W.C. No. 4-211-540Industrial Claim Appeals Office.
January 10, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Wells (ALJ), insofar as it denied her claim for temporary disability benefits subsequent to July 29, 1994. We affirm.
The ALJ found that the claimant sustained compensable upper extremity injuries in February 1993. The claimant was treated by Dr. Joshi and Dr. Royce, although the ALJ found that Dr. Joshi was the treating physician who provided the primary care. Both Dr. Royce and Dr. Joshi agreed that the claimant reached maximum medical improvement (MMI) by July 29, 1994.
Thereafter, the claimant sought to return to work under the permanent restrictions imposed by Dr. Joshi. However, the claimant was laid off on August 5, 1994 as a result of an overall reduction in force.
On October 13, 1994, the claimant was again examined by Dr. Royce due to continuing pain. Dr. Royce referred the claimant to her family physician, Dr. Zimmer, who in turn referred the claimant to Dr. Cohen for psychological counseling. Dr. Cohen examined and treated the claimant on four occasions in October 1994. However, on October 28, Dr. Cohen reported that he talked with the claimant “about the fact that we would go to a p.r.n. schedule rather than weekly sessions.”
Under these circumstances, the ALJ found that the claimant was entitled to temporary total disability benefits through July 29, 1994 when Dr. Joshi found that the claimant reached MMI. The ALJ also found that the claimant “failed to sustain her burden of proof” to establish entitlement to temporary disability benefits after July 29. Specifically, the ALJ stated that “Dr. Cohen’s records make no mention that Claimant was released from work on account of the psychological treatment.”
On review, the claimant contends that the ALJ improperly terminated temporary disability benefits on July 29, prior to the time the claimant reached MMI for the “psychological component” of the industrial injury. She reasons that, because Dr. Cohen was an “authorized” treating physician for her psychological problems, it was inappropriate to terminate benefits until such time as Dr. Cohen opined that the claimant reached MMI. As a corollary to this argument, the claimant reasons that the ALJ improperly shifted the burden of proof to the claimant because, once she established an entitlement to temporary disability benefits, the burden shifted to the respondents to prove conditions justifying termination of her benefits. We reject these arguments.
Under § 8-42-105(3)(a), C.R.S. (1995 Cum. Supp.), temporary disability benefits continue until the claimant reaches MMI. Under § 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.), the authorized treating physician providing the primary care makes the initial determination of when the claimant reaches MMI. In the event any party disputes the treating physician’s conclusion, that party must seek an independent medical examination (IME) for purposes of contesting MMI. Absent such an IME, the ALJ has no jurisdiction to resolve any dispute concerning when the claimant reached MMI. Story v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 95CA0446, December 7, 1995); Colorado AFL-CIO v. Donlon, ___ P.2d ___, (Colo.App. No. 93CA1118, 93CA1392, June 15, 1995).
It is true, as the claimant argues, that when the claim has multiple attending physicians providing primary care, and those physicians have conflicting opinions concerning the existence of MMI, the ALJ may resolve the dispute between the physicians. Burns v. Robinson Dairy Inc., ___ P.2d ___, (Colo.App. No. 95CA0131, June 15, 1995). However, once any primary care physician renders an opinion concerning MMI, the claimant is not free to circumvent the IME procedure by seeking authorization for additional treating physicians in order to dispute the original treating physician’s opinion concerning MMI. Story v. Industrial Claim Appeals Office, supra; Johanningsmeier v. Swedish Medical Center,
W.C. No. 4-115-315, October 27, 1994. This is true because obtaining opinions from additional authorized treating physicians constitutes a “constructive challenge” to the primary care physician’s opinion, and thus, circumvents the IME procedure.
Here, the ALJ has found that, as of July 29, 1994, the only authorized treating physician providing the primary care was Dr. Joshi, and that Dr. Joshi opined that the claimant reached MMI. Therefore, in order to challenge this opinion, the claimant was required to seek an IME under §8-42-107(8)(b). The mere fact that Dr. Cohen subsequently became an authorized treating physician did not create “conflicting opinions” between authorized treating physicians for purposes of paying temporary total disability benefits.
Moreover, it follows from this analysis that the ALJ did not improperly assign the burden of proof in requiring the claimant to prove entitlement to benefits after July 29. To the contrary, the ALJ found that the respondents met their burden of proof to terminate temporary disability benefits under § 8-42-105(3)(a) as of July 29. Therefore, to the extent the claimant desired additional temporary disability benefits she was entitled to obtain an IME or, alternatively, prove a worsening of condition as provided in the reopening provisions. See Patla v. Bethesda Care Center, W.C. No. 4-150-170, July 20, 1995.
The claimant did not obtain an IME to challenge Dr. Joshi’s opinion concerning MMI. Therefore, the ALJ’s award of medical benefits after July 29, in the form of psychological treatment provided by Dr. Cohen, must have represented either ongoing medical benefits under Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988), or additional medical benefits attributable to reopening based on a worsened condition. See Dorman v. B W Construction Co., 765 P.2d 1033 (Colo.App. 1988) (may reopen to award additional medical benefits even if there is no increase in permanent disability). To the extent the ALJ was awarding Grover medical benefits for the claimant’s psychological treatment, he was certainly not obliged to award contemporaneous temporary disability benefits.
To the extent the ALJ concluded that the claimant was entitled to additional medical benefits based upon a worsening her condition, the record supports his determination that the claimant failed to prove entitlement to additional temporary disability benefits. A claim may be reopened to award additional medical benefits, even if the evidence demonstrates that there has not been increased disability. Dorman v. B W Construction Co., supra.
Here, the ALJ has found that the claimant failed to prove that her need for additional psychological treatment caused any increase in her disability. This finding is amply supported by the record because none of Dr. Cohen’s notes reflect the imposition of restrictions caused by the claimant’s psychological condition. Therefore, the ALJ could logically conclude that the claimant’s wage loss was associated with the permanent effects of her physical injuries, not the worsening or development of her psychological condition.
It follows that we agree with the respondents that the record supports the ALJ’s determination that the claimant failed to prove her entitlement to any temporary disability benefits after July 29, 1994. In light of this disposition, and considering the issues before us, the respondents correctly argue that it is immaterial whether the ALJ properly found that the claimant’s psychological condition reached MMI on October 28. Therefore, we do not consider this issue.
IT IS THEREFORE ORDERED that the ALJ’s order, dated February 1, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed January 10, 1996 to the following parties:
Corina Bradley, 2201 S. Hancock, Colorado Springs, CO 80909
Ampex Corporation, Attn: Dave Campbell, 600 Wooten Rd., Colorado Springs, CO 80915
Insurance Company of the State of Pennsylvania, % Crawford Company, 4570 Hilton Parkway, #202, Colorado Springs, CO 80907
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909 (For Claimant)
Joel S. Babcock, Esq. and J. B. Fairbanks, Esq., 400 S. Colorado Blvd., #700, Denver, CO 80222 (For Respondents)
By: ____________________________