician is necessarily required to make judgments concerning the cause or causes of a claimant's need for treatment. Further, before the enactment of § 8-40-201(11.5), the courts recognized that findings of MMI inherently involved questions of causation. Reynolds v. Industrial Claim Appeals Office, 794 P.2d 1080 (Colo.App. 1990) (MMI exists when the "underlying condition causing the disability" becomes stable and additional treatment will not improve the condition). Consequently, we hold that § 8-42-107(8)(b) reflects a legislative intent requiring ALJs to defer to an IME physician's opinion concerning the cause of a need for additional treatment unless the opinion is overcome by clear and convincing evidence at a hearing."
It follows that the primary treating physician's determination of MMI requires the same judgments. Accordingly, the primary treating physician's determination of MMI inherently reflects the physician's opinion that all of the compensable components of the industrial injury have become stable and are not expected to improve with additional treatment. Therefore, where the claimant disputes the primary treating physician's finding of MMI, the claimant is contesting the physician's determination that any further treatment required to improve the claimant's condition is not necessitated by the industrial injury.
As stated in Fields this is construction is consistent with the fact that § 8-42-107(8)(b) is part of a statutory scheme designed to reduce litigation by affording special weight to the opinion of the treating physician that the claimant has reached MMI from the components of the industrial injury. Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995) . It is also consistent with the fact that physicians are required to rate medical impairment in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides), which provide a method for the apportionment of medical impairment to a prior occupational or non-occupational disability. Askew v. Industrial Claim Appeals Office, ___ P.2d ___ (Sup.Ct. 95SC489, December 3, 1996).
IT IS THEREFORE ORDERED that the ALJ's order dated July 3, 1996, is set aside.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill WhitacreNOTICE
An action to vacate or modify this order may be 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 December 13, 1996 to the following parties:
Mary Chestnut, P.O. Box 1057, Nederland, CO 80466
University of Colorado, Office of University Risk Management, 4840 Pearl E. Cir., Ste. 103, Campus Box 25, Boulder, CO 80301
University of Colorado Insurance Pool, 4840 Pearl E. Circle, Ste. 103, Campus Box 25, Boulder, CO 80309-0025
Michael P. Dominick, Esq., 250 Arapahoe Ave., Ste. 301, Boulder, CO 80302 (For the Claimant)
Michael W. Sutherland, Esq., 1700 Broadway, Ste. 1910, Denver, CO 80290 (For the Respondents)
BY: _______________________