W.C. No. 4-133-911Industrial Claim Appeals Office.
April 18, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Friend (ALJ) which denied her claim for temporary total disability benefits from January 3, 1995 through January 15, 1996. We affirm.
The claimant sustained a compensable injury in 1992. In 1994 she underwent cervical surgery at the hands of Dr. Moore. On January 3, 1995, Dr. Moore placed the claimant at maximum medical improvement (MMI), stating that she had “failed multiple follow up” appointments and he had not seen her since October 1994.
Prior to January 1995, the claimant was also treated for depression by Dr. LaCerte, a licensed clinical psychologist. Dr. LaCerte’s report of August 20, 1995, states that the claimant failed to appear for an appointment on January 3, 1995, and “also missed previously scheduled appointments.”
Following Dr. Moore’s report that the claimant reached MMI, the respondents filed a Final Admission of Liability terminating the claimant’s temporary disability benefits on January 3, 1995. The respondents also requested a Division-sponsored independent medical examination (IME) on the issue of impairment.
The Division IME was performed by Dr. Fernandez in May 1995. Dr. Fernandez opined that the claimant suffered a fifteen percent whole person medical impairment, which was attributable to her spinal condition. She also stated her “agreement” with Dr. Moore that the claimant reached MMI on January 3.
The claimant testified that her cervical condition worsened after January 3, 1995. She also stated that she experienced additional psychological difficulties.
In January 1996, Dr. Moore determined that the claimant was suffering from pseudarthrosis at C4-5, and recommended that the claimant undergo surgery. In a report dated April 2, 1996 Dr. Moore opined that, under these circumstances, it was his opinion that the claimant never reached MMI. Dr. Fernandez was also deposed. She opined that in view of the new evidence, the claimant never reached MMI because the cervical condition did not heal, and because the claimant was still suffering from psychological symptoms which warranted treatment. (Fernandez depo. pp. 9-10).
The claimant reported to Dr. LaCerte in August 1995, apparently on referral from Dr. Moore. In a report dated January 3, 1996 Dr. LaCerte indicated that the claimant was suffering from depression, but “terminated” her treatment because the claimant missed an appointment with Dr. Ristig, a psychiatrist.
The ALJ rejected the claimant’s argument that she did not reach MMI on January 3, 1995. To the contrary, the ALJ found that the claimant failed to overcome Dr. Fernandez’ initial IME opinion that the claimant reached MMI on January 3. In support, the ALJ stated that after January 3 the claimant “declined to appear” for treatments which were offered by Dr. Moore and Dr. LaCerte. The ALJ reasoned that since the claimant was refusing to appear for treatment, further treatment would not lead to MMI because it was “not likely to improve the claimant’s condition.” The ALJ also found that “later examinations and treatment,” and the deposition of Dr. Fernandez, were “not persuasive to the contrary.” Consequently, the ALJ denied temporary disability benefits between January 3, 1995, and January 16, 1996. However, temporary benefits were reinstated commencing January 16 based on the ALJ’s determination that the claimant’s condition had worsened and she was seeking treatment.
I.
On review, the claimant first contends that the ALJ erred in failing to award temporary disability benefits after January 3, 1995, because the ALJ found that Dr. LaCerte was a primary care physician for the psychiatric condition, and Dr. LaCerte never placed the claimant at MMI. In support of this proposition, the claimant relies on cases such a Martinez v. Meadow Gold Dairy Products, W.C. No. 3-105-407 (September 12, 1995), in which we noted that a claimant may have more than one primary care physician, and that these physicians may be treating different aspects of the industrial injury. See also, Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996). In those cases, we held that the physicians treating different components of the industrial injury must agree that the claimant has reached MMI before the IME provisions of § 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.) [subsequently amended for MMI determinations on or after July 1, 1996], are triggered. Nevertheless, under the facts of this case, we perceive no error.
Here, at the time of the hearing, the claimant’s counsel expressly advised the ALJ that the issue was whether or not the claimant could overcome Dr. Fernandez’ MMI determination by clear and convincing evidence. (Tr. pp. 6, 10). In our view, this constituted a judicial admission that the claimant had been placed at MMI by the relevant authorized treating physician or physicians providing primary care, and that the IME provisions of § 8-42-107(8)(b) had been triggered. The claimant is not now in a position to argue on appeal that the IME provisions were not triggered. For the same reason we decline the claimant’s invitation to review the record to determine whether it might support the conclusion that the authorized treating physician or physicians did not place the claimant at MMI on January 3, 1995. See Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993); cf. Brown v. Colorado Animal Research Enterprises, Inc., W.C. No. 4-179-337 (October 30, 1996) (ALJ properly considered whether IME physician’s MMI opinion was overcome by clear and convincing evidence, despite failure of any party to request an IME on the issue of MMI, because parties consented to allow ALJ to consider the MMI issue).
II.
The claimant’s remaining arguments concern whether the ALJ correctly found that Dr. Fernandez’ initial opinion on MMI was not overcome by clear and convincing evidence. In support of her position that the evidence does not justify the ALJ’s order, the claimant relies on the fact that Dr. Moore opined that the claimant never reached MMI because the surgery did not heal. The claimant also relies on the evidence that, in her deposition, Dr. Fernandez changed her opinion concerning MMI.
As a corollary to these arguments, the claimant contends that it was improper for the ALJ to consider whether or not the claimant complied with and attended treatment prior to January 3, 1995. The claimant reasons that her willingness to cooperate with treatment does not relate to whether or not she was at MMI, but whether or not her benefits could be suspended under § 8-43-404(3), C.R.S. (1996 Cum. Supp.). We are not persuaded.
Section 8-40-201(11.5), C.R.S. (1996 Cum. Supp.), defines maximum medical improvement 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.” Although this statutory definition of MMI was not adopted until 1991, it essentially codifies preexisting case law concerning the definition of MMI and its affects on a claimant’s right to benefits. See Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995).
In cases decided prior to the adoption of § 8-40-201(11.5), our courts held that a claimant’s unwillingness to submit to medical treatment designed to improve her condition constituted a sufficient basis for finding that the claimant’s condition was stable and at MMI See Reynolds v. Industrial Claim Appeals Office, 794 P.2d 1080
(Colo.App. 1990); Dziewior v. Michigan General Corp., 672 P.2d 1026
(Colo.App. 1983). However, if the claimant subsequently indicated a willingness to undergo remedial medical treatment, MMI no longer existed. Thus, reinstatement of temporary disability benefits was proper on the theory that the “disqualifying condition” had been removed and “suspension” was no longer appropriate under the statute currently codified at § 8-43-404(3). Dziewior v. Michigan General Corp., supra.
Further, the question of whether an IME physician’s opinion concerning MMI has been overcome by clear and convincing evidence is one of fact for resolution by the ALJ. Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995). Consequently, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.). In applying this standard, we may not substitute our judgement for that of the ALJ concerning the weight of the evidence, the credibility of the witnesses or the plausible inferences to be drawn from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Applying these principles here, we perceive no error in the ALJ’s order. The claimant’s argument notwithstanding, it is proper for treating physicians to determine that a claimant has reached MMI because the claimant has declined to participate in treatment designed to improve or stabilize the medical condition. As the ALJ held, the claimant’s willingness to participate in treatment inherently involves the question of whether further treatment can be expected to improve the condition Dziewior v. Michigan General Corp., supra. Moreover, § 8-40-201(11.5) and § 8-43-404(3) are not inconsistent in their operation, and can be harmonized. Dziewior v. Michigan General Corp., supra.
In view of this conclusion, we must uphold the ALJ’s conclusion that Dr. Fernandez’ May 12, 1995 MMI determination was not overcome by clear and convincing evidence. Regardless of whether further treatment “could have” improved the claimant’s condition on May 12, 1995, the evidence supports the ALJ’s finding that the claimant did not demonstrate her willingness to participate in that treatment until January 16, 1996. Consequently, there is substantial evidence that the claimant was at MMI on May 12, 1995, without regard to whether she needed additional treatment for her neck and psychological conditions.
Insofar as the claimant has made other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 24, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Orderis 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 AppealsOffice and all other parties, within twenty (20) days after the date theOrder was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996Cum. Supp.).
Copies of this decision were mailed April 18, 1997 to the following parties:
Djaleh Sadaghiani, 122 Joliet Circle, No. 206, Aurora, CO 80012
Impressive Cleaners Laundry, 2713 S. Parker Road, Aurora, CO 80014-2701
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency mail)
Lawrence D. Blackman, Esq., 1515 Arapahoe St., Tower 3, Ste. 600, Denver, CO 80202 (For the Claimant)
John V. Fitzsimons, Esq., 3464 S. Willow St., Denver, CO 80231-4599 (For the Respondents)
By: ______________________________________________