W.C. No. 4-184-039Industrial Claim Appeals Office.
July 17, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Martinez (ALJ), which denied her claim for additional medical benefits. We affirm.
The issue in this case whether the ALJ correctly determined the claimant reached maximum medical improvement (MMI) on October 25, 1993. The ALJ found that the claimant sustained a compensable “occupational disease” in August 1993. At that time, the claimant reported symptoms involving her right arm and low back.
The claimant’s treating physician was Dr. McCranie. On October 25, 1993, Dr. McCranie issued a report which diagnosed the claimant as suffering from “right upper extremity pain, muscular in nature.” The report further states that the claimant missed multiple physical therapy appointments and that “she states now that she would not be able to take the time [to] undergo any treatment.” Under these circumstances, Dr. McCranie discharged the claimant at MMI “due to her noncompliance and current inability to come in for treatment.” Dr. McCranie also gave the claimant a prescription for Pamelor and assigned an impairment rating of two percent of the upper extremity.
Subsequently, the claimant underwent a Division-sponsored independent medical examination (IME) at the hands of Dr. Scott. Dr. Scott’s report was dated December 27, 1994, and states the claimant was suffering from symptoms similar to those described in August 1993. Dr. Scott opined that the claimant was not at MMI and recommended that she undergo “electrodiagnostic studies” to determine whether additional treatment was necessary.
However, Dr. Scott was deposed on October 23, 1995. At that time Dr. Scott was informed that the claimant was involved in an automobile accident on October 28, 1994, shortly before the IME examination. In view of medical records describing the claimant’s treatment after the automobile accident, the ALJ found that “Dr. Scott changed his mind and opined that the claimant reached maximum medical improvement [from the industrial injury] on October 25, 1993.” The ALJ found that Dr. Scott’s testimony was credible.
Under these circumstances, the ALJ concluded that the claimant reached MMI on October 25, 1993, as reported by Dr. McCranie. Further, the ALJ determined that Dr. Scott’s initial opinion that the claimant was not at MMI was overcome by clear and convincing evidence. This conclusion was based upon the finding that Dr. Scott “changed his mind, both with respect to claimant not being at maximum medical improvement and with respect to the relatedness of the need for further testing to the admitted occupational disease.”
I.
On review, the claimant contends that the ALJ erred as a matter of law in determining that the claimant reached MMI on October 25, 1993. Relying on § 8-40-201(11.5), C.R.S. (1995 Cum. Supp.), the claimant argues that MMI does not occur until “a 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.” The claimant reasons that Dr. McCranie never opined that the claimant’s condition was stable, but issued the MMI opinion as a form of “punishment” for the claimant’s failure to attend physical therapy. The claimant goes on to argue that the appropriate “punishment” of such conduct is not a finding of MMI, but termination of temporary disability benefits under §8-42-105(1)(c), C.R.S. (1995 Cum. Supp.). We are not persuaded.
Generally, the initial determination of whether the claimant has reached MMI is a decision for the authorized treating physician providing the primary care. Section 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.) Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). We do not dispute the claimant’s assertion that the authorized treating physician’s decision is governed by the statutory criteria set forth in §8-40-201(11.5).
However, the question of whether the claimant meets the statutory definition of MMI is usually factual in nature, and depends on the treating physician’s medical judgment concerning the claimant’s diagnosis and prognosis. Colorado AFL-CIO v. Donlon, supra. Thus, unless the record unequivocally establishes that the treating physician applied improper criteria in evaluating the claimant’s status, the ALJ may not purport to interfere with the treating physician’s determination of MMI. See Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995).
The claimant’s argument notwithstanding, the record before us does not present a situation in which we may say, as a matter of law, that the treating physician departed from the statutory guidelines defining MMI. To the contrary, Dr. McCranie’s medical records indicate that, by October 25, Dr. McCranie was of the opinion that the claimant was suffering from a relatively minor muscle strain, that her condition was not likely to improve with treatment and the symptoms could be handled by medication. Further, as the respondents argue, it need not be inferred that Dr. McCranie sought to “punish” the claimant for her failure to attend physical therapy. To the contrary, it may logically be inferred that Dr. McCranie concluded that the claimant’s failure to attend physical therapy indicated that such sessions were not likely to be of any medical value to the claimant.
Moreover, Dr. McCranie gave the claimant an impairment rating. This reflects Dr. McCranie’s opinion that, within the meaning of §8-40-201(11.5), the claimant’s condition was stable and rateable.
In reaching this result, we need not hypothesize the exact fact pattern which might lead us to conclude that an authorized treating physician has ignored the statutory criteria for MMI, and therefore, that the determination of MMI is erroneous as a matter of law. We simply determine that the facts before us do not present that situation, and the ALJ correctly concluded that this case is subject to the IME procedure governing determinations of MMI.
II.
The claimant next contends that the ALJ erred in determining that Dr. Scott’s opinion that the claimant was not at MMI was overcome by clear and convincing evidence. The claimant argues that, when Dr. Scott changed his opinion in the deposition, he stated that it was “more likely than not” that the claimant’s symptoms were related to the automobile accident. The claimant asserts that this proves that the ALJ utilized an incorrect legal standard. Moreover, the claimant points out that Dr. Scott stated that an EMG study might help clarify the etiology of the claimant’s upper extremity symptoms. We are not persuaded.
The question of whether a party has overcome the opinion of an IME physician concerning MMI is a question of fact for resolution by the ALJ. In order to overcome the IME opinion, the party must show that it is “highly probable” that the IME physician’s opinion is incorrect. In making this determination, the ALJ is the sole arbiter of conflicts in medical evidence and we must uphold his decision if supported by substantial evidence in the record and plausible inferences drawn therefrom Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995); §8-43-301(8), C.R.S. (1995 Cum. Supp.).
Here, it is true that Dr. Scott qualified his change of opinion by stating that it is “more likely than not” that the claimant’s symptoms were related to the industrial injury. However, the weight to be assigned that qualification was a matter for determination by the ALJ, and in no way disqualified Dr. Scott’s testimony for purposes of determining whether the respondents met their burden of proof. The ALJ was free to determine that Dr. Scott’s change of heart was persuasive enough to make it “highly probable” that the initial MMI determination was incorrect.
Similarly, the fact that the claimant did not undergo an additional EMG was relevant, though not determinative of whether the respondents carried their burden of proof. The ALJ was obviously not influenced by this evidence, and we may not substitute our judgment for his concerning inferences to be drawn therefrom.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 12, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1990 Cum.Supp.).
Copies of this decision were mailed July 17, 1996 to the following parties:
Toya Estep, 613 Peace Dr., Grand Junction, CO 81504
James Cape and Sons Company, P. O. Box 1315, Racine, WI 53401-1315
Transportation Insurance Company, % CNA Insurance Companies, P. O. Box 17369 T. A., Denver, CO 80217
Roger Fraley, Jr., Esq., 3113 E. 3rd Ave., #200, Denver, CO 80206 (For Claimant)
John M. Lebsack, Esq., 1225 17th St., 28th Floor, Denver, CO 80202-5528 (For Respondents)
By: _________________________