W.C. No. 3-113-816Industrial Claim Appeals Office.
May 14, 1996
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Martinez (ALJ) which awarded medical impairment benefits based upon a disability of forty-one percent of the whole person. We affirm.
The claimant sustained an injury to his low back and head on June 8, 1994. In a report dated June 9, 1995, the claimant’s authorized treating physician, Dr. Charnas, opined that the claimant reached maximum medical improvement (MMI) on February 25, 1995. Dr. Charnas also opined that the claimant “will require life long seizure medication.”
After Dr. Charnas issued his report the respondents filed a “Request For An Independent Medical Examination” dated June 20, 1995. In a section of the request marked “Issue,” the respondents checked the space for “impairment,” but not the space for “MMI.”
Pursuant to the respondents’ request, a division-sponsored independent medical examination (IME) was performed on August 21, 1995. The IME physician, Dr. Yarnell, issued a report stating that the claimant has a forty-seven percent whole person impairment. Dr. Yarnell also opined that the claimant is not at MMI because he still has panic attacks, headaches and seizures.
At the hearing, the respondents disputed Dr. Yarnell’s impairment rating. However, the respondents also argued that the determination of the claimant’s medical impairment was premature because Dr. Yarnell stated that the claimant was not at MMI.
The ALJ rejected the argument that the determination of medical impairment was premature. Citing § 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.), the ALJ concluded that the “respondents’ failure to dispute the treating physician’s finding of” MMI by requesting an IME was “dispositive.” The ALJ then went on to find that the claimant’s “permanent medical impairment is forty-one percent not forty-seven percent as rated by Dr. Yarnell.”
On review, the respondents make two related arguments. First, the respondents contend that the ALJ erroneously concluded that they “waived” their right to contest MMI by failing to request an IME. The respondents go on to argue that the determination of the claimant’s medical impairment was premature because the issue of MMI was unresolved. We reject these arguments.
Initially, we disagree with the respondents’ assertion that the ALJ applied the equitable doctrine of waiver in holding that the issue of MMI was not properly before the court. To the contrary, the ALJ expressly applied the statutory provisions of § 8-42-107(8)(b).
Section 8-42-107(8)(b) provides that the “authorized treating physician who has provided the primary care shall determine when the injured employee reaches maximum medical improvement.” The statute goes on to state that, if either party “disputes” the authorized treating physician’s determination of MMI, the division may appoint an IME physician whose determination of MMI “shall be overcome only by clear and convincing evidence.” Finally, the statute provides that “a hearing on this matter shall not take place until the finding of the independent medical examiner selected by the director has been filed with the division.”
One of the objectives of this statutory scheme is to reduce litigation concerning the issue of MMI. Colorado AFL-CIO v. Donlon, ___ P.2d ___ (Colo.App. No. 93CA1118, 93CA1392, June 15, 1995). Thus, the authorized treating physician’s determination of MMI is binding unless either party “disputes” the determination by seeking an IME under § 8-42-107(8)(b) Aren Design, Inc. v. Becerra, 897 P.2d 902 (Colo.App. 1995). Indeed, an ALJ lacks “jurisdiction” to consider the issue of MMI unless the parties have first pursued the IME procedure. Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995).
It follows that the ALJ correctly determined that the issue of MMI was “not properly before the court.” The respondents did not dispute the authorized treating physician’s determination of MMI by requesting an IME under § 8-42-107(8)(b). See Rule of Procedure XIV(L)(3)(a), 7 Code Colo. Reg. 1101-3 at 55 (1995) (parties may request an IME by “filing the prescribed forms”). The respondents’ request for an IME was directed solely to the issue of the claimant’s permanent medical impairment, not the issue of MMI.
Further, there is nothing inherently inconsistent in requesting an IME for the purpose of determining medical impairment under § 8-42-107(8)(c), C.R.S. (1995 Cum. Supp.), without requesting an IME for the purpose of determining MMI. The parties may be satisfied with the authorized treating physician’s opinion concerning the date of MMI, but seek an IME for the limited purpose of contesting the degree of permanent medical impairment. In fact, permitting parties to limit the scope of their request for an IME serves the statutory purpose of reducing litigation concerning MMI.
Further, the fact that Dr. Yarnell believed that the claimant was not at MMI is of no consequence under the statutory scheme. Dr. Yarnell was not asked to review the MMI determination, and his opinion on this issue is of only academic interest. In any event, the respondents should not be entitled to utilize Yarnell’s opinion as a back door approach to attack his opinion concerning the degree of medical impairment.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 5, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed May 14, 1996 to the following parties:
Raymond Carroll, P.O. Box 1084, Clifton, CO 81520
Fred Cunningham Const. Co., 397 Ridges Blvd., Grand Junction, CO 81503-4630
Colorado Compensation Insurance Authority, Attn: Marjorie J. Long, Esq. (Interagency Mail)
IME Unit, Attn: Faye Boyd (Interagency Mail)
Thomas W. Blake, Esq., 744 Horizon Ct., Ste. 360, Grand Junction, CO 81506
Christopher Seidman, Esq., P.O. Box 3207, Grand Junction, CO 81502 (For the Claimant)
By: _______________________