Opinion
W.C. No. 3-111-859
February 15, 1996
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Martinez (ALJ) which awarded the claimant temporary disability benefits. We affirm.
The ALJ found that the claimant sustained a compensable injury on April 27, 1993. On May 6, 1994, the claimant's authorized treating physician, Dr. Shaver, issued a report stating that the claimant reached maximum medical improvement (MMI) on March 9, 1994. Apparently, the respondents terminated the claimant's temporary disability benefits based on Dr. Shaver's report.
Thereafter, the claimant filed an application for hearing seeking additional temporary disability benefits. However, in a summary order dated September 29, 1994, the ALJ denied the claim for temporary disability benefits "until and unless the claimant is successful in utilization of C.R.S. 8-42-107(8)(b)." The order reserved other issues for future determination.
Despite this course of events, Dr. Shaver continued to treat the claimant. On May 9, 1994, Dr. Shaver placed the claimant on light duty restrictions. Later, he referred the claimant to Dr. Winkler. Dr. Winkler examined the claimant on September 30, 1994 and requested additional neurological studies.
In a report dated February 15, 1995, Dr. Winkler opined that the claimant reached MMI on December 1, 1994. Thereafter, Dr. Shaver issued a report retracting his earlier opinion concerning MMI, and stating that he agreed with Dr. Winkler that the claimant reached MMI on December 1.
Based on this evidence, the ALJ concluded that it was Dr. Shaver's opinion that the claimant reached MMI on December 1, 1994. Specifically, the ALJ stated that Dr. Shaver "effectively retracted his earlier opinion" concerning MMI and "adopted the opinion of Dr. Winkler." Consequently, the ALJ awarded the claimant temporary total disability benefits from May 17, 1994 [when the claimant left work] through December 1, 1994, the date of MMI.
I.
On review, the respondents' first contention is that the ALJ's summary order "closed" the "issue" of further temporary disability benefits, and the claimant was required to file a petition to reopen before seeking additional benefits. In support of this argument, the respondents cite Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991) . We reject this argument.
Insofar as the respondents are asserting that the claim was "closed" by the summary order, Brown Root, Inc. v. Industrial Claim Appeals Office does not support their position. In Brown Root, the court held that an order awarding temporary disability benefits, and not addressing permanent partial disability benefits, is sufficient to constitute an "award" closing a claim. However, the court went on to hold that if an order awarding temporary disability benefits "expressly reserves jurisdiction" over other issues, the claim is not closed and remains open for purposes of awarding additional benefits. See also El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993) (if an order grants or denies temporary benefits but reserves jurisdiction over other issues, no award has been entered, and thus no petition to reopen is required).
Here, the summary order reserved jurisdiction over issues not expressly determined. In fact, the order itself recognized that the claimant might be entitled to additional temporary disability benefits in the event that he sought an independent medical examination (IME) to contest Dr. Shaver's initial determination of MMI. Therefore, neither the claim, nor the "issue" of temporary disability, was closed by the summary order.
Although it is not entirely clear, the respondents may also be asserting that the summary order constituted "law of the case" with respect to claimant's entitlement to temporary disability benefits after March 9. In fact, the respondents made this specific argument to the ALJ. (Tr. p. 3). However, we disagree with this argument.
Law of the case is a discretionary doctrine which directs that a prior legal ruling made in the same case generally should be followed. Mining Equipment, Inc. v. Leadville Corp., 856 P.2d 81 (Colo.App. 1993); Verzuh v. Rouse, 660 P.2d 1301 (Colo.App. 1982). However, the doctrine does not apply where the prior ruling was preliminary in nature and the parties were not afforded a full and fair opportunity to litigate the issue. Governor's Ranch Professional Center, Ltd. v. Mercy of Colorado, Inc., 793 P.2d 648 (Colo.App. 1990); Godinez v. Brush Greenhouse Partners, W.C. No. 4-210-446, January 23, 1996.
Here, the summary order was preliminary in nature. It did not purport to make a final ruling concerning the claimant's entitlement to temporary disability benefits after March 9. To the contrary, it merely held that consideration of the issue would have to await an IME as provided in § 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.).
Moreover, the issue before the ALJ at the September 19, 1995 hearing was different than that considered in the summary order. By September 19, 1995, the claimant was in possession of evidence that Dr. Shaver had changed his opinion concerning the claimant's date of MMI. Therefore, the prior ruling did not afford the parties a full and fair opportunity to litigate the issue as it ultimately evolved.
II.
The respondents' next contention is that the ALJ erred in awarding temporary total disability benefits because the claimant did not obtain an IME in accordance with § 8-42-107(8)(b). Relying on Postlewait v. Midwest Barracade, 905 P.2d 21 (Colo.App. 1995), the respondents contend that the ALJ erred in concluding that Dr. Shaver could "retract" his opinion concerning MMI, and thereby relieve the claimant of the obligation to apply for an IME. We reject this argument.
It is undoubtedly true that, under § 8-42-105(3)(a), C.R.S. (1995 Cum. Supp.) and § 8-42-107(8)(b), it is the authorized treating physician who determines, in the first instance, whether the claimant has reached MMI. Colorado AFL-CIO v. Donlon, ___ P.2d ___ (Colo.App. No. 93CA1118, 93CA1392, June 15, 1995); Aren Design, Inc. v. Becerra, 897 P.2d 902 (Colo.App. 1995). However, nothing in § 8-42-107(8)(b) rules out the possibility that, prior to instigation of the IME procedure, the treating physician may change his mind concerning the date of MMI, or issue conflicting or ambiguous opinions concerning whether or not the claimant has reached MMI. It is for this reason that we have held that, where the treating physician issues conflicting opinions concerning MMI, it is for the ALJ to resolve the conflict, and the ALJ may do so without requiring the claimant to obtain an IME. Eg. Hayman v. Ray Lyn Berhman, W.C. No. 4-202-037, August 10, 1995.
Postlewait v. Midwest Barracade is not authority to the contrary. In Postlewait, the authorized treating physician retracted his opinion concerning MMI after the IME physician issued his opinion concerning MMI. In fact, the Postlewait court stated that the "opinion of the primary care physician as to MMI is entitled to deference only when the IME procedure has not been used."
Here, the IME procedure was never utilized by either party. Consequently, the fact that Dr. Shaver changed his opinion concerning MMI does not constitute a challenge to the IME physician's opinion. Rather, Dr. Shaver's retraction of the initial opinion merely presents a question of fact concerning whether he believed the claimant to be at MMI on March 9, or December 1, 1994.
We are not persuaded by the respondents' argument that this result perpetuates litigation in conflict with the purposes of § 8-42-107(8)(b). In fact, it may often be the case that primary treating physicians issue reports which are subject to conflicting inferences involving the date of MMI. If we were to hold, as the respondents argue we should, that parties are bound by the treating physician's first utterance concerning MMI, we might unnecessarily perpetuate litigation by requiring the parties to obtain IMEs where the treating physician is clearly of the opinion that the claimant has not reached MMI, and that his first opinion was mistaken or erroneous. This could not have been the intent behind the IME procedure.
We have considered the respondents' other arguments to the contrary, and find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ's order, dated October 3, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. DeanNOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed February 15, 1996 to the following parties:
Romolo L. Lopez, 66906 Landfill Road, Montrose, CO 81401
Blue Mesa Forest Products, Inc., Attn: Karen A. Gist, P.O. Box 460, Montrose, CO 81402-0460
Colorado Compensation Insurance Authority, Attn: C. Boyd, Esq. (Interagency Mail)
Douglas A. Thomas, Esq. Douglas P. Ruegsegger, Esq., 1700 Broadway, Ste. 1700,
Denver, CO 80290-1701 (For the Respondents)
Thomas W. Blake, Esq., 744 Horizon Ct., Ste. 360, Grand Junction, CO 81506
(For the Respondents)
Robert E. Krute, Esq., P.O. Box 1389, Montrose, CO 81402 (For the Claimant)
By: _________________________