W.C. No. 4-170-452Industrial Claim Appeals Office.
January 14, 1998
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Wheelock (ALJ), which awarded the claimant temporary total disability benefits from May 10, 1995 and continuing. We affirm.
The ALJ found that the claimant sustained a compensable back injury, and was treated by Dr. Campbell. Dr. Campbell reported that the claimant reached maximum medical improvement (MMI) on May 10, 1995, with a seventeen percent whole person medical impairment. The ALJ found that the respondents filed a Final Admission of Liability for medical impairment benefits based on Dr. Campbell’s report.
In September 1996, Dr. Campbell issued a report “suspending” MMI, and recommending that the claimant undergo additional diagnostic procedures including EMG/NCV studies, and a “myelogram/CT” study. However, no action occurred on this recommendation until December 12, 1996, when the adjuster wrote to the claimant advising that the tests would be scheduled in Pueblo and Colorado Springs, and advancing $77.00 for mileage expenses. On December 24, 1996, the adjuster wrote to the claimant notifying her that the myelogram/CT study was scheduled for January 13, 1996, in Colorado Springs.
Documents in the record reflect that the claimant did not attend the January 13 examination, and may have missed subsequent examinations in February. (Letter from adjuster to claimant’s attorney dated February 12, 1997). However, the respondents concede that the claimant attended an examination for nerve conduction studies on March 4, 1997. Subsequently, the claimant has received authorized treatment from Dr. Finn.
The ALJ also found that, in February 1997, the claimant underwent a Division-sponsored independent medical examination (IME) on the issue of MMI. The IME was performed by Dr. Olson, who opined that the claimant was not at MMI on the date of the examination. Dr. Olson also stated that he was “not sure” the claimant ever reached MMI. Dr. Olson then recommended several courses of treatment including instruction on physical therapy, injections, and evaluation of depression and chronic pain symptoms.
The ALJ determined that Dr. Olson found the claimant was not at MMI, and that the respondents failed to overcome Dr. Olson’s opinion by clear and convincing evidence. Under these circumstances, the ALJ concluded that the claimant is entitled to temporary total disability benefits commencing May 10, 1995.
The ALJ also determined that the respondents are not entitled to suspend the claimant’s temporary total disability benefits for failure to cooperate with treatment. In support, the ALJ determined that the respondents did not communicate with the claimant between September 30, 1996, and December 12, 1996. Thus, the ALJ stated there was “no evidence that the employer made written requests” for the claimant to submit to a medical examination.
I.
On review, the respondents first contend that the ALJ erred in awarding temporary total disability benefits after May 10. The respondents assert that the IME physician’s opinion concerning whether or not the claimant was at MMI between May 10 and February 1997 is “equivocal.” Therefore, the respondents assert that the ALJ gave too much weight to this opinion. We disagree.
The respondents do not assert that the claimant was precluded from requesting the IME examination due to the filing of the Final Admission of Liability. Therefore, we need not consider that issue.
The statute currently codified at § 8-42-107(8)(b)(III), C.R.S. 1997, provides that the opinion of a Division-sponsored IME physician concerning MMI may be overcome “only by clear and convincing evidence.” The question of whether the Division-sponsored IME physician’s opinion on MMI was overcome by clear and convincing evidence 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 order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. In this regard, we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The respondents’ argument notwithstanding, the record contains substantial evidence to support the ALJ’s determination that Dr. Olson’s IME opinion was not overcome by clear and convincing evidence. A plausible interpretation of Dr. Olson’s IME report is that he was unable to place the claimant at MMI any time prior to his examination in February 1997. This inference is particularly strong in light of his recommendation that the claimant undergo specific treatment protocols.
Moreover, the ALJ was not required to conclude that Dr. Campbell’s statements concerning MMI overcame Dr. Olson’s opinion. To the contrary, it was a matter for the ALJ to assess the weight and credibility of the medical evidence, and assign it such probative value as she believed it deserves. Postlewait v. Midwest Barricade, supra.
II.
The respondents next contend that the ALJ erred in denying their request to suspend temporary disability benefits for the period of December 24, 1996 to March 4, 1997. The respondents, relying on § 8-43-404(3), C.R.S. 1997, argue that they issued written notification to the claimant requesting that she attend the January 13 medical appointment. The respondents assert that the claimant did not comply with this request, and missed several subsequent examinations. The respondents also argue that the ALJ erroneously ignored these facts simply because the medical treatment was delayed between September 30 and December 12, 1996. We find no reversible error.
That portion of § 8-43-404(3), on which the respondents rely, provides as follows:
“So long as the employee, after written request by the employer or insurer, refuses to submit to medical examination or vocational evaluation or in any way obstructs the same, all right to collect, or to begin or maintain any proceeding for the collection of, compensation shall be suspended. If the employee refuses to submit to such examination after direction by the director or any agent, referee, or administrative law judge of the division appointed pursuant to § 8-43-208(1) or any way obstructs the same, all right to weekly indemnity which accrues and becomes payable during the period of such refusal or obstruction shall be barred.”
We have previously held that, when read together, the first two sentences of § 8-43-404(3) create a two-tiered system of sanctions for refusal to submit to medical examinations. The first sentence permits a temporary suspension of the right to collect benefits for the period during which the claimant refuses to attend the medical examination. The second sentence creates permanent bar to collection of benefits if the claimant fails to submit to examination after being ordered to do so by an ALJ or the Director. See Matthews v. United Parcel Service, W.C. No. 4-325-652 (December 15, 1997); Bartilotta v. Coco’s Restaurant, W.C. No. 3-763-238 (September 8, 1988).
Here, the respondents motion for the suspension of benefits is predicated on a “written request” to submit to treatment, and they do not assert that the claimant failed to submit after being ordered to do so. Consequently, the most that the respondents could hope to obtain is a temporary suspension of the claimant’s right to collect benefits pending the claimant’s cooperation. The respondents concede that the claimant began cooperating as of March 4, 1997, and has apparently continued to cooperate with Dr. Finn. Therefore, the claimant’s right to collect benefits for the period of December 24 to March 4 has been restored and is no longer subject to suspension. Cf. Bacon v. Industrial Claim Appeals Office, 746 P.2d 74 (Colo.App. 1987). Under these circumstances, the ALJ’s award of benefits is justified even if based on an incorrect legal theory.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 18, 1997, 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. 1997.
Copies of this decision were mailed January 14, 1998 to the following parties:
Viann Dawson Cunningham, 31840 County Road 29, La Junta, CO 81050
University Park Care Center, Pueblo Medical Investors, Ltd., 945 Desert Flower Blvd., Pueblo, CO 81001-1148
Insurance Company of the State of Pennsylvania, AIG Claim Services, P. O. Box 32130, Phoenix, AZ 85064
Crawford Co., Attn: Tambra Redlin, 4570 Hilton Pkwy., #202, Colorado Springs, CO 80907
James M. Anderson, Esq., 559 E. Pikes Peak Ave., Ste. 212, Colorado Springs, CO 80903 (For Claimant)
Joan A. Goldsmith, Esq., 6665 Delmonico Dr., Ste. D, Colorado Springs, CO 80919 (For Respondents)
By: _______________________________