Opinion
W.C. No. 4-268-374
October 29, 1998
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which awarded medical and temporary disability benefits. The respondents contend the ALJ erred in finding that the claimant was not at maximum medical improvement (MMI). We agree, and therefore, set aside the award of benefits.
On August 24, 1995, the claimant sustained an occupational disease to her upper extremities. The injury was diagnosed as bilateral carpal tunnel syndrome (CTS) and treated by Dr. Plotkin. Following bilateral carpal tunnel releases the claimant developed a new pain up her arm. Dr. Plotkin referred the claimant to Dr. Kawaski for further treatment, however, the claimant's new symptoms did not subside.
The respondents paid temporary total disability benefits until September 5, 1996, when Dr. Plotkin determined the claimant to be at maximum medical improvement (MMI). The claimant's personal physician subsequently diagnosed the claimant with probable Reflex Sympathetic Dystrophy (RSD) and recommended additional treatment.
On January 14, 1998, the claimant applied for a hearing on the issues of MMI, compensability of the RSD, medical benefits, change of physician and temporary total disability benefits. The respondents filed a Motion to Strike the application for hearing on the issues of MMI and temporary disability because neither party requested an independent medical examination (IME) under the provisions of § 8-42-107(8)(b)(II), C.R.S. 1998. The ALJ denied the Motion and the matter proceeded to hearing on April 22, 1998.
Based upon the evidence presented as the hearing, the ALJ found the claimant developed RSD as a result of her employment. Therefore, the ALJ ordered the respondents to pay for medical treatment to cure or relieve the effects of the RSD and granted the claimant's request for a change of physician. The ALJ also determined that as of September 5, 1996, the claimant was not at MMI for the RSD. Consequently, the ALJ ordered the respondents' to reinstate temporary total disability benefits commencing September 5, 1996.
On review, the respondents contend that the claimant's request for additional temporary disability and medical benefits reflects a dispute with Dr. Plotkin's determination of MMI. Therefore, the respondents argue that in the absence of an IME on the issue of MMI the ALJ exceeded his authority in determining the claimant is not at MMI.
Initially, the claimant replies that the respondents' argument was not raised before the ALJ, and therefore, contends that the issue is not properly before us on appeal. The claimant also asserts that the ALJ did not decide the issue of MMI, but rather the independent issue of "causation" of the RSD. We agree with the respondents and reject the claimant's arguments.
The respondents Motion to Strike expressly argued that a hearing on the issues of MMI and temporary disability was premature in the absence of an IME on the issue of MMI. In any case, subject matter jurisdiction cannot be conferred by consent or waiver, and a jurisdictional challenge may be raised for the first time on appeal. Neoplan USA Corp. v. Industrial Commission, 778 P.2d 312 (Colo.App. 1989); Hasbrouck v. Industrial Commission, 685 P.2d 780 (Colo.App. 1984). Because we hold that the failure to obtain an IME constituted a jurisdictional bar to the ALJ's authority to address MMI, we conclude that the issue is properly before us.
With one exception that is not applicable here, § 8-42-107(8)(b), C.R.S. 1998, provides that the initial determination of MMI shall be made by an authorized treating physician. Section 8-42-107(8)(b) also provides that if either party disputes the accuracy of the authorized treating physician's determination of MMI, a hearing on the issue shall not take place until the claimant has undergone an IME. Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996); Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995). In Story, the court concluded that a claimant's request for a change of physicians to obtain further treatment for the purpose of reaching MMI, was a "constructive challenge" to the treating physician's prior finding of MMI. Under those circumstances, the court held that the ALJ "had no jurisdiction" to consider the request because no party had requested an IME to contest the treating physician's finding of MMI. 910 P.2d at 82.
Relying on Story, we have held that, once the claimant has been placed at MMI by the treating physician, the claimant may not circumvent the IME procedure by presenting medical evidence that she needs additional treatment and requesting the ALJ to authorize a change in the treating physician under § 8-43-404(5)(a), C.R.S. 1998. Duran v. Colorado Lien Co., W.C. No. 4-106-416 (June 22, 1995). We reasoned that if the claimant presents evidence of a need for additional treatment to improve her condition from the industrial injury, she is, of necessity, attacking the underlying determination of MMI. This is true because under § 8-40-201(11.5), C.R.S. 1998, MMI occurs 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." (Emphasis added). Therefore, a physician's finding of MMI necessarily reflects the physician's determination that all conditions caused by the industrial injury are stable and no further treatment is reasonably expected to improve the compensable components of the injury. See Pinkard v. Jefferson County School District R-1, W.C. No. 4-174-632 (March 18, 1998); Chestnut v. University of Colorado-Boulder, W.C. No. 4-255-498 (December 13, 1996); Fields v. TAD Temporaries, W.C. No. 4-185-877 (September 7, 1995). We adhere to our prior conclusion.
Furthermore, our conclusion is supported by Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998), where the insurer disputed an IME physician's medical impairment rating which included a rating for decreased cervical range of motion. The insurer argued that the IME physician's opinion could not be adopted unless the claimant first established that he suffered a compensable cervical injury. The court concluded that a physician's opinion concerning the cause of the claimant's permanent impairment was an inherent part of the medical impairment rating.
Here, the ALJ found, and it is undisputed, that Dr. Plotkin is an authorized treating physician who determined the claimant to be at MMI on September 5, 1996. Because neither party has requested an IME on the issue of MMI, the ALJ lacked jurisdiction to determine the accuracy of Dr. Plotkin's opinion. Consequently, the ALJ erred in adjudicating the issue of whether the claimant was at MMI.
Furthermore, because the determination of MMI inherently includes a determination of the cause of the claimant's condition, the claimant's assertion that she has compensable RSD constitutes a challenge to Dr. Plotkin's MMI determination. Consequently, in the absence of an IME, the ALJ erroneously adjudicated whether the claimant is entitled to benefits for RSD. See Story v. Industrial Claim Appeals Office, supra;. Therefore, we set aside the ALJ's award of medical benefits, including the order for a change of physician.
Moreover, the applicable law provides that temporary disability benefits terminate at MMI. Section 8-42-105(3)(a), C.R.S. 1998; City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997). Therefore, we must also set aside the award of temporary disability benefits. See Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995).
In view of our disposition we need not address the respondents further arguments.
IT IS THEREFORE ORDERED that the ALJ's order dated May 5, 1998, is set aside.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
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. 1998.
Copies of this decision were mailed October 29, 1998 to the following parties:
Holly Guyn-Smart, 320 E. Beltline Blvd., #A2, Anderson, SC 29621
Arapahoe District Library, 2305 E. Arapahoe Rd., #118, Littleton, CO 80122-1535
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority — Interagency Mail
Gail C. Harriss, Esq., 572 E. Third Ave., Durango, CO 81301 (For Claimant)
Ruth C. Malman, Esq., 3773 Cherry Creek North Dr., #575, Denver, CO 80209 (For Claimant)
Kendra M. Oyen, Esq., 415 Brach Drive, Grand Junction, CO 81503
BY: _______________________