W.C. No. 4-213-838Industrial Claim Appeals Office.
May 21, 1996
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Erickson (ALJ). The respondents contend that the ALJ erroneously awarded temporary total disability benefits commencing December 2, 1994, the date the respondents assert the claimant was determined to be at maximum medical improvement (MMI). We perceive no error, and therefore, affirm.
Pursuant to § 8-42-105(3)(a), C.R.S. (1995 Cum. Supp.), temporary total disability benefits terminate when the claimant reaches MMI. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995), cert. denied
March 4, 1996; McKinley v. Bronco Billy’s, 903 P.2d 1239 (Colo.App. 1995). The determination of MMI is governed by § 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.), which provides that the initial determination of MMI shall be made by the “authorized treating physician who has provided the primary care,” and if either party “disputes” that determination, the claimant must undergo an independent medical examination (IME). The statute also states that “a hearing on this matter shall not take place” until the IME physician’s report has been filed with the Division of Workers’ Compensation. Aren Design, Inc. v. Becerra, 897 P.2d 902
(Colo.App. 1995); Colorado AFL-CIO v. Donlon, ___ P.2d ___ (Colo.App. Nos. 93CA1392, 93CA1118, June 15, 1995).
However, as the respondents recognize, an IME is not a prerequisite to the ALJ’s determination of whether the “primary care physician” made a determination of MMI, and the nature of that determination. See Murphy v. Lower Valley Hospital Association, W.C. No. 3-101-327, June 23, 1995 Keesee v. Dack’s Texturing Services, W.C. No. 4-156-633, December 30, 1994; Johanningsmeier v. Swedish Medical Center, W.C. No. 4-155-315, October 27, 1994. Thus, the ALJ may conduct a hearing to resolve these factual issues without an IME.
Furthermore, the ALJ’s factual determination concerning whether the primary care physician found the claimant to be at MMI is governed by the substantial evidence test. Consequently, we must uphold the ALJ’s findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994 ).
Notwithstanding the respondents’ arguments, the record reflects a factual dispute concerning whether the claimant’s primary care physician, Dr. Gellrick-Lowe (Gellrick) determined the claimant to be at MMI as of December 2, 1994. The ALJ resolved the conflict against the respondents and found that Dr. Gellrick did not determine the claimant to be at MMI.
The ALJ found and it is undisputed that Dr. Gellrick issued a report which stated that the claimant reached MMI on December 2, 1994. However, the ALJ found that Dr. Gellrick reexamined the claimant on December 21, 1994, and recommended additional testing and treatment. Further, the ALJ found that during her July 19, 1995 deposition Dr. Gellrick testified that the December 2, 1994 report of MMI was in error and that the claimant was not at MMI on December 2, 1994 or at any time up to the date of the deposition.
The ALJ’s findings are a plausible interpretation of Dr. Gellrick’s testimony. (Gellrick depo. pp. 23, 27-28, 42-43). Furthermore, to the extent that Dr. Gellrick’s testimony is subject to conflicting interpretation, it was the ALJ’s sole prerogative to resolve the conflicts by crediting Dr. Gellrick’s testimony that she “reversed” her December 2, 1994 determination of MMI. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968); El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993) (ALJ free to credit all, part or none of witness’ testimony).
In view of the ALJ’s finding that the primary care physician has not determined MMI, the claimant’s request for temporary disability benefits is not an inherent challenge to an MMI determination. Therefore, the IME provisions of § 8-42-107(8)(b) were not triggered, and the ALJ did not exceed his authority in adjudicating the claim for temporary disability benefits in the absence of an IME. Compare Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995) (request for change of provider was constructive challenge to MMI determination and ALJ lacked authority to hear request in the absence of an IME).
IT IS THEREFORE ORDERED that the ALJ’s order dated October 12, 1995, 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 iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed May 21, 1996 to the following parties:
Steven C. Westerkamp, 7634 Wyandot, Denver, CO 80221
Staff Administrators, Inc., Attn: Gail Greer, 7100 N. Broadway, #1 CPTH, Denver, CO 80221
Liberty Mutual Insurance Co., 13111 E. Briarwood Ave., #100, Englewood, CO 80112
Stephen Berkowitz, Esq., 650 Cherry St., Ste. 210, Denver, CO 80203 (For the Claimant)
Raymond A. Melton, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For the Respondents)
BY: _______________________