Opinion
W.C. No. 4-150-716
March 21, 1997
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Wheelock (ALJ) which determined that the claimant is not at maximum medical improvement (MMI) and awarded further temporary disability benefits. We affirm.
It is undisputed that the claimant suffered a compensable leg injury on September 14, 1992, which was treated by Dr. Grant. On November 21, 1994, Dr. Grant placed the claimant at MMI, but did not rate the claimant's permanent medical impairment.
The respondents subsequently requested a Division-sponsored independent medical examination (IME) on the issue of medical impairment. The IME was performed by Dr. Fitzgerald who opined that the claimant sustained permanent medical impairment of fifteen percent of the lower extremity which equals five percent of the whole person. Dr. Fitzgerald also indicated that he agreed with Dr. Grant's determination of MMI. The respondents terminated temporary disability benefits and admitted liability for permanent partial disability benefits in accordance with Dr. Fitzgerald's extremity rating commencing November 22, 1994.
Thereafter, the claimant was examined by Dr. Rook, Dr. Ripp and Dr. Moffett who found a psychological component to the claimant's injury, and opined that the claimant is not at MMI. Based upon these opinions Dr. Fitzgerald then retracted his determination of MMI.
The matter came before the ALJ pursuant to the claimant's Application for Hearing on the issues of MMI, temporary disability, and medical benefits. Crediting the opinions of Dr. Rook, Dr. Moffett, Dr. Ripp and Dr. Fitzgerald, the ALJ found that the claimant suffered a compensable, disabling psychological injury as a result of the industrial injury. The ALJ also found that, the claimant proved by clear and convincing evidence that he is not at MMI for the psychological injury. Therefore, the ALJ ordered the respondents to reinstate temporary total disability benefits retroactive to November 1994.
On review the respondents contend that the issue of MMI was not properly before the ALJ because neither party requested an IME to "dispute" Dr. Grant's finding that the claimant reached MMI on November 21, 1994. Consequently, the respondents argue that the ALJ erred in considering the issue of MMI. Under the facts of this claim, we disagree.
Section 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.) [amended in 1996], requires an IME prior to any hearing disputing the validity of the authorized treating physician's finding of MMI. In Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995), the court concluded that, in the absence of an IME, the ALJ has no jurisdiction to resolve a dispute concerning the accuracy of the treating physician's MMI determination.
In Carroll v. Cunningham Construction Co., W.C. No. 3-113-816, May 14, 1996, aff'd. Cunningham Construction v. Carroll (Colo.App. No. 96CA1008, December 12, 1996) (not selected for publication), we concluded that a request for an IME on the issue of medical impairment under § 8-42-107(8)(c) does not constitute a request for an IME on the issue of MMI under § 8-42-107(8)(b). See also, Sierra v. Colorado Seal Stripe, Inc., W.C. No. 4-125-387, February 20, 1997. In upholding our order in Carroll, the court stated that "a contrary conclusion would frustrate the purpose of the statutory scheme which is to minimize litigation concerning the determination of MMI and medical impairment."
However, we have also concluded that the ALJ may consider the issue of MMI where the record contains an IME which addresses the issue of MMI, and the parties consent to the ALJ's consideration of the issue. This is true even if no party initially requested that the IME physician render an opinion on the issue of MMI. See Brown v. Colorado Animal Research Enterprises, Inc., W.C. No. 4-179-337, October 30, 1996. We reasoned that such circumstances are distinguishable from Story v. Industrial Claim Appeals Office, supra, where the ALJ had no IME which addressed the issue of MMI, and therefore, lacked jurisdiction under the statute.
Here it is undisputed that the respondents' IME request was limited to the issue of medical impairment and that there was no separate IME request on the issue of MMI. However, the respondents asserted inconsistent positions concerning whether these circumstances precluded the ALJ from considering the issue of MMI.
As argued by the claimant, the respondents asserted in their Response to the claimant's Application for Hearing that Dr. Fitzgerald "affirmed and adopted" Dr. Grant's MMI determination, and that Dr. Fitzgerald's opinion on the issue of MMI was binding unless overcome by clear and convincing evidence. In contrast, at the commencement of the hearing the respondents' counsel asserted that the IME was limited to the issue of medical impairment, and argued that the claimant was required to request an IME on the issue of MMI before the ALJ had authority to determine whether Dr. Grant's MMI determination was correct. (Tr. pp. 7, 11-12).
However, the respondents' attorney agreed with the claimant that the issues for the ALJ's resolution were whether the claimant suffered a psychological injury for which he had not reached MMI, and whether the claimant was temporarily totally disabled from the psychological injury. (Tr. pp. 5, 13). Thereafter, the following colloquy occurred between the respondents' counsel and the ALJ:
"RESPONDENTS' COUNSEL: However, the Division Independent Medical Examination has nothing to do with it. If you find that: He does have a disabling psychiatric condition, that is related to his work injury--then I don't think we have an issue. I think you can find that: He is disabled, and we have to pay him temporary total disability.
ALJ: But, he's not at maximum medical improvement?
RESPONDENTS' COUNSEL: Right."
Based upon these statements, the record indicates that the respondents consented to the ALJ's determination of whether the claimant was not at MMI due to a disabling psychological injury, and thus, the respondents contradicted their assertion that the ALJ could not consider the issue of MMI. Brown v. Colorado Animal Research Enterprises, Inc., supra; cf. Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993) (respondents' assertion that the claimant's layoff was due to economic reasons and not claimant's inability to work was binding admission which supported ALJ's finding on cause of layoff); Durbin v. Bonanza Corp., 716 P.2d 1124, 1128 (Colo.App. 1986) (stipulation is form of judicial admission that is binding on the party who makes it and may be the basis of a judgment. A party may stipulate away valuable rights provided it is not in violation of public policy).
Moreover, even if the ALJ erred in considering the issue of MMI, the respondents invited the error. Consequently, the respondents may not rely upon the error as a basis for appellate relief. See Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo.App. 1993) (respondents cannot complain of confusion in record caused in part by their own contradictory certificates of mailing); Jacobs v. Commonwealth Highland Theatres, Inc., 738 P.2d 6 (Colo.App. 1986).
In this regard, we note that MMI is not divisible. Rather, a claimant is not at MMI until "any medically determinable physical or mental impairment as a result of the injury has become stable." Section 8-40-201(11.5), C.R.S. (1996 Cum. Supp.); Ballinger v. City of Colorado Springs, W.C. No. 4-154-631 October 7, 1996; Bradley v. Ampex Corporation, W.C. No. 4-211-540, January 10, 1996, set aside, Bradley v. Ampex Corporation (Colo.App. No. 96CA0194, September 12, 1996) (not selected for publication) (claimant entitled to continuation of temporary total disability benefits until the treating physician for the psychological component of the industrial injury opined that claimant reached MMI). Thus, insofar as the respondents may be understood as asserting that MMI may be separated between the various compensable components of the industrial injury, we disagree.
Furthermore, Dr. Fitzgerald's IME did address the issue of MMI. Consequently, the facts are distinguishable from the circumstances in Story v. Industrial Claim Appeals Office, supra. Accordingly, we perceive no reversible error in the ALJ's consideration of the MMI issue, and the corresponding claim for further temporary disability benefits.
We also conclude that the medical evidence the ALJ found persuasive supports her determination that Dr. Fitzgerald's initial finding of MMI was overcome by "clear and convincing" evidence. Therefore, the ALJ's determination that the claimant is not at MMI is binding. Sections 8-42-107(8)(b) 8-43-301(8), C.R.S. (1996 Cum. Supp.); Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Moreover, this determination supports the award of further temporary total disability benefits. See Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996).
IT IS THEREFORE ORDERED that the ALJ's order dated October 1, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. DeanNOTICE 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. (1996 Cum. Supp.).
Copies of this decision were mailed March 21, 1997 to the following parties:
Joseph Powell, P.O. Box 1945, Rogue River, OR 97537
Charles L. Delay, L D Electric, Inc., 4754 Chromium Dr., Colorado Springs, CO 80918
Colorado Compensation Insurance Authority, Attn: Brandee L. DeFalco-Galvin, Esq. (Interagency Mail)
Jon C. Thomas, Esq., 1032 North Wahsatch Ave., Colorado Springs, CO 80903 (For the Claimant)
BY: _______________________________