W.C. No. 4-494-519Industrial Claim Appeals Office.
March 12, 2003
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Friend (ALJ) which required the respondent to reinstate temporary disability benefits. We affirm.
The essential facts are undisputed. On June 6, 2000, the claimant suffered a compensable injury. On February 21, 2001, Dr. Anderson-Oeser placed the claimant at maximum medical improvement (MMI). In March 2001, the respondent filed a Final Admission of Liability terminating temporary disability benefits based on the finding of MMI. The claimant timely objected and requested a Division-sponsored independent medical examination (DIME) by filing a Notice and Proposal to Select an Independent Medical Examiner consistent with the requirements of §8-42-107.2(2)(b), C.R.S. 2002.
Thereafter, the claimant continued to treat with Dr. Anderson-Oeser. On January 28, 2002, Dr. Anderson-Oeser withdrew her prior determination of MMI. The claimant subsequently requested the reinstatement of temporary disability benefits retroactive to February 22, 2001.
The matter came before the ALJ at a hearing on July 29, 2002. At the time of the hearing no DIME had been conducted.
The ALJ found Dr. Anderson-Oeser issued ambiguous and conflicting opinions on the issue of MMI. The ALJ resolved the conflict by crediting Dr. Anderson-Oeser’s deposition testimony that the claimant did not reach MMI on February 21, 2001, and has yet to reach MMI. Accordingly, the ALJ determined the respondent failed to prove it had grounds to terminate temporary disability benefits and ordered the respondent to reinstate temporary disability benefits at the admitted rate.
On review, the respondent contends the ALJ exceeded his jurisdiction by making an independent determination of MMI after the DIME process had been initiated. We disagree.
Sections 8-42-107(8)(b)(I) and (II), C.R.S. 2002, provide that the initial determination of MMI is to made by an authorized treating physician. The authorized treating physician’s opinion is binding, and the parties may not litigate the issue of MMI, unless the party disputing the authorized treating physician’s determination of MMI obtains a DIME Town of Ignacio v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA2024, November 7, 2002); Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Subsection 8-42-107(8)(b)(III) adds that in the absence of a DIME, ALJs lacks authority to hear a challenge to the treating physician’s finding of MMI. Story v. Industrial Claim Appeals Office, 910 P.2d 80
(Colo.App. 1995); Postlewait v. Midwest Barricade, 905 P.2d 21
(Colo.App. 1995). Therefore, in a series of cases including, Ames v. Pueblo County, W.C. No. 4-507-284 (September 4, 2002); Davis v. Anderson News, W.C. No. 4-426-746 (August 15, 2002); and Deyle v. Prowers Medical Center, W.C. No. 4-185-255 (June 23, 1997), we held ALJs lack jurisdiction to make an independent determination of MMI where a DIME has been requested but not yet completed.
However, it is now well established that a DIME is not a prerequisite to the ALJ’s resolution of whether an authorized treating physician has determined the claimant to be at MMI. Town of Ignacio v. Industrial Claim Appeals Office, supra; Blue Mesa Forest v. Lopez, 928 P.2d 831
(Colo.App. 1996) (decided under predecessor statute); cf. MGM Supply Co. v. Industrial Claim Appeals Office, __ P.3d __ (Colo.App. 01CA1200, March 14, 2002) (ALJ may resolve ambiguities in DIME physician’s report regarding whether claimant is at MMI). This is true because the purpose of a DIME under § 8-42-107(8)(b)(II) is to make an independent determination of whether the claimant reached MMI, not determine whether the treating physician has rendered an opinion on MMI. Town of Ignacio v. Industrial Claim Appeals Office, supra.
With one exception which does not apply here, the DIME process is not triggered until the authorized treating physician places the claimant at MMI. Consequently, where the question is disputed, the ALJ’s determination of whether the treating physician has placed the claimant at MMI is a necessary prerequisite to the applicability of the DIME procedures. Indeed, the parties cannot determine whether to “dispute” the authorized treating physician’s determination of MMI until the parties know the true nature of the treating physician’s opinion. It follows that we reject the respondent’s contention the ALJ lacked jurisdiction to determine whether Dr. Anderson-Oeser found the claimant to be at MMI for purposes of terminating temporary disability benefits under §8-42-105(3)(a), C.R.S. 2002 (temporary disability benefits terminate when the claimant has reached MMI).
Moreover, § 8-42-107.2, governs the selection of a DIME physician to “resolve disputes arising under section 8-42-107.” By its plain and ordinary meaning, a dispute concerning ambiguities in a treating physician’s determination of whether the claimant has reached MMI is not a dispute under § 8-42-107. See Anheuser Busch Inc. v. Industrial Claim Appeals Office, 28 P.3d 969 (Colo.App. 2001) (rules of statutory construction require that words to be given their plain meaning); cf Calvillo v. Intermountain Wood, W.C. No. 4-462-927 (September 24, 2002) (ALJ may resolve factual dispute concerning ambiguity in treating physician’s impairment rating without DIME).
It would be inefficient and financially burdensome for a party to incur the cost of a DIME to contest a treating physician’s determination of MMI if it were subsequently determined that the treating physician did not place the claimant at MMI. This is contrary to the legislative goal of “assuring the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers.” Section 8-40-102 C.R.S. 2002. In fact, an ALJ’s resolution of a factual dispute concerning whether an authorized treating physician placed the claimant at MMI may obviate the need for a DIME. Thus, we decline to infer the General Assembly intended that the filing of a request for a DIME precludes an ALJ from resolving a factual dispute concerning whether the treating physician placed the claimant at MMI.
The respondent’s reliance on the cases of Ames v. Pueblo County supra; Davis v. Anderson News, supra; and Deyle v. Prowers Medical Center, supra, is misplaced. None of these cases involved an ALJ’s resolution of a factual dispute concerning whether a treating physician placed the claimant at MMI.
Finally, the ALJ’s findings support the conclusion the respondent failed to prove grounds to terminate temporary disability benefits in accordance with § 8-42-105(3)(a). Consequently, the ALJ did not err in ordering the retroactive reinstatement of temporary disability benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 30, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE This Order is final unless an action to modify or vacate this Order iscommenced 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. 2002. The appealing party mustserve a copy of the petition upon all other parties, including theIndustrial Claim Appeals Office, which may be served by mail at 1515Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed March 12, 2003 to the following parties:
Katherine Briley, 785 Opal Way, Broomfield, CO 80020
K-Mart Corporation, 5005 W. 120th, Broomfield, CO 80020
Susan Heil, Cambridge Integrated Services Group, Inc., P. O. Box 6111, Covina, CA 91723
Thomas D. Hacker, Esq., 3773 Cherry Creek Drive North, #575, Denver, CO 80209 (For Claimant)
Margaret Keck, Esq. and Kathleen Mowry Fairbanks, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondent)
BY: A. Hurtado