Opinion
W.C. No. 4-394-507
January 19, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) which determined the claimant was not at maximum medical improvement (MMI) on June 9, 1999, and awarded additional temporary disability benefits. We affirm.
The ALJ's pertinent findings of fact may be summarized as follows. The claimant suffered an admitted injury on October 20, 1997, which was treated by Dr. Bradley. Dr. Bradley referred the claimant to several other providers for evaluation and treatment. On August 24, 1998, Dr. Finn recommended stellate ganglion blocks (Bier blocks). Dr. Bradley referred the claimant to Dr. Finn for the Bier blocks, but the insurer refused to authorize the treatment.
On November 6, 1998, Dr. Hall agreed with the recommendation for Bier blocks but recommended the claimant first undergo a trial of interdigital nerve blocks. Dr. Bradley agreed with Dr. Hall's recommendation and eventually referred the claimant to Dr. Lippert who scheduled the Bier blocks for April 12, 1999. However, the treatment was canceled when the insurer refused to provide authorization. On April 20, 1999, and June 4, 1999, Dr. Bradley opined the claimant was not at MMI, but that MMI was anticipated after the claimant received the Bier blocks.
The claimant requested a change of physicians to Dr. Hall and a hearing was scheduled for June 9, 1999. At the hearing Dr. Bradley stated, "I believe we are ninety, to ninety-five percent, by a medical probability at maximum medical improvement," but Dr. Bradley testified the claimant still needed the prescribed Bier blocks. (Tr. June 9, 1999, p. 70). After the hearing the claimant received a series of Bier blocks.
Based upon these findings the ALJ determined Dr. Bradley issued conflicting opinions concerning whether the claimant was at MMI. Additionally, the ALJ determined that, as of June 9, 1999, the claimant was in need of further medical treatment "reasonably calculated to improve his condition." Under these circumstances, the ALJ resolved the conflict in Dr. Bradley's opinions by finding the claimant was not at MMI on June 9, 1999. Moreover, because the ALJ determined the claimant was not at MMI, he ordered the respondents to pay additional temporary disability and medical benefits.
On review, the respondents contend that, in the absence of a Division-sponsored independent medical examination (DIME) under the provisions of § 8-42-107(8)(b)(II), C.R.S. 2000, the ALJ lacked jurisdiction to adjudicate the issue of MMI. The claimant argues the respondents waived the jurisdictional argument raised on appeal. We disagree with the claimant. Nevertheless, we conclude the ALJ did not exceed his authority.
We assume, arguendo, that the respondents' argument implicates the ALJ's subject matter jurisdiction. See Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995) (ALJ lacks jurisdiction to hold hearing to resolve issue of MMI absent a DIME). Subject matter jurisdiction cannot be conferred by consent or waiver. Neoplan USA Corp. v. Industrial Commission, 778 P.2d 312 (Colo.App. 1989). Consequently, the respondents' challenge to the ALJ's subject matter jurisdiction to adjudicate the issue of MMI may be raised for the first on appeal. See Industrial Commission v. Plains Utility Co., 127 Colo. 506, 259 P.2d 282 (1953).
Section 8-42-107(8)(b)(II) provides that the initial determination of MMI shall be made by an authorized treating physician. 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 a DIME. Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996); Story v. Industrial Claim Appeals Office, supra. In Story, the court concluded that a request for a change of physicians to obtain further treatment for the purpose of reaching MMI, constitutes a "constructive challenge" to the treating physician's finding of MMI. Consequently, the Story court held the ALJ "had no jurisdiction" to consider the claimant's request for a change of provider in the absence of an DIME to contest the treating physician's finding of MMI. 910 P.2d at 82.
However, a DIME is not a prerequisite to the ALJ's determination of whether an authorized treating physician has issued an opinion on MMI and, if so, the nature of that opinion. Neither is a DIME required where there are multiple treating physicians with conflicting opinions. In these circumstances, the determination of whether the claimant has been placed at MMI is a question of fact which may be resolved by the ALJ without a DIME. See Blue Mesa Forest v. Lopez, supra.
On appeal the respondents deny Dr. Bradley issued conflicting opinions on the issue of MMI. The respondents contend that in a report dated June 9, 1999, Dr. Bradley placed the claimant at MMI, and Dr. Bradley never retracted that opinion.
Here, the record contains substantial evidence to support the ALJ's finding that Dr. Bradley issued conflicting opinions concerning whether the claimant was at MMI. (Tr. June 9, 1999, pp. 53, 55, 89, 91). Therefore, regardless of the respondents' admission, the record supports the conclusion the ALJ did not exceed his jurisdiction in hearing the issue of MMI.
Where, as here, the medical evidence is subject to conflicting inferences, it is the ALJ's sole prerogative to determine the inference to be drawn. Dr. Bradley admitted the Bier blocks were prescribed, at least in part, to reduce the claimant's sympathetic-generated pain. (Tr. June 9, 1999, p. 55). In view of the undisputed evidence the claimant had not received the prescribed Bier blocks prior to June 9, 1999, the ALJ reasonably inferred Dr. Bradley did not find the claimant to be at MMI as of June 9, 1999.
However, the respondents contend the ALJ erroneously relied on the opinions of Dr. Hall in finding Dr. Bradley did not place the claimant at MMI on June 9, 1999. The respondents argue Dr. Hall's opinions are irrelevant because Dr. Hall did not become an authorized treating physician until June 18, 1999 (Stuber order August 19, 1999). We disagree.
As argued by the respondents, we have issued a series of decisions holding that the DIME provisions are "time sensitive," and therefore, to establish the claimant had multiple treating physicians with conflicting opinions on the issue of MMI, the physicians must have been authorized to treat the claimant at the time of the initial MMI determination. Freeman v. United Parcel Service, W.C. No. 4-271-134 (July 26, 1999); Guyn-Smart v. Arapahoe Library District, W.C. No. 4-268-374 (October 29, 1998); Murphy v. Lower Valley Hospital Association, W.C. No. 3-101-327 (June 23, 1995); Duran v. Colorado Lien Co., W.C. No. 4-106-416 (June 22, 1995). However, here the claimant did not offer Dr. Hall's opinion for the purpose of proving a conflict between treating physicians. Consequently, this is not a case where the ALJ relied on the opinions of a subsequently authorized physician to find a conflict. Rather, the issue was whether Dr. Bradley found the claimant to be at MMI.
Furthermore, MMI is the point in time when the underlying condition causing disability has become stable and no further treatment will improve that condition. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Dr. Hall opined the claimant required additional medical treatment in the form of Bier blocks which were reasonably designed to improve his condition. Dr. Bradley agreed with this recommendation and referred the claimant for such treatments on several occasions. Under these circumstances, the ALJ could, and did, find that Dr. Hall's opinions were relevant to resolving the apparent conflicts in Dr. Bradley's statements concerning the issue of MMI.
IT IS THEREFORE ORDERED that ALJ's order dated March 3, 2000, is affirmed.
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed January 19, 2001 to the following parties:
James Darnley, Jr., 2250 Ivanhoe Dr., Colorado Springs, CO 80911
Regis Hairstylists, 750 Citadel Drive East, Colorado Springs, CO 80909
George Fairbanks, Employers Insurance of Wausau, 9457 S. University Blvd., #313, Highlands Ranch, CO 80126
Jon C. Thomas, Esq., 1032 N. Wahsatch Ave., Colorado Springs, CO 80903-2484 (For Claimant)
Harry A. King, Jr., Esq., 425 S. Cherry, #120, Denver, CO 80246 (For Respondents)
BY: A. Pendroy