W.C. No. 4-267-190Industrial Claim Appeals Office.
January 20, 2000
[1] FINAL ORDER
[2] The pro se claimant seeks review of an order of Administrative Law Judge Felter (ALJ) insofar as it determined the claimant reached maximum medical improvement (MMI) on October 12, 1998, and, therefore, terminated temporary disability benefits. The claimant also contests the ALJ’s conclusion that the Division-sponsored independent medical examination (IME) physician, who was selected under § 8-42-107(8)(b)(II), C.R.S. 1999, was entitled to rate the claimant’s permanent medical impairment for purposes of § 8-42-107(8)(c), C.R.S. 1999. We affirm the ALJ’s order insofar as it terminated temporary disability benefits. We dismiss without prejudice the petition to review insofar as it contests the ALJ’s ruling concerning the effect of the IME physician’s impairment rating.
[3] The claimant sustained a compensable thumb injury in 1995. The claimant’s authorized treating physician has never placed the claimant at MMI for this injury. Employing the provisions §8-42-107(8)(b)(II), the respondents obtained a Division-sponsored IME on the issue of MMI. The respondents also requested the IME physician address the issue of permanent medical impairment.
[4] In a report dated October 14, 1998, the IME physician diagnosed the claimant as suffering from “post MP fusion” with neuropathic pain of the left upper extremity. The IME physician opined the claimant reached MMI on October 12, 1998, and that “further intervention with therapy, medications, injections, or surgery” was not likely to affect claimant’s functional level. However, the IME physician also recommended maintenance treatment including sympathetic nerve blocks and medications. Finally, the Division IME physician rated the claimant as having sustained a 12 percent impairment of the left upper extremity, which converts to a 7 percent whole person impairment rating. The respondents filed a final admission of liability based on the 12 percent upper extremity impairment rating.
[5] The matter proceeded to a hearing on the issues of whether the claimant was at MMI and entitled to ongoing temporary total disability benefits. The claimant also requested the ALJ to rule on the question of whether it was proper for the Division IME physician to rate the claimant’s permanent impairment without first referring the claimant back to the treating physician for an impairment rating under § 8-42-107(8)(c), C.R.S. 1999.
[6] In the order dated May 18, 1999, the ALJ found the claimant failed to overcome by clear and convincing evidence the Division IME physician’s opinion that the claimant reached MMI on October 12, 1998. In support, the ALJ credited the opinions of the Division IME physician and Dr. Goldberg that the claimant’s condition is not likely to improve with further treatment. Instead, the ALJ concluded that the claimant is in need of ongoing medical treatment to maintain his condition.
[7] The ALJ next ruled that it was proper for the Division IME physician to rate the claimant’s impairment, and it was not necessary for the claimant to be referred back to the treating physician for a rating. The ALJ also stated that if the issue of impairment is ever addressed, the claimant must overcome the Division IME physician’s rating by clear and convincing evidence.
[8] The claimant filed a petition to review the ALJ’s order, but failed to file a brief in support of the petition. Therefore, the effectiveness of our review is limited.
I.
[9] The claimant’s petition to review alleges the ALJ erred in determining that he reached MMI on October 12, 1998. The claimant also disputes Finding of Fact 5, which states the claimant “has not improved functionally in over two years.” We find no error.
[10] Pursuant to § 8-42-107(8)(b)(III), C.R.S. 1999, the claimant was required to overcome by clear and convincing evidence the Division IME physician’s opinion that the claimant reached MMI on October 12. The question of whether the claimant met his burden of proof is one of fact for determination by the ALJ. Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995). Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999. The weight and credibility of the medical evidence was a matter for resolution by the ALJ Postlewait v. Midwest Barricade, supra.
[11] Here, the ALJ credited the opinions of the Division IME physician and those of Dr. Goldberg. These opinions support the conclusion that the claimant’s condition is not likely to improve with further treatment, despite the fact that maintenance care is necessary. Although the claimant’s treating physician expressed a contrary opinion, we may not substitute our judgment for that of the ALJ concerning the weight of the medical evidence. Therefore, the record fully supports the ALJ’s determination that the claimant failed to overcome the Division IME physician’s opinion that the claimant is at MMI.
[12] Neither did the ALJ err in finding claimant’s condition has not functionally improved for more than two years, despite the extensive medical care rendered by the claimant’s treating physician. The claimant admitted that there had not been significant functional improvement for more than two years. (Tr. February 10, 1999, p. 26). The claimant’s treating physician also admitted there was not significant functional improvement with treatment. (Tr. April 16, 1999, p. 8).
II.
[13] The claimant’s petition to review also alleges the ALJ erred in concluding that it was proper for the Division IME physician to rate the claimant’s medical impairment “when the respondents have used § 8-42-107(8)(b)(II) to try to bring a claimant to maximum medical improvement.” The claimant further alleges that the ALJ erred in stating that, “if the claimant seeks to litigate the issue of impairment,” the claimant must overcome the Division IME physician’s rating by clear and convincing evidence. We conclude that these issues are not final and reviewable, and dismiss this portion of the petition to review without prejudice.
[14] Section 8-43-301(2), C.R.S. 1999, provides that a party “dissatisfied with an order” may file a petition to review any order which requires any party to pay a benefit or penalty, or denies the claimant any benefit or penalty. Orders which do not award or deny benefits or penalties are interlocutory and not subject to review. Natkin Co. v. Eubanks, 775 P.2d 88
(Colo.App. 1989). Some portions of an order may be final and reviewable, while other portions are not. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989). We have previously determined that an order requiring a party to pay for an IME is not an order granting or denying a benefit or penalty within the meaning of the statute. Eg. Martinez v. CIGNA Insurance, W.C. No. 4-153-571 (April 21, 1994).
[15] Here, the ALJ’s order does not award permanent partial disability benefits, nor does it deny any such benefits. At most, the order is a prospective ruling concerning the evidentiary effect of the Division-sponsored IME physician’s rating in any future litigation concerning medical impairment benefits. As such, the ALJ’s order is not currently subject to review.
[16] IT IS THEREFORE ORDERED that the ALJ’s order dated May 18, 1999, is affirmed insofar as it terminated the claimant’s temporary disability benefits on October 12, 1998.
[17] IT IS FURTHER ORDERED that the claimant’s petition to review is dismissed without prejudice insofar as it disputes the ALJ’s rulings regarding the effect of the IME physician’s impairment rating.
[18] INDUSTRIAL CLAIM APPEALS PANEL
[19] ___________________________________ David Cain
[20] ___________________________________ Kathy E. Dean
NOTICE
[21] 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. 1999.
[22] Copies of this decision were mailed January 20, 2000 to the following parties:
[23] Patrick Coffman, 2100 W. 100th Ave., #370, Thornton, CO 80221
[24] Irish Drain Service, Attn: Mike R. Irish, P.O. Box 740606, Arvada, CO 80006-0606
[25] Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority d/b/a Pinnacol Assurance — Interagency Mail (For Respondents)
[26] Glen B. Goldman, Esq., 999 18th St., #3100, Denver, CO 80202
[27] BY: LE