IN THE MATTER OF THE CLAIM OF GENOA ADAMS, Claimant, v. MANPOWER, Employer, and RSKCo/CNA Insurance, Insurer, Respondents.

W.C. No. 4-389-466Industrial Claim Appeals Office.
November 26, 2001

FINAL ORDER
The respondents seek review of a in order of Administrative Law Judge Henk (ALJ Henk) which granted the claimant’s motion to strike a notice and proposal to select a Division independent medical examination (DIME) physician, and an order of Administrative Law Judge Wheelock (ALJ Wheelock) which determined the claimant’s condition worsened and awarded additional temporary disability and medical benefits. The respondents contend ALJ Wheelock lacked jurisdiction to award any benefits prior to issuance of a DIME physician’s opinion concerning MMI. We affirm.

The claimant sustained a compensable back injury on July 13, 1998. The claimant’s initial treating physician, Dr. Tyler, placed the claimant at maximum medical improvement (MMI) in February 1999, and on May 28, 1999 issued a medical impairment rating of 12 percent of the whole person. The respondents filed a final admission of liability which admitted for permanent disability benefits in accordance with this rating.

On January 20, 2000, Dr. Tyler issued a report stating the claimant had “digressed from an emotional standpoint” and referred her to the Pikes Peak Pain Program (Pikes Peak) for evaluation. The claimant was examined at Pikes Peak in February 2000, and began a course of treatment with Dr. Reece. This treatment included medication, electrical stimulation, and a recommendation of psychological counseling to treat depression. On June 18, 2000, Dr. Reece issued a report stating the claimant’s physical functional capacity was improving under his treatment and the claimant was not at MMI. On July 17, 2000, Dr. Tyler issued a report opining the claimant was “no longer at MMI when she was referred to the pain management program,” stating it would be appropriate for Dr. Reece to assume the claimant’s primary care, and deferring to Dr. Reece’s judgment concerning the date of MMI.

Thereafter, the claimant underwent an IME at the respondents’ request. On August 22, 2000, the IME physician, Dr. McCranie, issued an opinion stating the claimant had remained at MMI since May 1999 regardless of whether she was a candidate for a pain program. Dr. McCranie stated it did “not appear that there have been any changes in [the claimant’s] condition to make me think she was not at MMI”, and the claimant’s “participation in a pain program should be done from a maintenance perspective in order to decrease the amount of maintenance medications that she requires.”

In July 2000, the claimant applied for a hearing seeking additional medical benefits and temporary total disability benefits, and the hearing was scheduled for November 13, 2000. On September 18, 2000, the respondents filed a Notice and Proposal to Select An Independent Medical Examiner, requesting a DIME on the issue of MMI pursuant to §8-42-107(8)(b)(II), C.R.S. 2001. The claimant then filed a motion to strike the request for a DIME, arguing the respondents were not entitled to a DIME on the issue of MMI because they had filed a final admission of liability, and because § 8-42-107(8)(b)(II) does not apply where, as here, the claimant alleges a worsening of condition. The respondents replied that Dr. Reece opined the claimant was not at MMI, and §8-42-107(8)(b)(III), C.R.S. 2001, precludes a determination of the claimant’s entitlement to additional temporary disability and medical benefits designed to improve her condition until the requested DIME is performed.

On November 9, 2000, ALJ Henk granted the claimant’s motion to strike the request for a DIME, and the matter proceeded to hearing before ALJ Wheelock on November 13, 2000. At the hearing, the claimant’s counsel clarified the claimant was seeking temporary disability and medical benefits commencing January 20, 2000, the date Dr. Tyler referred the claimant to Pikes Peak. On December 13, 2000, ALJ Wheelock issued an order finding the claimant’s condition worsened after the original date of MMI, and the claimant “is not at MMI, and has not been at MMI since January 20, 2000.” Further, crediting the opinions of Dr. Reece, the ALJ awarded temporary disability benefits commencing January 20 and continuing, and additional medical benefits.

On review, the respondents contend they were entitled to a DIME on the issue of MMI based on Dr. Reece’s June 18, 2000, determination the claimant had not reached MMI. The respondents rely on §8-42-107(8)(b)(II), as authority for their position, and assert they met each of the four requirements to request a DIME set forth in the statute. The claimant reiterates her prior arguments that the portion of the statute on which the respondents rely does not apply where the claimant seeks additional benefits after her condition worsens, and because the respondents filed a final admission of liability. We assume, without deciding, that the statute applies to determining MMI after a worsened condition. However, we conclude the respondents failed to satisfy the condition established by § 8-42-107(8)(b)(II)(D), C.R.S. 2001.

Section 8-42-107(8)(b)(II) provides as follows:
If either party disputes a determination by an authorized treating physician on the question of whether the injured worker has or has not reached maximum medical improvement, an independent medical examiner may be selected in accordance with § 8-42-107.2; except that, if an authorized treating physician has not determined that the employee has reached maximum medical improvement, the employer or insurer may only request the selection of an independent medical examiner if all of the following conditions are met:
(A) At least eighteen months have passed since the date of injury;
(B) A party has requested in writing that an authorized treating physician determine whether the employee has reached maximum medical improvement;
(C) Such authorized treating physician has not determined that the employee has reached maximum medical improvement; and
(D) A physician other than the authorized treating physician has determined that the employee has reached maximum medical improvement.

Section 8-42-107(8)(b)(III), C.R.S. 2001, provides that a determination of the DIME physician concerning MMI is binding unless overcome by clear and convincing evidence, and that a hearing on MMI “shall not take place until the finding of the independent medical examiner has been filed with the division.” If the statute applies, it has been held an ALJ lacks jurisdiction to determine MMI until such time as the DIME physician’s finding has been filed. Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995).

We assume, for the sake of argument, that § 8-42-107(8)(b)(II) applies in situations such as this where the claimant has been placed at MMI following the injury, she subsequently experiences a worsened condition, but no authorized treating physician has placed the claimant at MMI for the worsened condition. Thus, we assume the statute entitles the respondents to a DIME to review Dr. Reece’s “determination” that the claimant “has not reached” MMI for the worsened condition, provided the four statutory conditions are satisfied. However, under the facts of this case, we conclude the respondents failed to satisfy the fourth requirement that a physician “other than such authorized treating physician has determined that the employee has reached maximum medical improvement.” (Emphasis added).

Under the statutory scheme established by § 8-42-107(8)(b), an authorized treating physician makes the initial determination of when the claimant has reached MMI. A party which disputes the authorized treating physician’s determination of MMI must request a DIME, and the opinion of the DIME physician has a presumptive effect unless overcome by clear and convincing evidence. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Further, an ALJ may not determine the issue of MMI unless and until the DIME has been completed Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996).

However, initial determinations of compensability are not subject to the DIME procedure. Rather, the question of whether the claimant sustained a compensable injury in the first instance, and proved disability and the need for treatment, are questions of fact for determination by the ALJ. See Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000); Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). In light of these principles, we have held that where the claimant seeks additional temporary disability benefits or medical benefits to improve her condition after having attained MMI, she may prove a worsening of condition without undergoing a DIME pursuant to § 8-42-107(8)(b). This is true because proof of a worsened condition after MMI does not constitute a “constructive challenge” to the initial determination of MMI. See Rhodes v. Pyramid Enterprises, Inc., W.C. No. 4-360-050 (September 16, 1999).

Of course, § 8-42-107(8)(b)(II) entitles respondents to seek a DIME to review a treating physician’s “determination” that the claiman has not reached MMI. This provision of the statute was enacted in 1996 following the decision in Aren Design, Inc. v. Becerra, 897 P.2d 902
(Colo.App. 1995). 1996 Colo. Sess. Laws, ch. 112 at 456-457. In Aren Design, the court interpreted the predecessor to § 8-42-107(8)(b) as prohibiting the respondents from seeking a DIME on the issue of MMI where the treating physician had not yet placed the claimant at MMI. The result was that the respondents lacked any effective means to review a treating physician’s refusal to place the claimant at MMI except medical utilization review. In an apparent effort to modify this state of affairs, the General Assembly enacted the current statutory scheme.

However, the statute designed by the legislature contains four limitations on the respondents’ right to obtain a DIME concerning the treating physician’s refusal to place the claimant at MMI. The last of these limitations, that a physician other than the treating physician has determined the claimant “has reached” MMI, requires the respondents to produce a physician’s opinion that the claimant’s condition has stabilized since the injury and no further treatment is reasonably expected to improve the condition. Section 8-40-201 (11.5), C.R.S. 2001 (defining MMI). Presumably, this requirement provides evidence of a reasonable prospect that the DIME physician will find the claimant has reached MMI and avoids frivolous and time-consuming reviews of treatment where no such prospect exists.

Applying these principles here, we conclude that, contrary to the respondents’ assertion, they have not satisfied the requirement established by § 8-42-107(8)(b)(II) (D). The respondents argue that Dr. McCranie’s August 22, 2000 opinion satisfies the statute. (Respondents’ Brief at 4-5). However, Dr. McCranie’s report does not contain an opinion that the claimant “has reached” MMI after the worsening of condition in January 2000. Rather, Dr. McCranie’s report constitutes an opinion that the claimant’s condition did not worsen after she was placed at MMI in 1999 and, therefore, the claimant remained at MMI following the initial determination of MMI. Thus, Dr. McCranie’s opinion concerns whether or not the claimant could prove a compensable worsening, not whether the claimant’s condition stabilized after the worsening and she has subsequently reached MMI.

As we have pointed out, the question of whether the claimant’s condition worsened so as to entitle her to additional benefits was a question of fact not subject to the DIME provisions of §8-42-107(8)(b). Under these facts, we hold the respondents impermissibly seek to use the DIME procedures as a method of disputing the ALJ’s finding that the claimant’s condition worsened, not as a method of challenging Dr. Reece’s finding that the claimant had not reached MMI on June 18, 2000. Thus, the respondents failed to present a physician’s opinion that the claimant “has reached” MMI within the meaning of the statute.

IT IS THEREFORE ORDERED that the order of ALJ Henk dated November 9, 2000, and the order of ALJ Wheelock dated December 13, 2000, are affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ David Cain
____________________________________ Robert M. Socolofsky

NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.

Copies of this decision were mailed November 26, 2001 to the following parties:

Genoa Adams, 3285 Leoti Dr., Colorado Springs, CO 80922

Manpower, 1331 17th St., #1104, Denver, CO 80202-1561

Sue Silverman, RSKCo/CNA Insurance, P. O. Box 5408, Denver, CO 80217

Patrick C. H. Spencer, II, Esq., 403 S. Tejon St., Colorado Springs, CO 80903 (For Claimant)

Gregory K. Chambers, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondents)

BY: A. Pendroy