W.C. No. 4-382-031Industrial Claim Appeals Office.
July 31, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Jones (ALJ) which awarded temporary disability benefits. The respondents contest the ALJ’s finding that the authorized treating physician placed the claimant at maximum medical improvement (MMI) on July 13, 1999, rather than an earlier date. We affirm.
The respondents admitted liability for an occupational disease which interfered with the claimant’s ability to speak. The claimant’s treating physician, Dr. Childers, diagnosed chronic laryngitis, restricted the claimant from speaking, and prescribed speech therapy. The claimant was also taken off work. On October 26, 1998, Dr. Childers wrote to the insurance adjuster that the claimant’s voice was improved, the inflammation of her larynx was reduced, and the claimant was “probably” at MMI, at least when she completed speech therapy. The respondents apparently terminated temporary disability benefits based on this report.
Dr. Childers examined the claimant on November 2, 1998, and February 3, 1999. On both occasions he performed a flexible laryngoscopy. On February 3 the laryngoscopy showed the claimant’s vocal cords were “mildly edematous and minimally inflamed.” Dr. Childers then opined the claimant’s “larynx is back to its baseline.”
The claimant testified that Dr. Childers’ treatment did not greatly improve her voice and, therefore, she sought treatment from Dr. Peterson in March 1999. Dr. Peterson prescribed steroid medication which, in the claimant’s opinion, resulted in reduced swelling and greatly improved her voice. (Tr. p. 19). On May 14, 1999, Dr. Peterson recorded that the steroid medication reduced the swelling of the claimant’s vocal cords.
The claimant was next seen by Dr. Childers on July 13, 1999. Dr. Childers’ July 13 note states the claimant’s “voice quality is improved” but remains “a little heavy or thick.” A flexible laryngoscopy was performed which revealed some “edema with a small vascular- looking nodule.” Finally, Dr. Childers’ July 13 note states the claimant is “probably at MMI right now and the case should be closed.” On August 12, 1999, in response to a request from the claimant’s counsel, Dr. Childers wrote that the “exact date of MMI” was July 13, 1999.
The claimant sought a hearing arguing that Dr. Childers did not place her at MMI until July 13, 1999. Therefore, the claimant argued she is entitled to temporary total disability benefits through July 12, 1999. At the hearing, Dr. Childers testified the results of the laryngoscopy performed in February 1999 were “probably about the same” as the one performed in November 1998. He also stated the July 1999 and February 1999 laryngoscopies were similar except for the “little nodule” observed in July 1999. (Tr. pp. 67, 69-70). Dr. Childers also testified that he didn’t know when the claimant reached MMI, and that “you all are trying to get me to make a very arbitrary decision about medicine and people, and people aren’t clear-cut like that.” (Tr. p. 77).
The ALJ concluded the opinion of the authorized treating physician, Dr. Childers, is binding concerning the date of MMI because no party requested a Division-sponsored independent medical examination (IME). However, the ALJ found that Dr. Childers issued conflicting opinions concerning the dated MMI and, therefore, the actual date of MMI was a question of fact. Relying on Dr. Childers’ July 13 report, the claimant’s testimony, and other medical evidence, the ALJ determined the claimant reached MMI on July 13. Consequently, the ALJ awarded temporary disability benefits through July 12, 1999.
On review, the respondents contend the ALJ’s finding the claimant reached MMI on July 13, 1999, is not supported by substantial evidence in the record. Relying on Dr. Childers’ office notes concerning the results of the laryngoscopies performed between November 1998 and July 1999, as well as Dr. Childers’ hearing testimony, the respondents argue there is no evidence the claimant’s “underlying condition” improved after November 1998. The respondents also argue that Dr. Childers’ February 3 statement that the claimant’s larynx returned to “baseline” establishes the claimant did not improve with treatment from Dr. Peterson. We find no error.
Section 8-42-107(8)(b)(I), C.R.S. 1999, provides that an authorized treating physician makes the determination as to when the claimant reaches MMI. The authorized treating physician’s finding of MMI is binding on the parties unless disputed in accordance with the IME procedure. Section 8-42-107(8)(b)(III), C.R.S. 1999; Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996). However, if the authorized treating physician issues conflicting or ambiguous opinions concerning MMI, the ALJ may resolve the conflict and determine the date of MMI as a matter of fact without requiring the claimant to undergo an IME. Blue Mesa Forest v. Lopez, supra.
The claimant reaches MMI 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. 1999 Magnetic Engineering, Inc. v. Industrial Claim Appeals Office,
___ P.2d ___ (Colo.App. No. 99CA1380, June 8, 2000). When the treating physician issues conflicting or ambiguous opinions on this question of MMI, and the ALJ resolves the conflict or ambiguity as an issue of fact, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). We specifically note the ALJ is the sole arbiter of conflicting medical evidence Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra. Further, when a medical expert renders internally inconsistent opinions, the ALJ may resolve the conflict by crediting that portion of the expert’s opinion which the ALJ deems credible. Colorado Springs Motors Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997).
The respondents’ contention notwithstanding, the record supports the ALJ’s determination that Dr. Childers rendered conflicting and ambiguous opinions concerning MMI, and that the claimant did not reach MMI until July 13, 1999. Initially, we note Dr. Childers’ October 26, 1998, opinion concerning MMI was stated as a “probability,” and was conditioned on the claimant’s completion of speech therapy. The claimant testified that she did not complete speech therapy until January 1999. (Tr. p. 79). Thus, there is ambiguity in Dr. Childers’ initial statement concerning MMI. Further, as the ALJ found, this opinion was facially contradicted by Dr. Childers’ July 13, 1999 office note, and his subsequent report to claimant’s counsel.
Further, the laryngoscopy reports and Dr. Childers’ hearing testimony did not compel the ALJ to conclude the claimant reached MMI prior to July 13, 1999. First, as Dr. Childers himself admitted, the July 13, 1999, laryngoscopy revealed the presence of a nodule not observed during prior laryngoscopy examinations. Therefore, a possible inference is the claimant’s condition was not stable between November 1998 and February 1999. Further, the evidence supports the inference that the claimant’s condition improved with treatment by Dr. Peterson. Dr. Childers’ July 13 note specifically states the claimant’s voice quality was “improved.” Although Dr. Childers later testified that he could not say the improvement was “dramatic,” or permanent, the variance between Dr. Childers’ office note and his testimony presented a mere internal conflict which the ALJ was free to resolve as an issue of fact. In light of the claimant’s testimony, the ALJ plausibly inferred the claimant’s voice improved with treatment by Dr. Peterson.
Moreover, at the hearing, Dr. Childers was unwilling to testify the claimant reached MMI on any date prior to July 13. Instead, he focussed on the difficulty of determining the date of MMI. Consequently, the ALJ was free to resolve the conflicts in his testimony and determine that July 13 was the date at MMI. We decline the respondents’ invitation to substitute our judgment for that of the ALJ concerning the inferences to be drawn from Dr. Childers’ testimony and reports.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 10, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 1999. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed July 31, 2000
to the following parties:
Deborah Earle, 15 Sylvia Ct., Loveland, CO 80537
National Federation of Independent Businesses, 1410 Grant St., #C106, Denver, CO 80203-1846
Angela Slate, National Federation of Independent Businesses, 53 Century Blvd., #300, Nashville, TN 37214
Diana Gelbart, Twin City Fire Insurance Company, 7670 S. Chester St., #300, Englewood, CO 80112
Hartford Insurance Group, P. O. Box 22815, Denver, CO 80222
Regina M. Walsh Adams, Esq., 1011 37th Ave. Court, #201, Greeley, CO 80634 (For Claimant)
Bradley R. Unkeless, Esq., 7670 S. Chester St., #300, Englewood, CO 80112 (For Respondents)
BY: A. Pendroy