W.C. No. 4-426-746Industrial Claim Appeals Office.
August 15, 2002.
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which granted the claimant’s petition to reopen and awarded medical and temporary disability benefits. The respondents contend the ALJ lacked jurisdiction to reopen the claim absent a Division-sponsored independent medical examination (DIME) on the issue of maximum medical improvement (MMI). The respondents also challenge the sufficiency of the evidence to support the finding of a worsened condition, and the sufficiency of the evidence to support the award of temporary disability benefits. We conclude the ALJ has jurisdiction to adjudicate the petition to reopen, but remand for entry of a new order on the issues of reopening and additional benefits.
The claimant sustained a compensable injury to his right knee in June 1999 and underwent arthroscopic surgery. On December 13, 1999, the treating physician placed the claimant at MMI with a 17 percent lower extremity impairment rating and restrictions of no kneeling and limited squatting, standing and walking. At the time of MMI the claimant’s range of motion in the right knee was 130 degrees of flexion and 10 degrees of extension. The respondents filed a final admission of liability, which included an admission for continuing medical benefits, and the claim was closed.
In October 2001 the claimant filed a petition to reopen based on a worsened condition. The claimant testified that in approximately March 2000 he began to experience increased pain and “popping” in the right knee joint. He also testified that these symptoms reduced his stamina and capacity to perform work for eight hours per day. (Tr. pp. 14-15, 28).
On August 30, 2000, the claimant was examined by Dr. Grey. Dr. Grey reported the claimant gave a history of continued knee symptoms, including “mechanical locking, popping and pain,” which affected the claimant’s activities of daily living. Dr. Grey diagnosed “mild medial compartment arthrosis” and chondromalacia, and recommended medications and possible joint injections. The claimant’s range of motion was measured at 145 degrees of flexion and -3 degrees of extension.
In January 2001 the claimant commenced a series of injections performed by the original surgeon, Dr. Sillix. On February 26, 2001, Dr. Sillix answered “yes” to the question whether he considered the treatments “consistent with the maintenance medical treatment” recommended in December 1999. On June 20, 2001, Dr. Sillix again stated that he considered the treatments to be “maintenance” care, but also stated he was not previously asked “whether or not I agreed the patient was at a point of maximum medical improvement.” On September 26, 2001, Dr. Sillix issued a report opining the claimant’s condition had worsened and become “more disabling” than it was in December 1999. Dr. Sillix then recommended a “diagnostic and operative arthroscopy” of the right knee.
The ALJ credited the claimant’s testimony concerning the increased symptoms commencing in March 2000. (Findings of Fact 7, 10, 11). The ALJ also found the claimant showed a “significant change in range in motion in the knee” between December 1999 and August 30, 2000. (Findings of Fact 8, 9). Consequently, the ALJ determined the claimant proved a worsened condition by August 30, 2000. (Finding of Fact 12). The ALJ also credited the claimant’s testimony and “other evidence” to conclude the worsened condition “adversely affected” the claimant’s ability to earn wages. Thus, the ALJ awarded temporary disability benefits commencing August 30, 2000, and additional medical benefits reasonably necessary to cure and relieve the claimant’s knee condition.
I.
On review, the respondents first contend the ALJ lacked jurisdiction to decide whether the claimant’s condition had worsened because no DIME was conducted. The respondents argue that the February 26 and June 20 reports of Dr. Sillix are, in effect, statements that the claimant remained at MMI because the claimant was receiving maintenance treatment. Therefore, the respondents reason, the ALJ could not consider whether the claimant’s condition has worsened unless the claimant underwent a DIME on the issue of MMI. We disagree.
Under § 8-42-107(8)(b)(I), C.R.S. 2001, an authorized treating physician makes the initial determination of when the claimant reaches MMI. A party seeking to challenge the treating physician’s finding of MMI must obtain a DIME, and the DIME physician’s finding concerning MMI becomes binding unless overcome by clear and convincing evidence. Further, an ALJ lacks jurisdiction to adjudicate the issue of MMI until the DIME physician’s finding has been filed. Section 8-42-107(8)(b)(III), C.R.S. 2001; Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000); Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995).
In contrast, the question of whether a claimant’s condition has worsened so as to justify reopening is a question committed to the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA0852, February 28, 2002). Th Cordova court also held that a DIME physician’s opinion concerning whether or not the claimant’s condition worsened after MMI is not subject to any presumptive weight under the statute. The court reasoned that the opinions of DIME physicians have been accorded presumptive effect only where the statute so requires, and the statute does not require such weight on the issue of reopening for a worsened of condition.
It follows that a treating physician’s opinion that the claimant’s condition did not worsen after closure of the claim is not entitled to any presumptive effect, nor must a party disputing the treating physician’s opinion obtain a DIME as a jurisdictional predicate to litigating a petition to reopen. The treating physician’s opinion that the claimant remains at MMI constitutes evidence the claimant’s condition has not worsened, but nothing in the statute requires the ALJ to defer to that opinion, nor does it require a DIME before adjudicating the petition to reopen. Cf. Chasteen v. King Soopers, Inc., W.C. No. 4-445-608 (April 10, 2002) (treating physician’s opinion that claimant’s employment aggravated a preexisting condition not entitled to presumptive weight on the threshold issue of whether the claimant proved an injury arising out of and in the course of employment).
Thus, we reject the respondents’ assertion that the claimant was required to obtain a DIME to challenge the opinions of Dr. Sillix expressed in the February 26 and June 20 reports. In reaching this result, we do not address the question of whether the February 26 and June 20 reports actually constitute opinions that the claimant remained at MMI. We assume, for the sake of argument, that the respondents properly characterize the reports.
II.
The respondents next contend the evidence does not support the ALJ’s finding that the claimant proved a worsened condition. The respondents argue, inter alia, that Findings of Fact 8 and 9 do not support the finding of a worsened condition because the claimant’s range of motion measurements on August 30, 2000 represent an improvement over those which existed when the claimant reached MMI in December 1999. The claimant responds that the August 2000 measurements “arguably show an improvement” over those in December 1999, but argues “this inadvertent flaw in the arguments of claimant’s counsel” is harmless in light of other evidence showing a worsened condition. (Claimant’s Brief at p. 5). We conclude the error is not harmless.
As noted, the question of whether the claimant proved a worsened condition is a discretionary decision for the ALJ. Consequently, we may not interfere with the decision unless there is fraud or a clear abuse of discretion. Richards v. Industrial Claim Appeals Office, 996 P.2d 756
(Colo.App. 2000). An abuse of discretion exists if the order is beyond the bounds of reason, as where it is contrary to law or not supported by the evidence. See Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867
(Colo.App. 2001).
Here, the claimant has judicially admitted that the ALJ’s Findings of Fact 8 and 9 are based on the ALJ’s incorrect assumption that the measurements show a worsening rather than improvement in the claimant’s range of motion. The claimant’s contention notwithstanding, we do not consider this error to be harmless. The order indicates the ALJ viewed the range of motion measurements as objective evidence which corroborates the claimant’s testimony and reports to physicians that his symptoms increased beginning in March 2000. Indeed, the ALJ characterized these measurements as showing a “significant change” in the claimant’s range of motion. Thus, it is impossible to determine what weight the ALJ would have given the claimant’s testimony and statements to physicians had he understood the true meaning of the range of motion measurements. Thus, the order constitutes an abuse of discretion because it is not based on substantial evidence.
Under these circumstances, the matter must be remanded for the entry of a new order determining whether or not the claimant proved a worsened condition, and, if so, when the worsening occurred. Obviously, this determination may affect the date of entitlement to temporary disability and medical benefits, if any. Thus, we do not now consider the respondents’ arguments concerning whether or not the claimant is entitled to temporary disability benefits if he proves a worsened condition. The ALJ shall enter an order based on the existing record, and no further hearing is authorized by this order.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 25, 2002, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________________ David Cain
___________________________________ Bill Whitacre
Copies of this decision were mailed August 15, 2002 to the following parties:
John M. Davis, 1775 Dennis St., Blackfoot, ID 83221
Anderson News, 1227 Pitkin Ave., Grand Junction, CO 81501
AIG, c/o Tracy Nolton, Specialty Risk Services, P. O. Box 221700, Denver, CO 80222
Harry E. Coff, Jr., Esq., 225 N. 5th, #705, Grand Junction, CO 81501 (For Claimant)
James B. Fairbanks, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
By: A. Hurtado