W.C. No. 4-629-629.Industrial Claim Appeals Office.
August 26, 2005.
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Martinez (ALJ) which awarded the claimant medical benefits. The respondents contend the ALJ had no jurisdiction to award medical benefits because the claimant has not undergone a Division-sponsored independent medical examination (DIME) on the issue of maximum medical improvement (MMI). The respondents also argue the claim is barred by the statute of limitations. We affirm.
The ALJ found that on September 6, 2000, the claimant, a maintenance worker, injured his left knee while moving a door at work. The claimant was treated by the employer’s designated physicians, including Dr. Bowman. The claimant was placed under lifting restrictions and advised not to kneel and squat. However, the claimant never missed any time from work. On October 11, 2000, Dr. Bowman released the claimant from medical care with the advisement that his symptoms would resolve “with time.”
The claimant continued to experience intermittent knee symptoms following the release from treatment. The claimant testified that his symptoms increased in severity and in 2004 he sought further medical treatment from a personal physician. In May 2004 a surgeon to whom the claimant was referred by his personal physician diagnosed a probable torn meniscus and recommended surgery. The claimant then returned to Dr. Bowman, and on September 28, 2004, Dr. Bowman confirmed a tear of the left medial meniscus, stated the claimant probably needs surgery, and opined “this is a work-related injury.”
The claimant applied for a hearing on the issue of medical benefits in the form of surgery. The respondents interposed the statute of limitations defense because the claimant did not file a claim for benefits until October 2004. Alternatively the respondents argued the ALJ lacked jurisdiction to award “pre-MMI medical benefits” because Dr. Bowman, acting as the authorized treating physician (ATP), placed the claimant at MMI when he released the claimant from care on October 11, 2000.
The ALJ concluded the claim is not barred by the statute of limitations because it was filed within two years after the date the claimant recognized the nature, seriousness, and probable compensable nature of the injury. Specifically, the ALJ found that because the claimant relied on Dr. Bowman’s October 2000 advice that the knee symptoms would abate over time, the claimant did not recognize this was untrue until sometime after October 4, 2002 (two years before the claim was filed on October 4, 2004).
The ALJ also concluded he had jurisdiction to award the surgery as a medical benefit. In this regard the ALJ credited the opinions of Dr. Bowman and the surgeon that the claimant’s need for surgery is related to the September 2000 industrial injury. The ALJ further stated that Dr. Bowman’s October 11, 200, medical reports are “ambiguous and contradictory” concerning whether the claimant was at MMI and had any permanent impairment. Under these circumstances the ALJ determined that the reports are “not binding because the respondents failed to file a final admission of liability notifying the claimant of any duty to act timely to avoid loss of benefits. See Section 8-42-107.2(2)(a)(I)(A) and (2)(b), C.R.S.”
I.
On review the respondents contend the ALJ erred in concluding the claimant did not realize the nature, seriousness and probable compensable nature of the injury until after October 4, 2002. The respondents rely on evidence that the claimant felt immediate knee pain on September 6, 2000, the claimant immediately reported the injury in writing, and the claimant received medical treatment for the injury. We disagree with this argument.
Section 8-43-103(2), C.R.S. 2004, provides that a claim shall be barred “unless within two years after the injury or after death resulting therefrom, a notice claiming compensation is filed with the division.” This statute effects the so-called “discovery rule” under which the statute of limitations does not begin to run until the claimant, as a reasonable person, should recognize the nature, seriousness and probable compensable nature of the injury. City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967).
The question of whether a claimant as a reasonable person should recognize the nature and seriousness of an injury is ordinarily one of fact for resolution by the ALJ. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004; Mastro v. Brodie, 682 P.2d 1162, 1169 (Colo. 1994); Hoaglund v. B B Excavating, W.C. No. 4-465-123 (September 13, 2001). This standard of review requires that we defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
The facts that a claimant has an identifiable injury, reports it to the employer and receives treatment for it do not compel a conclusion that the claimant recognized the seriousness of the injury. Indeed, if the claimant is able to return to work after an injury, suffers only a brief period of restricted activity, and is not apprised of the possibility of future deterioration of his physical condition, the ALJ may find that the claimant did not recognize the seriousness of the injury if greater problems develop. See City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997); Intermountain Rubber Industries, Inc. v. Valdez, 688 P.2d 1133
(Colo.App. 1984).
Here, the ALJ determined that when the claimant was released from care in October 2000 he was advised by the ATP that all his symptoms should abate with time. Further, the ALJ found the claimant never missed any time from work, and did not seek any additional treatment until 2004. The ALJ’s findings are supported by substantial evidence in the record, and support the conclusion that the claimant did not recognize the seriousness of the injury until his condition deteriorated after October 2002 and surgery was recommended. City of Durango v. Dunagan, supra.
In any event, the claimant never missed time from work. Thus, he was not entitled to any temporary disability benefits. Because the claimant never sustained a disability which would entitle him to disability benefits, the claimant could not recognize the probable compensable nature of the injury. See City of Colorado Springs v. Industrial Claim Appeals Office, 89 P.3d 504 (Colo.App. 2004) (for claimant to recognize probable compensable nature of injury the injury must be of sufficient magnitude to lead a reasonable person to recognize he or she may be entitled to disability benefits).
II.
The respondents next contend the ALJ erred in awarding “pre-MMI medical benefits” after October 11, 2000. The respondents argue that, contrary to the ALJ’s finding, Dr. Bowman unambiguously placed the claimant at MMI on October 11. Therefore, the respondents reason, the ATP had placed the claimant at MMI and the ALJ lacked jurisdiction to award additional medical benefits absent a DIME on the issue of MMI. We are not persuaded.
MMI is that 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.” Section 8-40-201(11.5), C.R.S. 2004. MMI triggers the right to PPD benefits. Nunnally v. Wal-Mart Stores, Inc., 943 P.2d 26 (Colo.App. 1996).
The statute provides that an ATP shall make the initial determination of MMI. If a party disputes that determination a DIME must occur, and the ALJ is prohibited from hearing the issue of MMI until the finding of the DIME physician is filed. Section 8-42-107(8)(b)(I) and (b)(III), C.R.S. 2004; Town of Ignacio v. Industrial Claim Appeals Office, 70 P.3d 513
(Colo.App. 2002). Consequently, if an ATP places the claimant at MMI, an ALJ lacks jurisdiction to award additional medical benefits to improve the claimant’s condition unless a DIME has been conducted on the issue of MMI. Town of Ignacio v. Industrial Claim Appeals Office, supra; Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 2000).
However, if the ATP issues ambiguous or conflicting opinion concerning MMI, the ALJ may determined the ATP’s true opinion without the necessity of a DIME. If the ALJ finds the ATP did not place the claimant at MMI, the ALJ retains jurisdiction to determine whether particular medical treatment designed to assist the claimant in reaching MMI is authorized, reasonable and necessary. The question of whether the ATP has placed the claimant at MMI is one of fact. Town of Ignacio v. Industrial Claim Appeals Office, supra.
The respondents asserted as a defense to what they refer to as “pre-MMI medical benefits” the contention that the ATP placed the claimant at MMI. Because the respondents were asserting the affirmative of the proposition, they had the burden of proof to establish that the ATP placed the claimant at MMI. Cowin Co. v. Medina, 860 P.2d 535 (Colo.App. 1992).
As we understand the ALJ’s order, he determined the respondents did not prove that Dr. Bowman, acting as ATP, placed the claimant at MMI in October 2000. The respondents’ assertions notwithstanding, that determination is supported by a plausible interpretation of the evidence. Although one of the reports states the claimant reached MMI without impairment, and another states Dr. Bowman no longer needed to see the claimant, a third report states the claimant is presently impaired and no permanent medical impairment is “anticipated.” Indeed, specific restrictions on squatting and kneeling are contained in this third report. The same report states the claimant is to return for treatment “as needed.” Finally, as the ALJ found, in 2004 Dr. Bowman opined the claimant needs surgery for the industrial injury. It could reasonably be inferred from this evidence that Dr. Bowman never decided the claimant’s condition was stable enough to determine whether any permanent impairment existed, and Dr. Bowman is now of the opinion that the claimant did not reach MMI.
For these reasons we reject the respondents’ assertion that the ALJ was compelled to find the ATP placed the claimant at MMI with no impairment, and therefore lacked jurisdiction to determine entitlement to medical benefits including the surgery. For this reason we need not address the ALJ’s alternative conclusion that he could address MMI without benefit of a DIME because the respondents never filed a final admission of liability.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 23, 2005, is affirmed.
Daniel Cass, Grand Junction, CO, Mesa County Valley School District, Grand Junction, CO, Legal Department, Pinnacol Assurance — Interagency Mail, Christopher Seidman, Esq., Grand Junction, CO, (For Claimant).
Douglas P. Ruegsegger, Esq. and Michele Stark Carey, Esq., Denver, CO, (For Respondents).