Opinion
W.C. No. 4-376-077.
November 24, 1999.
FINAL ORDER.
The claimant filed a Petition to Review an order of Administrative Law Judge Martinez (ALJ) dated August 3, 1999, which approved the respondent's Final Admission of Liability for permanent partial disability benefits. The matter was subsequently transmitted to us for review.
In a letter dated November 17, 1999, the claimant's counsel has notified us that the claimant "formally withdraws her appeal."
IT IS THEREFORE ORDERED that the claimant's Petition to Review is dismissed with prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
_____________________________ Kathy E. Dean
______________________________ Bill Whitacre
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. 1999.
Copies of this decision were mailed November 24, 1999 to the following parties:
Kim Smith, 326 24th Pl., Rifle, CO 81650.
Kmart, 3100 W. Big Beaver Rd., Troy, MI 48084-3004.
Kmart Corporation, — McMillan Claims, 2785 N. Speer Blvd., Denver, CO 80211.
Susan Warren, IME Unit, Division of Workers' Compensation — Interagency Mail.
Donald J. Kaufman, Esq., 401 23rd St., #302, Glenwood Springs, CO 81601 (For Claimant).
Lynn Petersen, Esq., 1777 S. Harrison, #1110, Denver, CO 80210 (For Respondents).
BY A. Pendroy
IN RE STEELE, W.C. No. 3-108-677 (11/18/99) IN THE MATTER OF THE CLAIM OF BETTY S. STEELE, Claimant, v. THE RESOURCE CENTER, INC., Employer, and COLORADO COMPENSATION INSURANCE AUTHORITY, Insurer, Respondents. W.C. No. 3-108-677. INDUSTRIAL CLAIM APPEALS OFFICE. November 18, 1999.
FINAL ORDER.
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) dated May 10, 1999. The respondents contend the ALJ erred insofar as he ordered them to provide a medical impairment rating for the claimant's cervical spine, right shoulder and right upper arm. We agree, and therefore, we set aside the contested portion of the order.
The claimant suffered compensable injuries on March 18, 1992, when she tripped over a cord. The Employer's First Report of Injury indicated the claimant injured her hip, right arm and shoulder. Dr. Knackendoffel placed the claimant at maximum medical improvement (MMI) on February 1, 1993, with 3 percent whole person impairment to the lumbar spine and right upper extremity. The respondents filed an uncontested Final Admission of Liability which admitted liability for medical impairment benefits consistent with Dr. Knackendoffel's rating.
The claimant subsequently suffered a worsening of condition and underwent two back surgeries. The respondents voluntarily reopened the claim and admitted liability for additional treatment of the claimant's back and legs, but denied liability for additional treatment of the claimant's right upper arm, neck and right shoulder.
On September 21, 1998, the respondents requested that Dr. Hall evaluate the claimant's permanent impairment from all "work-related conditions," and directed Dr. Hall not to include a rating for the claimant's "knees or her throat." Dr. Hall determined the claimant reached MMI for the worsened condition on March 2, 1998, with 33 whole person impairment due to depression and medical impairment of the claimant's lumbar spine, legs, and right wrist. Dr. Hall did not include a rating for permanent impairment to the claimant's neck, upper arm and shoulder. The claimant did not dispute Dr. Hall's MMI determination or rating by requesting a Division-sponsored independent medical examination (IME). Rather, the claimant requested additional treatment for injuries to her right upper arm, neck and right shoulder, and a medical impairment rating for these injuries.
The ALJ determined that the causal connection between the industrial injury and the claimant's cervical, right shoulder and right upper extremity problems was a question for fact for his resolution. (Conclusions of Law 24, 25). Based upon the evidence presented at a hearing on March 22, 1999, the ALJ determined the claimant proved by a preponderance of evidence that she sustained compensable injuries to her cervical spine, right shoulder and right upper extremity. The ALJ ordered the respondents to provide medical benefits to cure or relieve the effects of these injuries. The ALJ also required the respondents to pay for any permanent medical impairment attributable to these injuries and directed the respondents to "arrange for a permanent medical impairment rating" of the claimant's cervical spine, upper arm and shoulder.
On review, the respondents contend that in the absence of a Division-sponsored IME under the provisions of § 8-42-107(8), C.R.S. 1999, the ALJ exceeded his authority in finding the claimant suffered compensable injuries to her neck, shoulder and upper arm. We agree.
Under § 8-42-107(8)(b) (c) the initial determination of MMI and medical impairment shall be made by an authorized treating physician. If either party disputes the accuracy of the authorized treating physician's opinions, a hearing on the issue shall not take place until the claimant has undergone a Division-sponsored 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 these 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. We reasoned that if the claimant is allowed to present evidence of the 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 MMI is defined as the point in time 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. Section 8-40-201(11.5), C.R.S. 1999. (Emphasis added); see also Reynolds v. Industrial Claim Appeals Office, 794 P.2d 1080 (Colo.App. 1990). Therefore, a physician's finding of MMI necessarily reflects the physician's determination that no further treatment is reasonably expected to improve the compensable components of the injury. We adhere to our prior conclusions.
However, the claimant contends that the IME provisions in § 8-42-107(8)(b) (c) are not applicable to this claim because she does not contest Dr. Hall's rating and finding of MMI for the injuries to her right wrist, legs and lower back. She contends that Dr. Hall did not purport to evaluate her cervical spine, right shoulder or upper arm, and therefore, she argues that Dr. Hall's report contains no opinion concerning whether she is at MMI with permanent impairment from these injuries. Further, the claimant contends that § 8-42-107(8) does not govern a claim for medical benefits. We reject these arguments.
It is now well established that inherent in the authorized treating physician's determination of MMI and medical impairment is an opinion concerning the cause of the claimant's condition. Egan v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA0821, November 13, 1998); Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998). Therefore, the absence of a medical impairment rating for a particular condition implicitly reflects the physician's determination that the particular condition is not causally related to the industrial injury.
Here, no party contests Dr. Hall's status as an "authorized treating physician" as defined by § 8-42-107(8), and Dr. Hall does not list any exceptions to his finding of MMI. Neither did Dr. Hall include a rating for permanent impairment to the claimant's neck, right shoulder and upper arm. Consequently, the claimant's request for a medical impairment rating of her right shoulder, neck and upper arm is a constructive challenge to Dr. Hall's opinion that the claimant is at MMI without compensable permanent impairment to the cervical spine, upper arm and right shoulder. Under these circumstances, a Division-sponsored IME is a prerequisite to a hearing on the claimant's request for additional medical impairment benefits, and the ALJ exceeded his authority in determining that the respondents are liable for additional medical impairment benefits on account of permanent impairment to the claimant's neck, right shoulder and right upper arm. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998).
Furthermore, the claimant's reliance on Torgerson v. Wycon Construction, W.C. No. 4-336-530 (April 13, 1999) and Clark v. Excel Corp., W.C. No. 4-347-891 (June 23, 1999), as authority for a contrary conclusion is misplaced. In Torgerson and Clark we held that the "cause" of the claimant's condition was a question of fact for resolution by the ALJ. However, Torgerson and Clark involved the determination of causation prior to a determination of MMI and medical impairment. Therefore, Torgerson and Clark are distinguishable because neither case involved events which triggered the IME provisions of § 8-42-107(8).
IT IS THEREFORE ORDERED that the ALJ's order dated May 10, 1999, is set aside insofar as it requires the respondents to "arrange for a medical impairment rating" of the claimant's cervical spine, right shoulder and upper right arm.
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. 1999.
Copies of this decision were mailed November 18, 1999 to the following parties:
Betty S. Steele, P.O. Box 2147, Redmond, OR 97756-2147.
The Resource Center, Inc., 1129 Colorado Ave., Grand Junction, CO 81501.
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority — Interagency Mail, (For Respondents).
J. Keith Killian, Esq., P.O. Box 4859, 225 N. 5th St., #1010, Grand Junction, CO 81502, (For Claimant).
David L. Smith, Esq., 600 17th St., #1600N, Denver, CO 80202.
BY: A. Pendroy