IN THE MATTER OF THE CLAIM OF REYES ABEYTA, Claimant, v. WW CONSTRUCTION MANAGEMENT, Employer, and BUSINESS INSURANCE COMPANY, Insurer, Respondents.

W.C. No. 4-356-512.Industrial Claim Appeals Office.
May 20, 2004.

FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Coughlin (ALJ) which determined the claimant was not at maximum medical improvement (MMI) and awarded medical benefits. We affirm.

This case has a complex procedural history which is summarized in our Order of Remand dated February 28, 2002. The history discussed in that order is incorporated herein.

On December 24, 2002, the ALJ entered the order under review. The ALJ found that in September 1997, the claimant sustained back and head injuries in a fall from a ladder. The diagnoses included a closed head injury which was classified as a mild traumatic brain injury (MTBI). The ALJ found that on February 14, 2001, the claimant’s authorized treating physician (ATP) placed the claimant at MMI without impairment, but only for the physical (back) components of the industrial injury. However, the ALJ found the ATP did not place the claimant at MMI for the neuropsychological components of the injury. This finding was based on the fact that the ATP referred the claimant for a neuropsychological evaluation shortly after the injury, but none of the neuropsychologist’s recommendations, first made in November 1997, were carried out prior to the date of MMI. The neuropsychologist again recommended additional evaluation of the MTBI in January 2001, but the ATP did not receive these recommendations before placing the claimant at MMI. Moreover, the February 14 MMI report did not discuss any specific diagnoses, and the ATP’s February 14 office notes make no mention of the claimant’s closed head injury and related symptoms, but instead focus on resolution of the claimant’s back problems.

Following the February 14 MMI finding, both the claimant and the respondents requested a DIME (as set forth in our prior order). The DIME proceeded in September 2001 on the respondents’ request. The DIME physician assigned a 20 percent whole person impairment based on 11 percent impairment of the spine, 8 percent impairment for cognitive impairments and 2 percent impairment for mental impairment. The DIME physician’s report did not discuss MMI, but at the hearing the DIME physician testified he believed the claimant was at MMI and any treatment or evaluations were in the nature of maintenance treatment.

In light of these findings, the ALJ concluded the ATP did not place the claimant for all components of the injury, and therefore the DIME process was commenced “prematurely.” (Conclusion of Law 7). Nevertheless, the held that because a DIME was completed, the issues of MMI and impairment were “ripe for determination.” Then, crediting the reports and testimony of the neuropsychologist and an independent medical examination physician called by the claimant, the ALJ found the claimant proved by clear and convincing evidence that the claimant was not at MMI. Further, the ALJ found the claimant proved by “compelling evidence” that he is entitled to additional medical benefits in the form of occupational therapy visits, psychotherapy, and evaluation of ongoing headaches and temporary blindness by a neurologist.

I.
On review, the respondent first contends the ALJ’s finding that the ATP did not place the claimant at MMI for all components of the injury is not supported by substantial evidence in the record. The respondent asserts the overwhelming evidence establishes that the ATP placed the claimant at MMI. We disagree.

Section 8-42-107(8)(b)(I), C.R.S. 2003, provides “an authorized treating physician shall make a determination as to when the injured employee reaches” MMI. A finding of MMI by an ATP is a jurisdictional prerequisite to the applicability of the DIME process. See Aren Design, Inc. v. Becerra, 897 P.2d 902
(Colo.App. 1995). Similarly, a DIME is a jurisdictional prerequisite to the ALJ’s determination of the issue of MMI. Section 8-42-107(8)(b)(II) (III), C.R.S. 2003; Town of Ignaciov. Industrial Claim Appeals Office, 70 P.3d 513 (Colo.App. 2002).

However, an ALJ may determine whether an ATP has placed the claimant at MMI without requiring the claimant to undergo a DIME. Thus, if the ATP issues ambiguous or conflicting reports concerning whether or not the claimant has reached MMI, the ALJ may resolve the issue as a matter of fact by determining the ATP’s true position. Town of Ignacio v. Industrial Claim Appeals Office, supra. Similarly, the question of whether the ATP has issued conflicting or ambiguous opinions on MMI is itself a question of fact. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385, 388 (Colo.App. 2000).

Because the issue is factual in nature, we must uphold the ALJ’s pertinent findings of fact if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. This standard of review requires us to view the evidence in alight most favorable to the prevailing party, and defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117
(Colo.App. 2003).

MMI exists “when any medically determinable physical or mental impairment as a result of injury become stable and when no further treatment is reasonably expected to improve the condition.” Section 8-40-201(11.5), C.R.S. 2003. In a long series of decisions we have interpreted this statute to mean that MMI is not divisible between various components of an injury, and MMI either exists or it does not. This is true because MMI terminates the right to temporary disability benefits and triggers the right to permanent disability benefits. See Nelson v. Fitzgerald’s Casino, W.C. No. 4-374-519 (November 15, 2001); Dowd v. V.F.W. Post 1247 (May 14, 2001); compare Nunnally v. Wal-Mart Stores, Inc., 943 P.2d 26 (Colo.App. 1996). Further, MMI does not exist if diagnostic procedures present a reasonable prospect for revealing treatments which may cure or relieve the effects of the injury. Eby v. Wal-Mart Stores, Inc., W.C. No. 4-350-176
(February 14, 2001), aff’d. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, (Colo.App. No. 01CA0401, February 14, 2002) [citing PDM Molding v. Stanberg, 898 P.2d 542 (Colo.App. 1995) and Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995)]; Hatch v. John H. Harland Co., W.C. No. 4-368-712
(August 11, 2000).

Applying these principles here, substantial evidence supports the ALJ’s finding that the ATP’s February 14, 2001 report was “cursory,” and that the ATP did not intend to place the claimant at MMI for the neuropsychological components of the industrial injury. (Findings of Fact 10, 18). First, although the February 14 report purports to release the claimant from treatment without evidence of medical impairment, it does not expressly mention the term MMI. Moreover, as the ALJ found, the report does not describe any specific diagnoses or discuss what aspects of the claimant’s condition were evaluated by the ATP. Examination of the ATP’s contemporaneous office note discusses only an exacerbation of low back pain and makes no mention whatsoever of the claimant’s ongoing MBTI symptoms, or the fact that the claimant had recently been examined by the same neuropsychologist to whom the ATP referred the claimant in November 1997. Indeed, in February 2001 the ATP had not yet been provided a copy of the neuropsychologist’s January 15, 2001, report. The failure to mention the claimant’s MBTI symptoms is particularly troubling because the claimant had not received any additional evaluation or treatment of the MBTI despite the neuropsychologist’s recommendations in 1997.

The fact that the claimant filed a notice and proposal to select a DIME physician after receiving the February 14 report does not require a different conclusion. Indeed, the very ambiguity of the report, in light of the surrounding circumstances, could lead a prudent claimant to file a notice and proposal in the event it was later found that the report was indeed an ATP’s finding of MMI. Moreover, we disagree that the ALJ “speculated” in concluding that the ATP did not intend to place the claimant at MMI for the neuropsychological component of the injury. To the contrary, we agree with the ALJ that this is a plausible inference which may be drawn from the report itself and the other evidence. The fact that some conflicting evidence and inferences would support a conclusion that the ATP placed the claimant at MMI for all components of the injury affords no basis for appellate relief. Wilson v. Industrial Claim Appeals Office, supra.

It follows that the ALJ had “jurisdiction” to find the ATP did not place the claimant at MMI. Town of Ignacio v. Industrial Claim Appeals Office, supra. Because the ALJ found the claimant did not place the claimant at MMI, the DIME procedure was prematurely conducted, and the ALJ did not have jurisdiction to consider whether the DIME physician’s opinion on MMI was overcome by and clear and convincing evidence. Rather, the parties and the ALJ remained bound by the factual determination that no ATP has yet placed the claimant at MMI for all aspects of the industrial injury. Aren Design, Inc. v. Becerra, supra. However, the ALJ’s consideration of this question constitutes, at most, harmless error because the evidence supports the ALJ’s finding that no ATP has placed the claimant at MMI. Similarly, we need not consider the claimant’s arguments concerning the DIME process.

II.
The respondents dispute Conclusion of Law 9 insofar as discusses temporary disability benefits. However, the order did not award any temporary disability benefits. Consequently, the order is not final and reviewable with respect to this issue. Section 8-43-301(2), C.R.S. 2003. Thus, the effect, if any, of Conclusion of Law 9 is not currently subject to review.

IT IS THEREFORE ORDERED that the ALJ’s order dated December 24, 2002, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

___________________ David Cain
___________________ Kathy E. Dean

Reyes Abeyta, Denver, CO, WW Construction Management, Inc., Denver, CO, Business Insurance Company, c/o Michael Kramish, Risk Enterprise Management, Englewood, CO, Chris L. Ingold, Esq., Denver, CO, (For Claimant).

Harvey D. Flewelling, Esq., Denver, CO, (For Respondents).