W.C. No. 4-729-226.Industrial Claim Appeals Office.
March 11, 2009.
ORDER
The respondents seek review of an order of Administrative Law Judge Walsh (ALJ) dated August 14, 2008, that denied and dismissed the respondents’ Petition to Modify, Terminate, or Suspend Compensation and awarded attorney fees against the respondents. We affirm the order in part, set aside in part, and remand for further proceedings.
The claimant was injured in an admitted work-related incident on July 11, 2007. The respondents arranged for an independent medical examination (IME). The IME physician opined that the work related injury the claimant sustained on July 11, 2007 was an acute lumbar strain. Exhibit E at 7. According to the IME physician, the claimant reached maximum medical improvement (MMI) for acute lumbar strain on October 3, 2007 and there was no permanent impairment and no medical maintenance indicated. Exhibit E at 7. The IME physician further opined that it could not be established that the claimant temporarily or permanently aggravated the preexisting lumbar degenerative disk disease. Exhibit E at 8. The respondents filed a Petition to Modify, Terminate, or Suspend Compensation (Petition) on March 20, 2008 contending the claimant had reached MMI and was receiving medical care for preexisting conditions not related to the July 11, 2007 industrial injury. The authorized treating physician (ATP) later opined that the claimant reached MMI for the work-related incident on April 28, 2008. Exhibit 7 at 18.
The claimant argued against the Petition contending that the ALJ lacked jurisdiction to terminate the claimant’s benefits because the ATP had, at the time the petition was filed, not placed the claimant at MMI. The claimant further argued that the
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ALJ lacked authority to make a determination of MMI in the absence of a Division-sponsored independent medical examination (DIME). The claimant requested attorney fees pursuant to § 8-43-211(2)(d), C.R.S. 2008 contending that the respondents had requested and set a hearing on issues which were not ripe for adjudication.
The ALJ noted that MMI is determined in the first instance by an ATP. The ALJ, citing Pacheco v. Patti’s Inc., W. C. No. 4-421-759 (May 3, 2004), concluded that he lacked jurisdiction to determine whether a claimant was at MMI because the ATP’s finding of MMI was binding unless and until the claimant undergoes a DIME. Here, at the time of the filing of the Petition the ATP had not placed the claimant at MMI. The ALJ determined that because there is no mechanism in the Workers’ Compensation Act of Colorado to terminate temporary disability benefits based upon the finding of MMI by an IME, it followed that the issues raised in the respondents’ application for hearing were not ripe and found the respondents liable for the claimant’s reasonable attorney fees and costs.
I.
On appeal, the respondents first contend that the ALJ erred in failing to allow them to challenge injury causation for medical benefits prior to an injured worker being placed at MMI by an ATP. Here, the ALJ was persuaded that he lacked jurisdiction to terminate the claimant’s benefits because the ATP had not yet placed the claimant at MMI and the ALJ lacked authority to make a determination of MMI in the absence of a DIME. The ALJ determined that the respondents had failed to establish that he had authority under the Workers’ Compensation Act to terminate the claimant’s compensation based upon the opinion of an IME that the claimant had reached MMI.
We recognize, as did the ALJ, that in Pacheco v. Patti’s Inc. the Panel has previously stated that MMI is determined, in the first instance, by “an authorized treating physician.” Section 8-42-107(8)(b)(II). An ATP’s finding of MMI is binding on the parties and the ALJ unless and until the claimant undergoes a DIME. Section 8-42-107(8)(b)(III), C.R.S. 2008 (hearing on MMI not permitted until DIME physician’s finding is filed with the division). Thus, an ALJ lacks jurisdiction to resolve the issue of MMI until the finding of the DIME physician is filed.
However, we do not understand the respondents to have simply attempted to terminate temporary disability benefits based upon an opinion expressed by their IME on the issue of MMI. The respondents contended in their Petition and argued at hearing that the claimant was receiving medical care for a condition not related to the July 11, 2007. Exhibit C. Counsel for the respondents at the inception of the hearing argued that they were not liable for further medical benefits although they had filed an admission of liability, because what the claimant was treated for had nothing to do with her July 11,
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2007 injury. Tr. at 7-9. The respondents noted that they were raising the issue of causation. The respondents argued that the burden to prove a causal nexus between the admitted industrial incident and the need for medical care falls to the claimant. Tr. at 16. The respondents in their Application for Hearing and during the hearing cited to Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337, 1339 (Colo.App. 1997). Tr. at 29.
In Snyder v. Industrial Claim Appeals Office, the court held that “in a dispute over medical benefits after the filing of a general admission of liability, an employer can assert, based on subsequent medical reports, that the claimant did not establish the threshold requirement of a direct causal relationship between the on-the-job injury and the need for medical treatment.” Snyder, 942 P.2d at 1339. It is well established that a general admission of liability for medical benefits does not render the respondents liable for all subsequent treatment rendered to the claimant. Rakestraw v. American Medical Response, W. C. No. 4-384-349 (October 3, 2005). To the contrary, the respondents retain the right to dispute liability for specific medical treatment on grounds the treatment is not authorized or reasonably necessary to cure or relieve the effects of the industrial injury. See Snyder v. Industrial Claim Appeals Office, supra; Williams v. Industrial Commission, 723 P.2d 749 (Colo.App. 1986). This principle recognizes that even though an admission is filed the claimant bears the burden of proof to establish the right to specific medical benefits, and the mere admission that an injury occurred and treatment is needed cannot be construed as a concession that all conditions and treatments which occur after the injury were caused by the injury. Cf. HLJ Management Group, Inc. v. Kim, 804 P.2d 250 (Colo.App. 1990) (general admission does not vitiate respondents right to litigate disputed issues on a prospective basis).
In our view, the ALJ’s determination that he lacked jurisdiction to determine the respondents’ liability for current medical treatment based on whether the need for that treatment was caused by the industrial injury indicates a misapprehension of the law. Therefore, a remand is necessary for the ALJ to make a determination if the disputed medical treatment is reasonably necessary to cure or relieve the effects of the industrial injury.
II.
The respondents next contend that the ALJ erred in failing to allow them to challenge injury causation for temporary disability benefits prior to an injured worker being placed at MMI by an ATP. The ALJ determined that he lacked authority under the Workers’ Compensation Act to terminate the claimant’s compensation based upon the opinion of an IME that the claimant had reached MMI. As we understand the respondents’ argument, they contended at the hearing that the temporary disability benefits received after October 3, 2007 were not causally related to the July 11, 2007 injury.
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At the hearing, the respondents contended that the claimant had long-standing chronic low back problems, which resulted in multiple claims for compensation. The respondents admit that on July 12, 2007, the claimant sustained a new work-related injury to her low back and, therefore, they filed a general admission of liability admitting that the claimant had sustained a work-related injury in the form of an aggravation of a preexisting problem. The respondents cite the opinion of their IME physician who stated that any disability the claimant was suffering was not the result of her July 11, 2007 exacerbation, but due to chronic recurrent problems. The respondents argued that the July 11, 2007 aggravation had resolved by October 3, 2007. The October 3, 2007 date was based upon the opinion of the respondent’s IME physician that the claimant had reached MMI as of that date. Tr. at 6-7.
In our view the contention that the ALJ should make a causal determination that the July 12, 2007 aggravation was only temporary is, in reality, a request that the ALJ make a constructive finding of MMI, which is a violation of § 8-42-107(8)(b), C.R.S. 2008. See Lissauer v. Arapahoe House, W.C. No. 4-208-1212 (November 26, 1997), aff’d, Arapahoe House v. Industrial Claim Appeals Office, (Colo.App. No. 97CA2132, July 9, 1998) (not selected for publication) (finding that temporary aggravation ended was an implicit finding of MMI and was impermissible).
Section 8-42-105(3)(a)-(d) C.R.S. 2008 provides that TTD benefits shall continue until the first occurrence of any one of the following: (1) The employee reaches maximum medical improvement; (2) The employee returns to regular or modified employment; (3) The attending physician gives the employee a written release to return to regular employment; or (4) The attending physician gives the employee a written release to return to modified employment, such employment is offered to the employee in writing, and the employee fails to begin such employment.
Here there is no contention by the respondents that any of the last three provisions for termination of TTD benefits under § 8-42-105(3) would apply. Thus only the issue of MMI remains as a basis for terminating TTD benefits. At the hearing, the respondents argued the acute lumbar strain had resolved by October 2007 and that the IME physician stated that the claimant had reached MMI as of October 3, 2007 for any effect or consequences of the July 11, 2007 injury. Tr. at 6-7. Although couched in terms of causation, the respondents’ argument that the July 11, 2007 aggravation had resolved by October 3, 2007 and TTD benefits should terminate as of that date is based on the opinion of the IME physician that the claimant had reached MMI.
Section 8-40-201(11.5), C.R.S. 2008 defines MMI as a point in time when any medically determinable physical or mental impairment “as a result of injury” has become
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stable and when no further treatment is reasonably expected to improve the condition. Section 8-42-107(8)(b) provides that the initial determination of MMI is to be made by the authorized treating physician, and if either party disputes that determination the claimant must undergo a DIME. Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996). The statute also provides that an ALJ may not hold a hearing on the issue of MMI until the DIME physician’s report has been completed See Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995).
Under § 8-42-107(8)(b), once a claimant has proved a causal connection between her temporary disability and the industrial injury, the duration of that causal relationship is a determination for the treating physician. Thus, the causal connection is presumed to continue until no further medical treatment is reasonably expected to improve the condition. See Lissauer v. Arapahoe House, supra.
Here, the respondents requested that the ALJ make a determination that the claimant’s temporary aggravation of the claimant’s preexisting condition lasted only until October 3, 2007. This request would require the ALJ to find that the compensable component of the claimant’s back condition was stable as of October 3, 2007, which would amount to a determination of MMI. Therefore, in our view the ALJ correctly determined that he had no authority to terminate the claimant’s TTD benefits based upon the IME’s finding of MMI.
The respondents rely heavily on Snyder v. Indus. Claim Appeals Office. However, in Snyder, the issue before the court was whether TTD should be terminated as of the date of the hearing or whether they might be terminated earlier. An issue not before the court was whether the opinion by an IME physician as to the date of MMI can serve to terminate TTD benefits. Therefore, in our opinion Snyder is not controlling on the issue of TTD benefits in this matter.
III.
The respondents finally contend that the ALJ erred in determining that their application for hearing requesting termination of medical and temporary disability benefits raised issues not ripe for hearing prior to the injured worker being placed at MMI. In our opinion, based upon subsequent events, this issue is moot.
Section 8-43-211(1)(d) C.R.S. provides as follows: “If any person requests a hearing or files a notice to set a hearing on issues which are not ripe for adjudication at the time such request or filing is made, such person shall be assessed the reasonable attorney fees and costs of the opposing party in preparing for such hearing or setting.” Here, the ALJ concluded that the respondents were liable for claimant’s reasonable
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attorney fees and costs under § 8-43-211(1)(d). The ALJ ordered the claimant to prepare an affidavit of reasonable fees and costs and submit it to the respondents.
Obviously, given our remand on the issue of disputed medical treatment, in our view that issue was ripe for determination. In addition, the record before us contains “Claimant’s Counsel’s Partial Waiver of Attorney Fees” in which claimant’s counsel states that he has decided not to make a claim for attorney fees related to the representation of the claimant as of the date of his waiver. The date of the waiver was September 3, 2008, a date after the August 14, 2008 order here under consideration. The claimant’s counsel waived any attorney fees associated with representing the claimant at the hearing held before the ALJ on July 25, 2008. In his waiver, claimant’s counsel states that he reserves the right to request attorney fees if the respondents proceed with the appeal. The waiver indicates that any such request for fees would be made at the time any answer brief was filed by the claimant and states that the request for fees would be limited to time spent working on the appeal. We note that no brief was filed by the claimant and no request for fees was filed regarding time spent working on the appeal. Therefore, the issue of attorney fees is moot.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 14, 2008 is set aside insofar as it concluded that the ALJ lacked jurisdiction to determine the respondents’ liability for medical treatment as caused by the industrial injury. The matter is remanded for entry of a new order on this issue in accordance with the views expressed herein on the issue of disputed medical benefits. The issue of attorney fees has been waived and is moot.
IT IS THEREFORE FURTHER ORDERED that the ALJ’s order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D.Baird
____________________________________ Thomas Schrant
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ELAINE BALERIO, 1035 PALMER DRIVE, PUEBLO, CO, (Claimant), SEDGWICK CMS, Attn: MS SHARMIE JENSEN, LEXINGTON, KY, (Insurer), KONCILJA
KONCILJA, PC, Attn: LAWRENCE SAUNDERS, ESQ./JAMES R KONCILJA, ESQ., PUEBLO, CO, (For Claimant).
THOMAS POLLART MILLER LLC, Attn: BENJAMIN P KRAMER, ESQ./DOUGLAS THOMAS, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).
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