W.C. No. 4-179-337Industrial Claim Appeals Office.
October 30, 1996
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Gandy (ALJ) which awarded temporary total disability benefits commencing May 8, 1995 and continuing. We affirm.
The claimant sustained a compensable injury in 1992. The ALJ found that the claimant’s treating physician, Dr. Duncan, placed the claimant at maximum medical improvement (MMI) on May 8, 1995. The respondents then filed a Final Admission of Liability terminating the claimant’s temporary disability benefits and admitting liability for permanent disability based upon Dr. Duncan’s bilateral upper extremity impairment ratings.
The ALJ found that the claimant “duly objected” to the final admission and requested an independent medical examination (IME) “pursuant to statute.” Although the request for an IME does not appear in the record, the parties agreed that the request was limited to the “issue” of medical impairment.
A Division-sponsored IME was performed by Dr. Schuler on November 13, 1995. Dr. Schuler issued a report declining to rate the claimant’s medical impairment because, in his opinion, the claimant had not reached MMI. This opinion was largely predicated on Dr. Schuler’s conclusion that the claimant’s neck and shoulder symptoms were causally related to the industrial injury, and had not been sufficiently treated.
Following the issuance of Dr. Schuler’s IME report, the respondents requested a hearing on the issue of permanent partial disability benefits. The claimant responded by requesting the ALJ to consider the issue of temporary disability benefits commencing May 8, 1995, and continuing. In support of this request, the claimant noted that the “IME physician determined that the Claimant was not at MMI.”
At the hearing, the ALJ noted that the issues of temporary total disability and medical impairment had been listed for hearing. Neither party objected to this statement of the issues. At the conclusion of the hearing, the ALJ specifically asked counsel for respondents whether he agreed that the issue of “MMI” was to be considered. Counsel for respondents replied that MMI was an issue, but argued that the respondents overcame Dr. Schuler’s opinion concerning MMI by clear and convincing evidence. Specifically, counsel alleged that the deposition testimony and medical reports of Dr. Duncan prove that the claimant’s neck condition was not causally connected to the industrial injury. (Tr. pp. 16-18).
The ALJ found that the respondents “failed to meet their burden of proof of clear and convincing evidence to overcome the opinion of Dr. Schuler.” Thus, the ALJ concluded that the claimant was not at MMI on May 8, 1995, and was entitled to continuing temporary disability benefits.
On review, the respondents contend that the ALJ improperly considered the issue of MMI because the claimant did not request an IME on this issue. In support of their position, the respondents cite our decision in Carroll v. Cunningham Construction, W.C. No. 3-113-816, May 14, 1996. The claimant argues, inter alia, that the respondents failed to raise this issue, and therefore, it should not be considered on appeal. We agree with the claimant.
This case is governed by former § 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.) [amended, 1996 Colo. Sess. Laws, ch. 112 at 456-457, applicable to MMI determinations on or after July 1, 1996]. Section 8-42-107(8)(b) provides that the “authorized treating physician who has provided the primary care shall determine when the injured employee reaches maximum medical improvement.” The statute goes on to state that, if either party “disputes” the treating physician’s finding of MMI, the Division shall appoint an IME physician whose determination of MMI “shall be overcome only by clear and convincing evidence.” Finally, the statute provides that a “hearing on this matter shall not take place until the finding of the independent medical examiner selected by the director has been filed with the division.”
In Carroll v. Cunningham Construction, supra, we held that where respondents requested an IME on the “issue” of medical impairment, but not MMI, the ALJ properly held that the issue of MMI was not before him. This was true despite the fact the IME physician gave an impairment rating, but also opined that the claimant had not reached MMI. We reasoned that if one of the parties did not “dispute” the issue of MMI by requesting an IME, it was proper to ignore the IME physician’s opinion concerning MMI and proceed directly to the issue of medical impairment. In our view, this result served the statutory objective of reducing litigation on MMI and related issues.
Unlike the situation in Carroll, all parties in this case consented to allowing the ALJ to consider the issue of MMI, despite the fact that neither party had made a proper procedural request for an IME on this issue. Since the respondents failed to raise the argument that there had been no proper request for an IME, and affirmatively agreed to allow the ALJ to consider the MMI issue, they are not in a position to raise an objection on appeal. Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 884 P.2d 1131
(Colo.App. 1994); Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986).
In reaching this result, we observe that this is not a case in which there has been no Division-sponsored IME which addresses the question of MMI. Thus, the ALJ did not exceed his “jurisdiction” by assuming to adjudicate the issue. See Story v. Industrial Claim Appeals Office, 910 P.2d 80
(Colo.App. 1995) (ALJ exceeded jurisdiction by considering “constructive challenge” to treating physician’s MMI determination without requiring parties to go through IME procedure). Since the ALJ correctly addressed the issue of MMI, we need not consider the claimant’s other arguments.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 21, 1996 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon 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. (1996 Cum. Supp.).
Copies of this decision were mailed October 30, 1996 to the following parties:
Cynthia Brown, 7108 Lamar Ave., Ft. Collins, CO 80524
Colorado Animal Research Enterprises, Inc., 6200 E. County Rd. 56, Ft. Collins, CO 80524-9340
Colorado Compensation Insurance Authority, Attn: Brandee L. DeFalco, Esq. (Interagency Mail)
Thomas H. Moore, Esq., 425 W. Mulberry St., #112, Ft. Collins, CO 80521-2896 (For the Claimant)
J. Barton Maxwell, Esq., 1225 17th St., 28th Flr., Denver, CO 80202-5528 (For the Respondents)
By: _________________________