W.C. No. 4-185-877Industrial Claim Appeals Office.
September 7, 1995
ORDER OF REMAND
The claimant seeks review of the final order of Chief Administrative Law Judge Felter (ALJ), which found that the claimant reached maximum medical improvement (MMI) on September 13, 1993, and denied temporary total disability benefits as of that date. We set the order aside and remand for entry of a new order.
The ALJ found that the claimant sustained an industrial back injury on August 16, 1993, when lifting a trash can. The claimant was treated by Dr. Smith for what was diagnosed as “back strain and back abrasion.” The claimant was placed on lifting restrictions and restricted to light duty.
However, on September 13, 1993, Dr. Smith released the claimant from treatment and found him to be at MMI. The claimant was released to return to his pre-injury job without restrictions.
Despite this release, the claimant testified that he continued to experience problems with his back. Ultimately, he requested a Division-sponsored independent medical examination (IME) for the purpose of contesting Dr. Smith’s opinion concerning MMI. In July 1994, the IME physician, Dr. McCranie, issued an IME report. Dr. McCranie opined that the claimant was not at MMI, and needed a course of physical therapy and occupational therapy.
However, the ALJ rejected Dr. McCranie’s opinion concerning MMI, and “adopted” Dr. Smith’s opinion. This decision was largely influenced by the ALJ’s finding, based on conflicting evidence, that the claimant suffered an “intervening injury” on September 17, 1993. The ALJ stated that the more “reasonable explanation” for the evidence was that the claimant “suffered a minor low back strain and contusion on August 16, 1993, and reached maximum medical improvement from that injury on September 13.”
On review, the claimant contends that the ALJ erred in “ignoring” Dr. McCranie’s IME opinion that the claimant was not at MMI. The claimant argues that the ALJ could not discredit Dr. McCranie’s opinion without finding that it was overcome by “clear and convincing evidence” as provided in § 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.). Moreover, the claimant asserts that the ALJ misapplied the burden of proof because the ALJ’s “Discussion” of the law refers to the “more reasonable explanation” of the evidence, not the clear and convincing standard.
For their part, the respondents argue that the “clear and convincing” standard does not apply to determinations of “causation.” Consequently, the respondents reason that the ALJ was not required to utilize the clear and convincing standard in determining whether the claimant sustained an intervening compensable injury which caused the need for additional medical treatment. In any event, the respondents argue that, because Dr. Smith released the claimant to his regular employment on September 13, termination of temporary disability benefits was proper under §8-42-105(3)(c), C.R.S. (1995 Cum. Supp.).
Under § 8-42-107(8)(b), the authorized treating physician who provides the primary care is required to make the initial determination as to when the claimant reaches MMI. If a party “disputes” the treating physician’s finding, and the parties are unable to agree on an IME physician, the Division appoints an IME physician for the purpose of determining MMI. The finding of the IME physician then binds the parties unless overcome “by clear and convincing evidence.” Section 8-42-107(8)(b); Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995); Aren Design, Inc. v. Becerra, 897 P.2d 902 (Colo.App. 1995). One of the purposes of this statutory scheme is to reduce the scope and frequency of litigation over the issue of MMI. Colorado AFL-CIO v. Donlon supra.
The question then becomes whether an IME physician’s opinion concerning the “cause” of a claimant’s need for additional medical treatment is binding unless overcome by clear and convincing evidence. In order to resolve this question, we apply the rule that the objective of statutory construction is to effect the legislative intent. Further, unless some absurdity is involved, words in statutes should be given their plain and ordinary meanings. Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993).
The term “maximum medical improvement,” which is used in §8-42-107(8)(b), is specifically defined by § 8-40-201(11.5), C.R.S. (1995 Cum. Supp.). Section 8-40-201(11.5) provides as follows:
“Maximum medical improvement” means 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 . . . (Emphasis added.)
Thus, § 8-40-201(11.5) expressly requires a physician to determine whether a physical impairment is the “result” of the industrial injury, and whether any treatment will “improve the condition.” In so doing, a physician is necessarily required to make judgments concerning the cause or causes of a claimant’s need for treatment. Further, before the enactment of § 8-40-201(11.5), the courts recognized that findings of MMI inherently involved questions of causation. Reynolds v. Industrial Claim Appeals Office, 794 P.2d 1080 (Colo.App. 1990) (MMI exists when the “underlying condition causing the disability” becomes stable and additional treatment will not improve the condition). Consequently, we hold that §8-42-107(8)(b) reflects a legislative intent requiring ALJs to defer to an IME physician’s opinion concerning the cause of a need for additional treatment unless the opinion is overcome by clear and convincing evidence at a hearing.
This conclusion is consistent with the statutory objective of reducing litigation over MMI by placing great weight on the opinion of the IME physician. Colorado AFL-CIO v. Donlon, supra. Similarly, this result is consistent with the Court of Appeals’ decision in Askew v. Sears Roebuck Co., 914 P.2d 416 (Colo.App. 1995), which held that an IME physician’s apportionment of permanent medical impairment must be upheld unless overcome by clear and convincing evidence. See §8-42-107(8)(c), C.R.S. (1995 Cum. Supp.).
Applying these principles here, we cannot ascertain from the ALJ’s order whether he utilized the correct legal standard in rejecting Dr. McCranie’s opinion that the industrial injury caused the need for additional treatment, and therefore, that the claimant was not at MMI. We agree with the claimant that the ALJ’s reference to a “reasonable” interpretation of the evidence suggests that the ALJ may have employed a preponderance standard and not the “clear and convincing” standard set forth in §8-42-107(8)(b). Thus, the findings are insufficient to support appellate review. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.).
In reaching this result, we should not be understood as expressing an opinion concerning whether or not Dr. McCranie’s opinion was overcome by clear and convincing evidence. This is a factual matter for resolution by the ALJ. See Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995).
We also reject the respondents’ argument that the ALJ’s order may be upheld on the ground that Dr. Smith released the claimant to regular employment on September 13, 1993. It is true that, under § 8-42-105(3)(c), temporary disability benefits end when the attending physician gives the claimant a release to return to regular employment. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995). However, it is also true that, where there is more than one attending physician, and the record reflects that these physicians have “conflicting opinions” concerning the claimant’s ability to return to work, the ALJ has the power to resolve the factual dispute. Burns v. Robinson Dairy, Inc. supra.
Here, the respondents stipulated that, if the ALJ determined that the claimant’s need for treatment was causally connected to the industrial injury, Dr. Fernandez would become an authorized treating physician. (Tr. p. 5). In a report dated October 31, 1994, Dr. Fernandez agreed with Dr. McCranie that the claimant needs physical therapy which she stated amounts to the “same basic treatment” as the “occupational therapy” recommended by Dr. McCranie. Furthermore, the report of Dr. Fernandez does not indicate that she released the claimant to regular employment.
If the ALJ were to find that Dr. McCranie’s MMI opinion was not overcome by clear and convincing evidence, Dr. Fernandez would be an authorized treating physician. Thus, it could be inferred from the report of Dr. Fernandez that she has not released the claimant to regular employment, and that the claimant needs physical therapy to return him to work. Therefore, the record presents a potential conflict between attending physicians concerning the claimant’s ability to perform regular employment. This conflict must be resolved by the ALJ in the event he determines that Dr. McCranie’s opinion was not overcome by clear and convincing evidence.
IT IS THEREFORE ORDERED that the ALJ’s order, dated December 22, 1994, 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
___________________________________ Kathy E. Dean
Copies of this decision were mailed September 7, 1995 to the following parties:
Gerol K. Fields, 3270 Fenton St., Denver, CO 80212
TAD Temporaries, 2480 W. 26th Ave., Denver, CO 80211
Pacific Employers Insurance Company, % CIGNA Co., Attn: John Bearss, P. O. Box 2941, Greenwood Village, CO 80150-0141
Julie D. Swanberg, Esq., 4582 S. Ulster, #906, Denver, CO 80237 (For Respondents)
Michael D. Brown, Esq., 5723 Yukon St., Arvada, CO 80002 (For Claimant)
By: __________________________