IN THE MATTER OF THE CLAIM OF PATRICIA MARTINEZ, Claimant, v. CITY OF COLORADO SPRINGS, Employer, and SELF-INSURED, Respondent.

W.C. Nos. 4-727-623, 4-752-214.Industrial Claim Appeals Office.
October 16, 2009.

FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Walsh (ALJ) dated June 10, 2009, that ordered the respondent to pay permanent partial disability (PPD)benefits on a March 5, 2003 claim identified as W.C. No. 4-752-214 (2003 claim). The ALJ also ordered payment of permanent total disability (PTD) benefits on a June 13, 2007 claim identified as W.C. No. 4-727-623 (2007 claim). We set aside the order insofar as it awarded PPD benefits. The ALJ’s order is otherwise affirmed

The claimant suffered an industrial injury on March 5, 2003 identified as W.C. No. 4-752-214 (2003 claim). The claimant suffered an industrial injury on June 13, 2007 W.C. No. 4-727-623 (2007 claim). The ALJ determined that the clamant met her burden of proof to establish that she is permanently and totally disabled as a result of the 2007 claim. The ALJ ordered the respondent to pay PTD benefits commencing on the date of maximum medial improvement of April 17, 2008 as a result of the 2007 claim. In addition, the ALJ determined that the claimant had proved by a preponderance of the evidence that she was entitled to PPD benefits for the 2003 claim. The ALJ awarded PPD benefits based upon on Dr. “Richman’s opinion, that the claimant had sustained nine percent whole person impairment for her physical injuries and a five percent psychological disability related to the 2003 claim. The ALJ ordered the respondent to pay the claimant permanent partial disability benefits for the 2003 claim. The ALJ did not specify a date for the commencement of payment for the PPD benefits. On appeal,

Page 2

the respondent contends that ALJ erred in ordering payment of PPD benefits for the 2003 claim while simultaneously awarding PTD benefits under the 2007 claim.

A claimant can be no more than totally disabled at any given moment. See Kehm v. Continental Grain, 756 P.2d 381 (Colo. App. 1987). Therefore, if the claimant did not become entitled to permanent partial disability benefits prior to the effective date of the permanent total disability award, she is not entitled to permanent partial disability benefits Weidmann v. Colorado State University, W.C. 3-636-836, 3-730-698 3-841-781 (September 06, 1990).

The claimant concedes that she cannot receive PPD benefits at the same time she receive PTD benefits. The claimant further concedes that the date of maximum medical improvement for the 2003 claim was not unambiguously set forth in the June 10, 2009 Order. However, the claimant argues that it is sufficient that the date of maximum medial improvement and more importantly the impairment pre-existed the 2007 claim. Therefore, the claimant argues that the 2003 claim and the 2007 claim are not simultaneously payable. We disagree.

We first note that the claims here were litigated in an unusual manner. The 2003 claim was filed after the 2007 claim had been filed. Moreover, even the compensability of the 2003 injury was not resolved until the entry of the ALJ’s order in 2009. We further note that the ALJ ordered the payment of PTD benefits to commence on April 17, 2008. However, the order contains no specific provision for when the payment of PPD benefits was to begin.

Section 8-42-107(8)(d) C.R.S. 2009 provides that medical impairment benefits are payable beginning on the date of maximum medical improvement. The ALJ’s order contains a specific finding on maximum medical improvement. Finding of Fact § 12 at 17. The ALJ found that Dr. Leppard who had conducted the Division-sponsored independent medical examination (DIME) determined that the claimant was at maximum medical improvement on April 17, 2008. Exhibit B at 18. The ALJ further found that the respondent had failed to prove by clear and convincing evidence that the date of maximum medical improvement determined by Dr. Leppard was incorrect. We note that it is not clear from the order if this determination of maximum medical improvement made by the DIME physician involved only the 2007 claim or also included the 2003 claim.

However, the ALJ’s order also contains the finding that the primary treating physician Dr. Richman determined the claimant had achieved maximum medical improvement and sustained permanent impairment. Finding § 20 at 19. Dr. Richman placed the claimant at maximum medical improvement on August 27, 2008. Exhibit W at 334.

Page 3

The respondent has asserted and the claimant has not disputed that there were only two medical opinions expressed on the date of maximum medical improvement. These two dates of possible maximum medical improvement were Dr. Richman’s opinion of August 27, 2008 and Dr. Leppard’s opinion of April 17, 2008.

The determination of MMI is now primarily a medical determination Monfort Transp. v. Industrial Claim Appeals Office 942 P.2d 1358 (Colo. App. 1997). The determination of MMI for purposes of terminating temporary disability benefits is governed by § 8-42-107(8)(b), C.R.S. 2009 which provides that the initial determination of maximum medical improvement shall be made by an authorized treating physician. Blue Mesa Forest v. Lopez 928 P.2d 831 (Colo. App. 1996). In case of a DIME, the opinion of the DIME physician concerning maximum medical improvement is presumptively correct and can be overcome only by clear and convincing evidence. Section 8-42-107(8)(b)(III).

We do not view this as a case where the treating physician or the DIME physician have offered ambiguous or conflicting opinions concerning maximum medical improvement which the ALJ must resolve and determine the physician’s true opinion as a matter of fact. Therefore, a remand is not necessary for a determination of MMI regarding the 2003 claim.

Here the only two possible dates of MMI for the 2003 claim are August 27, 2008 or April 17, 2008. Either of these dates would require payment of PTD benefits and PPD benefits at the same time because the ALJ ordered payment of PTD to commence on April 17, 2008. Therefore, the claimant did not become entitled to permanent partial disability benefits prior to the effective date of the permanent total disability award, and she is not entitled to permanent partial disability benefits. In our opinion, the award of PPD benefits is not supported by applicable law and we must set it aside. Section 8-43-301(8) C.R.S. 2009.

IT IS THEREFORE ORDERED that the ALJ’s order dated June 10, 2009 is set aside insofar as it awarded PPD benefits.

IT IS FURTHER ORDERED that the ALJ’s order dated June 10, 2009 is otherwise affirmed.

Page 4

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ Curt Kriksciun

______________________________ Thomas Schrant

Page 5

PATRICIA MARTINEZ, COLORADO SPRINGS, CO, (Claimant).

CITY OF COLORADO SPRINGS, Attn: MS VICTORIA MCCOLM, C/O: MAIL CODE 630, COLORADO SPRINGS, CO, (Employer).

SCHIFF SCHIFF, Attn: SCOTT H SCHIFF, ESQ., PUEBLO, CO, (For Claimant).

DWORKIN, CHAMBERS, WILLIAMS,, Attn: GREGORY K CHAMBERS, ESQ., C/O: YORK, BENSON EVANS, DENVER, CO, (For Respondents).