W.C. No. 4-375-227Industrial Claim Appeals Office.
April 16, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied the claim for temporary total disability benefits commencing October 27, 1999. The claimant argues the evidence compelled the ALJ to find she was no longer at maximum medical improvement (MMI), and to award additional temporary disability benefits. We affirm.
The claimant sustained a compensable low back injury in January 1998. As a result, the claimant underwent four separate surgeries including a discectomy and spinal fusion at L4-5. On June 8, 1999, one of the claimant’s treating physicians placed the claimant at MMI with a 24 percent whole person medical impairment rating, and a recommendation for continuing treatment including medications and home exercise.
On August 25, 1999, the claimant underwent a Division-sponsored independent medical examination (DIME) on the issues of MMI and permanent impairment. The claimant gave a history of continuing bilateral leg pain and low back pain. The DIME physician agreed with the treating physician’s opinion that the claimant reached MMI on June 8, and concurred in the treating physician’s recommendations for continuing medical treatment. The DIME physician assigned a 25 percent whole person medical impairment rating.
Following the DIME, the claimant continued to see one of the treating physicians, Dr. Finn. In October, 1999, Dr. Finn referred the claimant to Dr. Jenks for a second opinion. Dr. Jenks recommended electrodiagnostic studies and suggested the possibility of injections.
The claimant sought temporary total disability benefits commencing October 27, 1999. The claimant theorized the recommendation for additional treatment demonstrated a worsening of condition, and that she was no longer at MMI. However, the ALJ found the determination of MMI is subject to the “constraints” of the DIME process, and the claimant failed to prove any actual worsening of her condition after June 8, 1999. Therefore, the ALJ denied the claim for additional temporary disability benefits.
On review, the claimant argues the evidence compelled the ALJ to conclude she was no longer at MMI on October 27, 1999, when Dr. Jenks recommended additional diagnostic and treatment procedures. The claimant reasons that under the statutory definition of MMI, found at §8-40-201(11.5), C.R.S. 2000, an injured worker ceases to be at MMI whenever a treating physician prescribes additional treatment which has a reasonable prospect for improving the claimant’s condition. As a corollary to this argument, the claimant asserts the ALJ placed undue emphasis on proof of a physical worsening of condition as the basis for awarding additional temporary total disability benefits. As an evidentiary basis for this position, the claimant relies on Dr. Finn’s deposition testimony that Dr. Jenks’ recommendations had the potential to improve the claimant’s condition, and “by definition,” the claimant “would have [to] be taken off MMI” on October 27. (Finn depo. p. 18-19). We disagree with these arguments.
The claimant’s entitlement to temporary total disability benefits ceases when she reaches MMI. Section 8-42-105(3)(a), C.R.S. 2000. MMI exists when the underlying condition causing the disability has become stable and when no further treatment will improve that condition. Section 8-40-201(11.5); Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
The claimant’s argument notwithstanding, a treating physician’s opinion that the claimant should undergo additional treatment which has a reasonable prospect for improving the claimant’s underlying condition is not necessarily sufficient to nullify a prior MMI determination. Rather, the statute prescribes a precise mechanism for determining MMI. Initially, the determination is made by a treating physician. Section 8-42-107(8)(b)(I), C.R.S. 2000. If a party disputes the authorized treating physician’s finding of MMI, that party may seek a DIME, and the DIME physician’s finding of MMI becomes binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(b)(III), C.R.S. 2000 Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra. Under this procedure, the “opinion of the primary care physician as to MMI is entitled to deference only when the IME procedure has not been used.” Postlewait v. Midwest Barricade, 905 P.2d 21, 24 (Colo.App. 1995).
Moreover, this statutory scheme was enacted to reduce litigation on the issue of MMI. Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). Consequently, in Story v. Industrial Claim Appeals Office, 910 P.2d 80, 82 (Colo. 1995), the court held that, after the treating physician placed the claimant at MMI, the claimant was not entitled to request a change of physician “for purposes of obtaining treatment to further cure her injury, to reach MMI, or obtain reinstatement of temporary total disability benefits.” To the extent the claimant was requesting a change of physician for these purposes, the request constituted a “constructive challenge” to the treating physician’s determination of MMI, and was not permissible under the statutory scheme for determining MMI.
However, we have held that where a claimant’s condition worsens subsequent to the Division IME’s finding of MMI, the claimant may obtain additional medical treatment to improve his condition without the necessity of overcoming the DIME physician’s finding by clear and convincing evidence. The rationale for this conclusion “is that where the claimant’s condition has worsened the request for additional medical treatment does not constitute a `constructive challenge’ to the DIME physician’s determination of MMI.” See Rhodes v. Pyramid Enterprises, Inc., W.C. No. 4-360-050 (September 16, 1999).
Consequently, we perceive no error in the ALJ’s application of the law. The mere fact that Dr. Finn, a treating physician, recommended additional treatment to improve the claimant’s condition does not establish grounds to conclude the claimant was no longer at MMI. To the contrary, the ALJ found, on conflicting evidence, that the claimant’s condition was no worse on October 27, 1999 than it was on June 8, 1999, the date of MMI found by the DIME physician. Therefore, Dr. Finn’s recommendation for additional treatment constituted a “constructive challenge” to the DIME physician’s finding of MMI. Since the claimant’s counsel admitted the claimant was not attempting to overcome the DIME physician’s finding of MMI by clear and convincing evidence, Dr. Finn’s opinion did not provide grounds for reinstating temporary total disability benefits.
Insofar as the claimant argues that she proved an actual worsening of condition, we disagree. Although the record contains conflicting evidence and is subject to different inferences, substantial evidence supports the ALJ’s finding that the claimant’s condition did not actually worsen after MMI. The ALJ was persuaded the claimant’s symptoms in October 1999 were essentially the same as those which existed on the date of MMI. Moreover, as the ALJ found, Dr. Finn testified the claimant’s problems have probably existed since “her initial couple of surgeries,” and he “didn’t feel that she had a worsening of condition.” (Finn Depo. pp. 29-30). Because the ALJ’s pertinent findings are supported by substantial evidence, they must be upheld on review. Section 8-43-301(8), C.R.S. 2000.
To the extent the claimant makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED the ALJ’s order dated May 9, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Robert M. Socolofsky
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. 2000.
Copies of this decision were mailed April 16, 2001 to the following parties:
Becky Burger, 30 N. Garo Ave., Colorado Springs, CO 80909
Aspen Diversified Industries, Inc., 2210 Skyview Ln., Colorado Springs, CO 80904
Aspen Diversified Industries, Inc., 220 Ruskin Dr., Colorado Springs, CO 80910-2522
Curt Kriksciun, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
Gordon J. Heuser, Esq., 625 N. Cascade Ave., #300, Colorado Springs, CO 80903 (For Claimant)
Thomas M. Stern, Esq., 600 17th St., #1600N, Denver, CO 80202
By: L. Epperson