W. C. No. 4-766-736.Industrial Claim Appeals Office.
June 3, 2011.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Mottram (ALJ) dated January 31, 2011 that ordered them to pay medical benefits. We reverse.
The ALJ took evidence on July 13, 2010 and August 30, 2010. The ALJ clarified the issues at the beginning of the first hearing. Although it is an admitted claim the claimant identified compensability as an issue, together with reasonable and necessary medical benefits. The respondents framed the issues as causation and relatedness, rather than compensability. Essentially, the respondents did not pay for a repeat MRI of the claimant’s cervical spine. The claimant had applied for a hearing regarding medical benefits and was later placed at maximum medical improvement (MMI) by her treating physician for her left wrist and elbow. The claimant sought to establish that her neck and shoulder were part of her industrial injury. The claimant had applied for a Division-sponsored independent medical examination (DIME), which had not occurred at the time of the hearing and was held in abeyance pending the hearing in this matter. Counsel for the parties and the ALJ discussed at length the possible legal ramifications of going forward with the hearing. The ALJ indicated that he would not address the issue of MMI, but consider only the issue of medical benefits.
However, the ALJ and the parties were uncertain as to the extent to which the ALJ could consider the cause of the claimant’s neck and shoulder conditions for the purpose of deciding the claimant’s entitlement to corresponding medical benefits where the treating physician had placed the claimant at MMI. The ALJ endeavored to focus on considering the need to treat the claimant’s neck and shoulder without addressing the issue of MMI. He explained that it appeared appropriate to determine the claimant’s
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need for medical treatment that was recommended prior to the claimant reaching MMI. Tr. at 11.
The respondents objected to the ALJ considering “pre-MMI” medical benefits once the claimant had been placed at MMI, but the ALJ proceeded to consider both the relatedness of the claimant’s neck and shoulder condition to her work injury and the issue of medical benefits. It is apparent from the record that the ALJ considered the causation of the claimant’s neck and shoulder complaints for the purpose of determining the claimant’s entitlement to medical benefits. As noted by the respondents’ counsel the claimant did not seek reimbursement for a medical expense, but sought a medical benefit that had not been provided before the claimant was placed at MMI. The ALJ found that the claimant’s neck and shoulder pain were causally related to the claimant’s industrial injury and ordered the respondents to pay for reasonable and necessary medical treatment to the claimant’s neck and left shoulder as is necessary to cure and relieve the effects of her injury.
The ALJ’s order does not identify any specific medical treatment; however, the respondents do not dispute being liable for a repeat MRI of the claimant’s cervical spine according to the ALJ’s order. In addition, counsel for the claimant advised the ALJ at the hearing that the claimant sought additional benefits, such as micro current treatments and physical therapy. See Gonzales v. Public Service Co. of Colorado, W.C. No. 4-131-978 (May 14, 1996) (order determining compensability and containing only a general award of medical benefits is interlocutory, unless the record reveals that specific medical benefits were at issue). We therefore consider the merits of this appeal.
The respondents argue that it was improper for the ALJ to award medical benefits where the claimant has been placed at MMI and is pursuing a DIME. We conclude that the ALJ erred in awarding medical benefits under the circumstances.
According to the ALJ’s findings Dr. Hill indicated that the claimant’s left arm and neck problems were due to her industrial injury. An MRI showed a cervical disc bulge and mild degenerative disc disease in the cervical region of the claimant’s spine. Dr. Hill placed the claimant at MMI for her wrist and continued to treat the claimant’s neck and shoulder complaints. He recommended a repeat MRI of the claimant’s cervical spine. Dr. Paine conducted an impairment rating and gave the claimant a 21 percent rating for her left upper extremity. The respondents filed a final admission of liability admitting for the impairment rating. The claimant objected and requested a DIME, which was held in abeyance pending the hearing. The ALJ credited Dr. Hill’s opinions and found that the claimant’s complaints of neck and shoulder pain are causally related to her industrial injury. He therefore ordered the respondents to pay for reasonable and necessary medical treatment related to the claimant’s neck and left shoulder. Thus, the ALJ recognized that
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the claimant had been placed at MMI for her wrist condition. The ALJ further acknowledged that the respondents admitted for a corresponding impairment rating and that the claimant sought a DIME.
MMI is defined as “a 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. The treating physician’s finding of MMI is challenged by seeking a DIME as the claimant has done in this case. Sections 8-42-107(8)(b)(II), (c) C.R.S.; W. C. Rule of Procedure 11, 7 Code Colo. Reg. 1101-3 see also Heinicke v. Industrial Claim Appeals Office, 197 P.3d 22o, 223 (Colo. App. 2008) (“a DIME must procedurally precede a hearing contesting an ATP’s determinations of MMI and medical impairment in open claims seeking PPD benefits”) Story v. Industrial. Claim Appeals Office, 910 P.2d 80, 82 (Colo. App. 1995) (§ 8-42-107(8)(b) requires DIME prior to hearing to dispute authorized treating physician’s finding of MMI). Moreover, “MMI is not divisible.” Paint Connection Plus v. Industrial Claim Appeals Office, 240 P.3d 429, 433 (Colo. App. 2010).
In this case the ALJ effectively determined the extent of the claimant’s industrial injuries notwithstanding the treating physician’s determination that the claimant had reached MMI. See Egan v. Industrial Claim Appeals Office of State 971 P.2d 664 (Colo. App. 1998) (determining causation is inherent in treating physician’s determination of MMI). The claimant has sought a DIME to challenge the treating physician’s findings. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186, 190 (Colo. App. 2002) (cause of claimant’s condition inherent in DIME physician’s opinion, which must be overcome by clear and convincing evidence). The claimant’s request for additional medical treatment is precluded by her attainment of MMI and the pending DIME. The ALJ therefore erred by awarding medical treatment at this juncture in the case where the treating physician has placed the claimant at MMI for her industrial injury and the DIME has yet to occur. See McCormick v. Exempla Healthcare, W.C. No. 4-594-683 (January 27, 2006), affd, Exempla Healthcare v. Industrial Claim Appeals Office, Case No. 2006CA000329 (Colo. App., Nov. 24, 2006) (not selected for official publication) (ALJ could not consider issue of medical benefits after claimant placed at MMI and no DIME conducted). The issue of medical benefits may be appropriate in the future depending on the outcome of the DIME proceedings, but the ALJ’s present award of medical benefits cannot stand at this juncture in the case.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 31, 2011 is reversed.
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INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Curt Kriksciun
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CONNIE WRIGHT, DURANGO, CO, (Claimant).
C J GRAVEL, INC., Attn: BETH MCLAUGHLIN, DURANGO, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D. FLEWELLING, ESQ., DENVER, CO, (Insurer).
THE SOIGNIER LAW FIRM, LLC, Attn: SHANNON M. SOIGNIER, ESQ., DURANGO, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: JEFF FRANCIS, ESQ., GRAND JUNCTION, CO, (For Respondents).
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