Opinion
W.C. No. 4-452-470.
June 14, 2006.
FINAL ORDER
The claimant and the insurer both seek review of an order dated February 3, 2006 of Administrative Law Judge Coughlin (ALJ). The claimant appeals that part of the ALJ's order which found she had reached maximum medical improvement (MMI) for all components of her work related injury, and that she had failed to prove her xerostomia was work-related. The insurer appeals that part of the ALJ's order which denied its request to terminate disability payments. We affirm.
The parties stipulated to the issues to be determined which were limited to the insurer's petition to terminate temporary total disability (TTD) benefits based on the finding of the Division-sponsored independent medical examination (DIME) physician that the claimant was at MMI. The issues of permanent partial disability, permanent total disability, and post-MMI medical care were reserved for future determination.
This case has a long and complicated medical history. We summarize that history to the extent necessary to resolve the appeal. The claimant sustained a compensable low back injury on February 8, 2000. Dr. Rook was an authorized treating physician. Dr. Rook prescribed pain medications and muscle relaxants, specifically, Oxycotin and Percocet. The dosages of pain medication increased over the years of treatment. Dr. Rook noted that the claimant was getting increasingly depressed due to chronic pain and poor sleep. Dr. Rook referred the claimant to Dr. Kurica, who on July 31, 2000 noted the claimant's chief complaints were neck, mid-back, low back, and right buttock pain. The claimant reported muscle pain, joint pain, back pain, spasms, constipation, neck pain, jaw pain, a tendency to bleed and bruise easily, nervousness, emotional mood swings, and weight gain.
Dr. Rook noted on February 2001 the claimant's increasing symptoms of severe low back pain, myofascial upper back, shoulder, and neck pain and referred her for a discography. On March 21, 2001 the claimant was evaluated by Dr. Lynn Parry. Dr. Parry was not enthusiastic about surgery and recommended physical therapy. On April 3, 2001 the claimant saw Dr. Allred, a clinical psychologist.
The claimant underwent surgery followed by severe post-operative pain. The claimant was referred to Dr. Ripp in August 2001 for evaluation of her post-operative leg pain and RSD-like symptoms. Dr. Rook's prescriptions in mid-August 2001 included immediate release morphine. The claimant tried to reduce her intake of Oxycotin.
The claimant was seen at the insurers' request by Dr. Goldman. Dr. Goldman recommended a treatment plan for the claimant and expressed opinions the ALJ found were thoughtful and persuasive. Dr. Rook felt the testing recommended by Dr. Goldman to sort out the claimant's precise diagnosis would be superfluous and expensive. The claimant continued with medications including oxycotin, morphine, vicodan, soma, valium and zyprexa.
A series of sympathetic nerve blocks were performed by Dr. Presley but were noted as providing only a limited benefit. The claimant was continued on high doses of opiate analgesics for pain. On February 10, 2003 Dr. Rook placed the claimant at physical MMI for her cumulative trauma disorder, neck pain, upper back pain, and low back conditions. However, Dr. Rook felt the claimant was not at psychological MMI because she was still actively involved in psychiatric/psychological care with Doctors Elwonger and Allred. In April 2003, the claimant went to Comfort Dental for a tooth extraction.
The insurer requested that the claimant undergo an independent medical examination with Dr. Entin on April 21, 2003. Dr. Entin found the claimant had reached psychological MMI at the same time she reached physical MMI. Dr. Rook saw the claimant on May 12, 2003 at which time he re-emphasized that the claimant was at physical MMI, but had not yet been placed at psychiatric MMI by Dr. Elwonger.
The claimant was first seen by Dr. Ellingson, D.D.S. on May 21, 2003. Dr. Ellingson diagnosed bruxism, and felt that condition explained her face pain, right and left temporal tendonitis, and headaches. Dr. Ellingson found the claimant had "rampant decay" which he attributed to a condition called xerostomia. Xerostomia is a lack of saliva, causing dry mouth.
Dr. Rook saw the claimant on June 17, 2003 and arrived at a total medical impairment rating of 42% whole person. Dr. Rook emphasized that he had only placed the claimant at physical MMI, and deferred psychiatric/psychological assessment to Dr. Elwonger.
The claimant was again seen by Dr. Goldman in October 2003 at the insurer's request. Dr. Goldman opined that the claimant had reached MMI. The insurer sought a (DIME) under the auspices of § 8-42-107(8)(b)(II), C.R.S. 2005, which was designed by the legislature to deal with situations where no authorized treating physician had placed the claimant at MMI in 18 months. The claimant submitted to a DIME on November 18, 2003 with Dr. Steinmetz. The claimant brought with her a physician of her choosing, Dr. Bloom. Dr. Steinmetz's medical assistant was also present during the DIME. After the DIME the medical assistant informed Dr. Steinmetz that during the times he would leave, Dr. Bloom would coach the claimant. Dr. Steinmetz placed the claimant at MMI as of April 21, 2003. Dr. Steinmetz delineated the following two distinct dates of injury (DOI). The first DOI was February 8, 2000, and was the traumatic low back lifting injury. The second DOI was November 30, 2000, and involved an occupational disease type repetitive motion injury to the upper extremities related to key boarding. Dr. Steinmetz determined that the claimant had total medical impairment rating of 39 percent. Dr. Steinmetz recommend an inpatient pain program to include both modifying and tapering most of the claimant's use of controlled substances.
The claimant returned to Dr. Rook on December 8, 2003, who opined that the claimant's dental problems developed as a result of her work injury and the medications used to treat it, thus the dental treatment should be considered compensable. However, because the claimant had already been placed at physical MMI, the dental care should be considered maintenance care. Dr. Rook continued to emphasize that the claimant was not at psychiatric MMI. Dr. Rook felt his analgesic medication regimen for the claimant was reasonable and necessary.
The claimant saw Dr. Elwonger on February 24, 2004 and his assessment was that her depression remained about the same, despite doses and combinations of anti-depressants and other classes of medication, combined with psychotherapy. Dr. Elwonger felt the claimant had finally reached MMI for the psychological portion of her claim. Dr. Elwonger rescinded his declaration of psychiatric MMI on April 9, 2004, noting the claimant's depression had worsened with the emergence of suicidal ideation.
The claimant at the insurer's request was examined by Dr. Renehan. Dr. Renehan is a physician, dentist and pharmacist. Dr. Renehan strongly opined that the claimant did no have work-related xerostomia secondary to the medication regimen provided to treat her work injury. In his view, her dental condition was most likely a product of long-term dental care neglect and exposure to significant tobacco products.
On October 27, 2004, Dr. Allred informed the claimant that he felt she was getting stuck in self-pity and blame. Claimant returned to Dr. Entin who reiterated his opinion that the claimant had remained at psychiatric MMI and that he disagreed with Dr. Elwonger's rescission of psychiatric MMI.
Based on these findings the ALJ determined that the claimant had failed to establish by a preponderance of credible and persuasive evidence that she has work-related xerostomia. However the ALJ found the claimant's bruxism is work related. The ALJ found that the opinion of the DIME physician on MMI has not been overcome. The claimant was found to be at MMI for all components of the claim. The ALJ further found that since the issue of permanent impairment, whether partial or total, had not been resolved a decision on termination of TTD was premature.
I
The claimant contends that the ALJ committed error in concluding that the claimant reached MMI for all components of her work related injury on April 21, 2003. The claimant argues that the treatment for bruxism, found by the ALJ to be work-related, is not maintenance care but rather represents a reasonable prospect for treatment that might cure or relieve the effects of the injury. The claimant argues that Dr. Ellingson expressed the opinion that the claimant was not at MMI for her bruxism.
The DIME physician's finding concerning the date of MMI is binding on the parties unless overcome by clear and convincing evidence. Sections 8-42-107(8)(b) (III). In the present case the DIME physician took note of the bruxism and still placed the claimant at MMI as of April 21, 2003.
In our opinion there is abundant evidence to support the ALJ's determination. Dr. Entin placed the claimant at MMI psychologically on April 21, 2003. Dr. Rook had placed the claimant at MMI on February 10, 2003. The claimant argues that there is a later letter from Dr. Rook indicating she was no longer at MMI because of her "dental condition". Exhibit 225. It is not clear whether Dr. Rook was referencing the bruxism or the xerostomia, which was found not to be work-related. However, it is clear that Dr. Rook on December 8, 2003, opined that because the claimant had already been placed at physical MMI, the dental care should be considered maintenance care.
In Dr. Renehan opinion the claimant's dental condition was most likely the product of long-term dental care neglect and exposure to significant tobacco product, rather than her work injury, chronic pain and the medications used to treat it. The ALJ credited this opinion on the basis of credibility, plausibility, and persuasion.
The ALJ found the claimant failed to overcome the findings of the DIME physician by clear and convincing evidence. We must uphold the ALJ's factual findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2005. We perceive no basis on which to interfere with the ALJ's finding.
II
The claimant next asserts that the xerostomia condition should have been found part of the work related injury. The claimant asserts that the opinions of Dr. Rook, Dr. Ellingson and Dr. Elwonger establish that the ALJ erred in finding the xerostomia is not work related. We disagree.
Where the claimant's entitlement to benefits is disputed, the claimant has the burden to prove a causal relationship between a work-related injury or disease and the condition for which benefits or compensation are sought. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). Whether the claimant sustained her burden of proof is a factual question for resolution by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). The ALJ's factual determinations must be upheld if supported by substantial evidence and plausible inferences drawn from the record. We have no authority to substitute our judgment for that of the ALJ concerning the credibility of witnesses and we may not reweigh the evidence on appeal. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993).
We have reviewed the record and the ALJ's findings of fact and conclusions of law. The ALJ's findings are amply supported by substantial evidence in the record. Dr. Renehan expressed the opinion that the claimant's dental condition is not related to xerostomia induced by her medications secondary to her injury, but is a product of long-term dental care neglect and exposure to significant tobacco product. Tr. (6/27/05) at 142-143, Respondent's Exhibit. I. Dr. Goldman also expressed the opinion that the claimant does not have xerostomia. Exhibit J at 9. The ALJ correctly applied the law and did not err in finding the xerostomia to not be work related.
III
The insurer contends the ALJ erred by ordering them to continue paying TTD after the claimant reached MMI. The insurer sought a (DIME) under § 8-42-107(8)(b)(II), since no authorized treating physician had placed the claimant at MMI in 18 months. The DIME physician placed the claimant at MMI.
The insurer acknowledged, on the record, that the claimant was going to at least have some permanent impairment. Tr. (1/31/02) at 21. Nevertheless the parties entered into a stipulation that provided that the issues of permanent partial disability, permanent total disability, and post-MMI medical care would be reserved for future determination. Tr. (1/31/02) at 31.
Section 8-42-105(3)(a), C.R.S. 2005, provides that TTD benefits "shall continue until" the employee reaches MMI. However, when the injured employee's date of MMI has been determined pursuant to § 8-42-107(8)(b), and where there is a determination that permanent medical impairment has resulted from the injury, the authorized treating physician shall determine the medical impairment rating. Section 8-42-107(8)(c).
Medical impairment benefits are then determined by the formula set forth in the statute and "shall be paid . . . beginning on the date of maximum medical improvement." Section 8-42-107(8)(d); see Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995) (reinstating Panel's finding that the date of MMI severs the claimant's right to temporary disability and invokes the claimant's right to receive permanent disability benefits).
The problem presented here, is that on the one hand, TTD benefits are to cease when the claimant reaches MMI. Sections 8-42-105(3)(a) and 8-42-106(2)(a), C.R.S. 2005. On the other hand, medical impairment benefits are to begin on the date of MMI. Section 8-42-107(8)(d). The ALJ found the claimant was at MMI but the stipulation entered into by the parties reserving the issues of permanent partial disability and permanent total disability for future determination would leave the claimant without payment of any benefits until there is a determination of permanent disability.
Although the right to temporary disability benefits terminates when a claimant attains MMI, the right to medical impairment benefits commences simultaneously. Monfort Transp. v. Industrial Claim Appeals Office, 942 P.2d 1358, 1360 (Colo.App. 1997). The claimant's right to a determination of PPD benefits ripened once she reached MMI. See § 8-42-107(8)(c). The insurer is to receive credit against permanent disability benefits for any temporary disability benefits paid beyond the date of MMI. This insures that there is no interruption of benefits due claimants. Monfort Transp. v. Industrial Claim Appeals Office, supra. It follows that in our opinion the ALJ committed no error in denying the insurer's request to terminate TTD payments as premature, until permanent disability is determined.
IT IS THEREFORE ORDERED that the ALJ's order dated February 3, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
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John D. Baird
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Thomas Schrant
Carolyn E. Osborne, Colorado Springs, CO, Jon Thomas, Esq., Jon C. Thomas, P.C., Colorado Springs, CO, Rhonda Norris, State Farm Fire and Casualty Company, Lakewood, CO, Shelley P. Dodge, Esq., Denver, CO, (For Claimant).
Joel M. Pollack, Esq. and T. Paul Krueger, II, Esq., Denver, CO, (For Respondent Insurer).