W.C. No. 4-213-664Industrial Claim Appeals Office.
October 6, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Wells (ALJ), which terminated temporary total disability benefits and awarded permanent partial disability benefits. We reverse.
The claimant suffered a compensable back injury in April 1994. The ALJ found that the claimant subsequently developed psychological impairment secondary to the back injury. The back injury precluded the claimant from performing his regular employment and the respondents admitted liability for temporary total disability benefits commencing April 26, 1994.
In January 1995, Dr. Griffis, the claimant’s authorized treating physician opined that the claimant was at maximum medical improvement (MMI), and suffered a fifteen percent whole person impairment. Dr. Griffis also stated that the claimant was having difficulty dealing with his back pain, and referred him for psychological counseling. However, there is no finding or assertion that Dr. Griffis released the claimant to return to his pre-injury employment.
On January 17, 1995, the claimant was seen by a licensed counselor, Dr. Cosel. Dr. Cosel diagnosed the claimant with an “adjustment disorder” with mixed disturbances of emotion and conduct, and recommended a course of psychological counseling. The claimant attended counseling until March 31, 1995. At that time, the claimant believed he was able to handle his emotional difficulties without further assistance.
On March 27, 1995, the respondents requested a Division-sponsored independent medical examination (IME) on the issues of MMI and impairment. The IME physician opined that the claimant reached MMI and sustained a fourteen percent whole person impairment due to his back condition. Based on this report, the respondents filed a final admission of liability terminating temporary total disability on April 4, 1995 (the last day the claimant was examined by Dr. Griffis). The respondents also admitted liability for permanent partial disability benefits based on the IME physician’s medical impairment rating.
At the respondents’ request, the claimant was also examined by a psychiatrist on July 5, 1995. The psychiatrist opined that the claimant reached MMI for his psychological problems no later than March 31, 1995, and had a permanent psychiatric impairment of one percent of the whole person.
In May 1996, the claimant returned to Dr. Cosel, who was by then a licensed psychologist. The claimant has continued to treat with Dr. Cosel since May 1996. In a report dated August 22, 1996, Dr. Cosel indicated that he did not intend to release the claimant “until he has been placed in and maintains new employment and/or enrolled at” a community college. However, the ALJ found that at no time during his treatment did Dr. Cosel place any “restrictions” on the claimant’s work activities.
The claimant sought temporary total disability benefits subsequent to April 4, 1995, but the ALJ denied the request. The ALJ found that the claimant had two “primary treating physicians” for his injuries. Specifically, Dr. Griffis provided treatment for the claimant’s “physical problems,” and Dr. Cosel provided treatment for the claimant’s “emotional problems.”
The ALJ then determined that the IME physician’s opinions concerning MMI and impairment were overcome by clear and convincing evidence. In support of this conclusion, the ALJ found that the IME physician failed to address “the issue of potential permanent impairment as a result of psychological or psychiatric problems secondary to the work-related injury.” Having determined that the IME physician’s opinions were overcome, the ALJ concluded that he was free to address “both the issues of maximum medical improvement and permanent partial disability based on the overall evidence contained in the record.”
Concerning the entitlement to temporary total disability benefits after April 4, 1995, the ALJ determined that the claimant reached MMI from his “physical injuries” on April 4, 1995, and reached MMI for his “overall condition” including the psychological problems on July 5, 1995. Further, the ALJ concluded that the claimant was not entitled to temporary total disability benefits from April 4 to July 5, 1995 because he not under any psychological restrictions during that period.
The ALJ also awarded permanent partial disability benefits based on a seventeen and one-half percent whole person impairment. In this regard, the ALJ adopted the IME physician’s rating of the claimant’s physical impairment. The ALJ also found that the claimant sustained a three and one-half percent impairment as a result of the psychiatric problems.
On review, the claimant contends that the ALJ erred in denying continuing temporary total disability benefits after April 4, 1995. The claimant argues that once his right to temporary total disability benefits was established, the respondents were not entitled to terminate benefits until the occurrence of one of the circumstances enumerated in §8-42-105(3), C.R.S. 1997. The claimant reasons that none of these circumstances had occurred by April 4 because he was not at MMI for the psychological component of the injury, and remained restricted from returning to regular employment due to the physical effects of the injury. We agree.
Under the provisions currently codified at §8-42-107(8)(b)(I), C.R.S. 1997, “an authorized treating physician” shall make a determination as to when the injured employee reaches MMI as defined in § 8-40-201(11.5). [1996 amendments to § 8-42-107(8)(b) apply to “determinations” of MMI on or after July 1, 1996; 1996 Colo. Sess. Laws, ch. 112 at 457]. The determination of MMI by “an authorized treating physician” is a jurisdictional prerequisite to conduct of an IME on the issue of MMI under § 8-42-107(8)(b)(II), except where the insurer makes a request under the special circumstances set forth in subsection (b)(II). See Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996); Aren Design, Inc. v. Becerra, 897 P.2d 902 (Colo.App. 1995).
Once “an authorized treating physician” places the claimant at MMI, the IME procedure is the only method of reviewing the physician’s determination of MMI. However, an IME is not a prerequisite to an ALJ’s resolution of factual disputes concerning who is an authorized treating physician, whether that physician has made a determination of MMI, or the resolution of conflicting and ambiguous opinions concerning whether the claimant has reached MMI. Blue Mesa Forest v. Lopez, supra.
Here, the ALJ found as a matter of fact that the claimant had not reached MMI for his entire impairment as of April 4, 1995. Instead, the ALJ found that the physician who treated the claimant’s physical condition ascertained the existence of a psychological problem related to the physical injury, and referred the claimant for further treatment of that problem. Moreover, the ALJ found that Dr. Griffis relinquished control of the claimant’s psychiatric treatment to Dr. Cosel, and Dr. Cosel has not placed the claimant at MMI.
Under these circumstances, the ALJ effectively found that none of the authorized providers has ever placed the claimant at MMI for both the physical and psychological components of the industrial injury. Blue Mesa Forest v. Lopez, supra. It follows that the IME provisions of § 8-42-107(8)(b) have not been triggered, and the respondents do not contend that the special circumstances mentioned in § 8-42-107(8)(b)(II) apply. Thus, the ALJ lacked jurisdiction to determine the issue of MMI, and the opinion of the IME physician on MMI was of no force and effect. Aren Design, Inc. v. Becerra, supra.
Consequently, the ALJ erred in purporting to resolve the issue of MMI based on the record as a whole.
Regardless of the fact that the IME procedure is inapplicable, the respondents argue that the ALJ correctly determined that the claimant was not temporarily disabled after April 4, 1995 because there were no “psychiatric restrictions.” This argument is based on the premise that by April 4 the claimant reached MMI for the disabling physical injury, and was not under any restrictions as a result of the mental impairment. We reject the contention that the disabling effects of an industrial injury may be divided so as to deny temporary disability benefits.
In order to establish entitlement to temporary disability benefits, the claimant must establish that he has sustained an actual loss of wages because of the injury. He must also establish that the injury “caused” disability, that he left work as a result of the injury, and that the disability lasted at least three days. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). If the claimant establishes these criteria, temporary disability benefits must continue until the respondents establish the existence of one of the four circumstances set forth in § 8-42-105(3)(a)-(d). PDM Molding, Inc. v. Stanberg, supra.
Although § 8-42-105(3)(a) terminates temporary disability benefits when the claimant reaches MMI, we do not believe MMI may be parceled out and divided among various components of the industrial injury. Powell v. L D Electric, W.C. No. 4-150-716 (March 21, 1997). MMI is defined by § 8-40-201(11.5), C.R.S. 1997. This statute defines MMI as the “point in time when any medically determinable physical or mental impairment as a result of injury has become stable and when no further treatment is reasonably expected to improve the condition.”
Here, the ALJ determined as a matter of fact that none of the authorized providers had placed the claimant at MMI fo all injury-related impairments on April 4. Therefore, the claimant’s medical restrictions for the physical effects of the injury continued to cause a temporary wage loss after April 4. See Ballinger v. City of Colorado Springs, W.C. No. 4-154-631 (April 12, 1996) (where claim was reopened based on worsened condition, claimant was entitled to additional temporary disability benefits even though he could not establish “additional restrictions” due to the worsened condition). Moreover, there is no finding or assertion that any of the other statutory circumstances justifying termination of temporary total disability benefits has occurred. Consequently, the ALJ erred in terminating the claimant’s temporary total disability benefits.
We also note that § 8-42-107(8)(c), C.R.S. 1997, provides that the adjudication of medical impairment benefits must await a determination of MMI “pursuant to paragraph (b) of this subsection (8).” This is true because the right to permanent partial disability benefits does not come into existence or vest as an enforceable right until MMI is reached. Nunnally v. Wal-Mart Stores, Inc., ___ P.2d ___ (Colo.App. No. 96CA0509, October 24, 1996). Moreover, medical impairment benefits commence on the date of MMI. Section 8-42-107(8)(d), C.R.S. 1997; Monfort Transportation v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 96CA2275, May 29, 1997). Thus, the medical determination of MMI is a prerequisite to the calculation of medical impairment benefits under the statute. Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995).
The ALJ’s interpretation of the law could defeat the statutory scheme by creating a gap in benefits. A claimant might be sustaining a wage loss due to permanent physical restrictions, but still short of overall MMI due to psychological problems. If the ALJ’s theory were correct, the claimant would not be entitled to temporary or permanent disability benefits after the physical condition became stable, but before he reached MMI for the psychological condition. Interpreting the statute so as to permit such a gap in benefits is inconsistent with the underlying purposes of the Act. See Monfort Transportation v. Industrial Claim Appeals Office, supra.
It follows that we agree with the claimant’s second argument that the ALJ erred in assessing medical impairment benefits prior to MMI. As we have held, the calculation of medical impairment benefits must await the legal determination that the claimant reached MMI. Section 8-42-107(8)(c).
IT IS THEREFORE ORDERED that the ALJ’s order dated November 25, 1996, is reversed insofar as it denied temporary total disability benefits subsequent to April 4, 1995. The claimant is entitled to ongoing temporary total disability benefits until terminated in accordance with law.
IT IS FURTHER ORDERED that the ALJ’s order is reversed insofar as it determined that the claimant sustained medical impairment based on a disability of seventeen and one-half percent as a whole person. The issue of permanent disability benefits shall remain open for future determination.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify orvacate the Order is commenced in the Colorado Court of Appeals, 2East 14th Avenue, Denver, Colorado 80203, by filing a petition toreview with the court, with service of a copy of the petitionupon the Industrial Claim Appeals Office and all other parties,within twenty (20) days after the date the Order was mailed,pursuant to §§ 8-43-301(10) and 307, C. R. S. 1997.
Copies of this decision were mailed October 6, 1997 to the following parties:
Harry D. Bernard, III, 3341 No. El Paso Place, #1, Colorado Springs, CO 80907
Mari Beth Utke, Deluxe Corporation, P.O. Box 64399, St. Paul, MN 55164-0399
Karen B. Parker, The Travelers Companies, P.O. Box 173762, Denver, CO 80217-3762
William A. Alexander, Jr., Esq., 3608 Galley Road, Colorado Springs, CO 80909 (For the Claimant)
Lawrence D. Blackman, Esq. John R. Parsons, Esq., 1515 Arapahoe St., Tower 3, Ste. 600, Denver, CO 80202 (For the Respondents)
By: __________________________________________________