W.C. No. 4-179-480Industrial Claim Appeals Office.
January 24, 1997
FINAL ORDER
The respondents seek review of a final order of Chief Administrative Law Judge Felter (ALJ) which required them to pay permanent partial disability benefits based upon medical impairment of twelve percent of the whole person, commencing November 15, 1995. We modify the order, and as modified, affirm it.
The claimant sustained an admitted compensable back injury on May 29, 1993, which was treated by Dr. Taylor. Relying on Dr. Taylor’s opinion that the claimant reached maximum medical improvement (MMI) on October 4, 1993, with no permanent impairment, the respondents filed a Final Admission of Liability in which they admitted liability for zero medical impairment benefits.
The claimant disputed Dr. Taylor’s opinion and requested a Division-sponsored independent medical examination (IME). The IME was performed by Dr. Aschberger on November 15, 1995. Using the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides), Dr. Aschberger determined that the claimant sustained permanent impairment of twelve percent of the whole person as a result of the May 29 injury.
The respondents disputed Dr. Aschberger’s rating and applied for a hearing on the issue of permanent partial disability. Relying upon testimony from the claimant and Dr. Taylor’s deposition, the respondents argued that Dr. Aschberger incorrectly rated the claimant’s permanent medical impairment.
The ALJ was not persuaded by the respondents’ evidence. The ALJ also noted that the only other evaluation of the claimant’s medical impairment was performed by Dr. Harder, and that Dr. Harder’s rating of fifteen percent whole person impairment is inconsistent with the respondents’ assertion that the claimant has no permanent impairment. Consequently, the ALJ determined that the respondents failed to sustain their burden of proof to overcome Dr. Aschberger’s rating by “clear and convincing evidence,” as required by § 8-42-107(8)(c), C.R.S. (1995 Cum. Supp.) [amended 1996 Colo. Sess. Laws, Ch. 112 at 269 for MMI determinations on or after July 1, 1995].
Furthermore, because Dr. Taylor was not Level II accredited at the time he found the claimant to be at MMI, the ALJ also found that Dr. Taylor’s MMI determination was “invalid.” Therefore, the ALJ made an independent determination that the claimant reached MMI on November 15, 1995, the date Dr. Aschberger evaluated his permanent impairment. Consequently, the ALJ ordered the respondents to pay permanent partial disability benefits in accordance with Dr. Aschberger’s impairment rating commencing November 15, 1995.
I.
On review, the respondents first contend that the issue of MMI was not properly before the ALJ, and therefore, they argue that the ALJ exceeded his authority in finding that the claimant reached MMI on November 15, 1995. We agree.
As argued by the respondents, neither the claimant nor the respondents endorsed the issue of MMI for hearing. Similarly, the issue was not endorsed at the commencement of the hearing, or tried by consent. (Tr. pp. 3-17). We also note that at the conclusion of the hearing neither party asked the ALJ to consider the issue of MMI, and the ALJ did not indicate that he would do so. (Tr. pp. 32-39).
In any case, the applicable law provides that the initial determination of MMI shall be made by the authorized treating physician who has provided the primary care, and if that determination is disputed, the disputing party must request an IME. Section 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.) [amended 1996 Colo. Sess. Laws, Ch. 112 at 269 for MMI determinations on or after July 1, 1996]; Aren Design, Inc. v. Becerra, 897 P.2d 902
(Colo.App. 1995). Section 8-42-107(8)(b) also provides that no hearing on the issue of MMI may be held prior to the filing of the IME physician’s findings. Blue Mesa Forest v. Lopez,
___ P.2d ___ (Colo.App. No. 96CA0436, October 24, 1996); Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995).
Admittedly, an IME is not a prerequisite to the ALJ’s resolution of a factual dispute concerning the identity of the “primary care” physician, or whether that physician determined the claimant to be at MMI. Blue Mesa Forest v. Lopez, supra; Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995). Similarly, where the claimant has multiple “primary care” physicians with conflicting opinions on the issue of MMI, the ALJ may resolve the conflict without an IME. However, no such factual dispute was asserted in this matter.
Furthermore, the Court of Appeals has rejected an argument that the request for an IME on the issue of permanent medical impairment is sufficient to put the issue of MMI before the ALJ See Cunningham Construction v. Carroll, Colo. App. No. 96CA1008, December 12, 1996 (not selected for publication), affirming Carroll v. Cunningham Construction, W.C. No. 3-113-816, May 14, 1996. In Carroll, the “primary care” physician determined the claimant to be at MMI without permanent impairment. The insurer requested an IME on the issue of permanent medical impairment. The IME physician rated the claimant’s permanent impairment as forty-seven percent of the whole person but also opined that the claimant was not at MMI. Based upon the IME physician’s opinion on the issue of MMI, the insurer asserted that it was premature to adjudicate the issue of permanent disability. The Carroll court disagreed and upheld our conclusion that the absence of a request for an IME on the issue of MMI precluded that ALJ from determining whether the primary care physician erred in finding that the claimant had reached MMI.
We perceive no appreciable distinction between the facts in this case and the circumstances in Carroll. Therefore, we decline to depart from our prior view.
Here it is undisputed that the claimant requested a Division-sponsored IME on the issue of permanent medical impairment. However, the record does not suggest that either party requested an IME on the issue of MMI. This is also evidenced by the fact that in completing the “IME Examiner’s Information Sheet,” Dr. Aschberger stated his rating of the claimant’s medical impairment, but did not answer any question concerning MMI.
Under these circumstances, the issue of MMI was not properly before the ALJ for adjudication. Therefore, we must set aside the ALJ’s finding that the claimant reached MMI on the date his permanent impairment was rated by Dr. Aschberger.
The ALJ also erred in concluding that Dr. Taylor’s MMI determination was “invalid” because Dr. Taylor was not Level II accredited as of October 4, 1993. There is no statutory requirement that the primary care physician possess Level II accreditation to determine MMI. Rather, the Workers’ Compensation Act requires Level II accreditation for physicians who evaluate medical impairment. See §§ 8-42-101(3.6)(b), C.R.S. (1996 Cum Supp.), and 8-42-107(8)(c). Accordingly, Dr. Taylor’s opinion that the claimant reached MMI on October 4, 1993, was binding.
In reaching this conclusion, we are aware of the application of the Rules of Procedure, Part IV(N)(4)(d), 7 Code Colo. Reg., 1101-3 at 7 (1994) [amended 19CR11 effective November 30, 1996], where the treating physician is not Level II accredited at the time he renders an opinion concerning the claimant’s permanent impairment. However, neither party contests the ALJ’s order on this basis. Therefore, we do not consider that issue.
II.
Instead, the respondents argue that they overcame Dr. Aschberger’s medical impairment rating by clear and convincing evidence. In support, the respondents contend that Dr. Aschberger’s report is defective on its face. The respondents also contend that the evidence shows the claimant had “few, if any” back problems at the time of Aschberger’s rating. Further, the respondents contend that the ALJ erroneously required them to overcome Dr. Aschberger’s medical impairment rating by clear and convincing “expert medical evidence.” We reject these arguments.
In the context of § 8-42-107(8), “clear and convincing evidence” is evidence which establishes that it is “highly probable” the IME physician’s medical impairment rating is incorrect. Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995). The question of whether such evidence has been presented is a question of fact for the ALJ. Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995); Metro Moving Storage Co. v. Gussert, supra. Accordingly, we must uphold the ALJ’s determination if supported by substantial evidence and the ALJ’s plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.); Postlewait v. Midwest Barricade, supra.
Here, the ALJ found that Dr. Taylor’s testimony was “replete with speculation” about the claimant’s permanent impairment. Furthermore, the ALJ determined that Dr. Taylor did not purport to evaluate the claimant’s medical impairment in accordance with the AMA Guides. Rather, the ALJ found that Dr. Taylor assumed that the claimant had no permanent impairment because the claimant failed to “follow up as directed,” for further examination.
Notwithstanding the respondents’ arguments, these findings are amply supported by Dr. Taylor’s testimony. (Taylor depo. pp. 14, 16, 24, 26). Dr. Taylor also stated that he had not seen Dr. Aschberger’s report and could not comment on the accuracy of Dr. Aschberger’s rating without “additional clinical information on the patient.” (Taylor, depo. p. 19).
The ALJ also found that the claimant’s testimony did not refute Dr. Aschberger’s opinion that the claimant sustained twelve percent impairment of the whole person from the May 29 injury. In so doing, the ALJ credited the claimant’s testimony that he had not returned to work at full duty since the industrial injury and has had continuous back pain since May 29. (Tr. pp. 21, 22, 27).
The ALJ could, and did, infer from this evidence that it was not highly probable that Dr. Aschberger incorrectly rated the claimant’s impairment. Consequently, we must uphold the ALJ’s determination that the respondents failed to sustain their burden of proof. It is immaterial that the record contains some evidence which, if credited, might support a contrary conclusion.
Next, we not persuaded that the ALJ required the respondents to sustain their burden of proof by “expert medical evidence.”See Specific Conclusions of Law a, b. The ALJ expressly considered the lay testimony by the claimant and determined that it did not rise to he level of clear and convincing evidence to overcome Dr. Aschberger’s rating. See Findings of Fact 13, 14. Further the ALJ determined that insofar as the respondents relied upon expert testimony from Dr. Taylor, the testimony was not persuasive. See Tr. pp. 32, 33, 37; CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev’d on other grounds
at 783 P.2d 269 (1989) (the ALJ’s oral findings may be considered to interpret the ALJ’s written findings).
We also recognize that in his report, Dr. Aschberger states that the claimant “does have an impairment, although I cannot say that it is permanent.” However, this statement does not compel a conclusion that Dr. Aschberger’s rating is “defective on its face.” Insofar as Dr. Aschberger’s report is subject to conflicting inferences concerning whether he rated the claimant’s “permanent” impairment, that conflict was a matter for resolution by the ALJ, as the fact finder. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). In view of the ALJ’s finding that the claimant had reached MMI when Dr. Aschberger evaluated his medical impairment, the ALJ implicitly determined that Dr. Aschberger’s rating pertains to the claimant’s “permanent” impairment.
Moreover, by definition, MMI exists when “any medically determinable physical or mental impairment as a result of injury has become stable.” Section 8-40-201(11.5), C.R.S. (1996 Cum. Supp.). As stated above, the parties waived the issue of whether the claimant had reached MMI. In fact, the respondents asserted that the claimant reached MMI in 1993. Therefore, the respondents implicitly conceded that the IME physician’s rating pertained to “permanent” medical impairment.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 10, 1996, is modified to require the payment of permanent partial disability benefits based upon 12% medical impairment of the whole person, at the rate of $213.33 per week, commencing October 4, 1993, the date the claimant reached maximum medical improvement, and continuing until paid in full. As specifically modified, the ALJ’s order is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed January 24, 1997 to the following parties:
Michael K. Barrows, 341 S. Estes, #35, Lakewood, CO 80226
Park Rite, Inc., Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. — (Interagency Mail)
Clark Litten, Esq., 50 S. Steele St., Ste. 586, Denver, CO 80209 (For the Claimant)
By: ______________________________________________