W.C. No. 4-254-755Industrial Claim Appeals Office.
March 24, 1997
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Martinez (ALJ), which determined that the claimant did not reach maximum medical improvement (MMI), and assessed a penalty based on the Colorado Compensation Insurance Authority’s (CCIA) failure timely to admit or deny liability. We set the order aside in part, and affirm it in part.
The ALJ found that the claimant sustained a compensable right knee injury while employed by respondent Wilson Packing Shed (Wilson) on August 30, 1994. Apparently, the claimant was unable to continue work with Wilson. Nevertheless, Wilson filed a First Report of Injury indicating that the claimant was injured on August 30, 1994, and returned to work on August 31, 1994.
At the time of her injury with Wilson, the claimant held concurrent employment at Bethesda Nursing Home (Bethesda). The injury disabled the claimant from continuing in the Bethesda employment.
On September 29, 1994, Wilson sent a letter to the CCIA advising that the claimant reported missing work at “another job and was fired due to her injury.” This letter was received by the CCIA on October 3, 1994.
The ALJ found that the initial authorized treating physician providing primary care was Dr. Ritter. In August 1995, Dr. Ritter referred the claimant to Dr. Sheplay. Dr. Sheplay treated the claimant’s pain with a lumbar sympathetic block and trigger point injections. However, on November 1, 1995, Dr. Sheplay issued a report stating that the claimant had reached MMI with a fourteen percent lower extremity impairment. Dr. Sheplay added that the claimant would need twelve months of ongoing care “for follow-up visits, medication management and occasional trigger point injections as needed.”
Thereafter, Dr. Sheplay provided a number of injections between November 1995 and April 8, 1996. On April 8, Dr. Sheplay referred the claimant back to Dr. Ritter, who examined the claimant on April 11, 1996. Dr. Ritter stated that the “best idea would be essentially to put [the claimant] at MMI.” However, he also stated that “it would be a great idea to get [the claimant] into an in-patient pain program.”
The claimant underwent an evaluation at St. Mary’s Rehabilitation Center in May 1996. Dr. Thomas Curtin, Ph.D., opined that the claimant would benefit from a “multi-disciplinary team functional recovery process focused on increased functioning and reduced pain perception.”
Of further significance, the ALJ found that the respondents first admitted liability on May 19, 1995, for temporary partial disability benefits commencing October 4, 1994. In 1996, the respondents filed a Final Admission of Liability terminating the claimant’s right to temporary disability benefits as of November 1, 1995. The termination of temporary disability benefits was based on Dr. Sheplay’s determination that the claimant reached MMI on November 1.
At the hearing, the claimant sought to increase her admitted average weekly wage to include wages she earned in her employment with Bethesda. The ALJ granted this request, and found that the claimant was temporarily totally disabled commencing September 5, 1994.
Further, the ALJ rejected the respondents’ argument that he could not determine the date of MMI without requiring the claimant to undergo an independent medical examination (IME) under § 8-42-107(8), C.R.S. (1996 Cum. Supp.). The ALJ reasoned that, because the claimant’s permanent impairment falls under the schedule, § 8-42-107(8) “does not apply.”
The ALJ then held that Dr. Sheplay’s opinion that the claimant reached MMI on November 1, 1995, was inconsistent with his continued treatment of the claimant, and his referral back to Dr. Ritter in April 1996. Moreover, the ALJ found that Dr. Ritter’s suggestion that the claimant be referred to a pain management program was inconsistent with a determination that the claimant reached MMI on April 11, 1996. Thus, the ALJ concluded that the claimant was entitled to continuing temporary disability benefits.
In addition, the ALJ penalized the CCIA one day’s compensation for each day from October 23, 1994 until May 19, 1995. Relying on § 8-43-203(1), C.R.S. (1996 Cum. Supp.), the ALJ found that, as of October 3, 1994, the CCIA was aware that the claimant was asserting the existence of a lost time injury due to her inability to work for Bethesda. Thus, the ALJ concluded that the CCIA was obliged to admit or deny liability by October 23, 1994.
I.
On review, the respondents contend that the ALJ erred in determining that the IME procedures currently codified at §8-42-107(8)(b), C.R.S. (1996 Cum. Supp.), do not apply to “extremity injuries.” To the contrary, the respondents argue that the IME procedures apply to all injuries. We agree with the respondents, and therefore, remand the matter for further proceedings concerning the claimant’s entitlement to temporary disability benefits after November 1, 1995.
Initially, we note that § 8-42-107(8)(a), C.R.S. (1996 Cum. Supp.) was significantly amended in 1996. The statute now expressly provides that the IME procedures for determination of MMI “shall be available in cases of injuries set forth in the schedule in subsection (2) of this section.” This amendment applies to “determinations of maximum medical improvement made on or after” July 1, 1996. 1996 Colo. Sess. Laws, ch. 112 at 457.
However, we need not decide whether this provision applies in cases such as this where Dr. Sheplay’s MMI determination was made in November 1995, but the ALJ’s MMI determination was made in September 1996. Even if we must apply prior law, we hold that the ALJ erred in concluding that the IME procedures do not apply to determinations of MMI involving scheduled injuries.
As the respondents point out, we have previously held that former § 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.), applies to all determinations of MMI, regardless of whether the claimant sustained a scheduled or non-scheduled permanent impairment See Lopez v. Westin Hotel, W.C. No. 4-168-893, July 5, 1996; Delants v. Federal Reserve Bank of Kansas City,
W.C. No. 4-240-793, June 13, 1996. The following language from our decision in Lopez is pertinent:
“In Delants v. Federal Reserve Bank of Kansas City . . . we stated that the IME provisions of subsection (8)(b) apply to cases involving scheduled impairments as well as whole person impairments. In support, we cited Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995), and Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995), for the proposition that subsection (8)(b) governs terminations of temporary disability benefits under § 8-42-105(3)(a). We noted that neither decision held that the IME procedure for determining MMI depends on whether or not the treating physician opines that the claimant has a scheduled or whole person impairment. In fact, in Story, the treating physician opined that the claimant had no permanent impairment whatsoever.
Moreover, Delants held that, although the statutory scheme is ambiguous, the statute as a whole does not indicate that the procedures for determining MMI depend on whether or not a claimant’s impairment is scheduled or whole person. Specifically, we stated that the definition of MMI, found at § 8-40-201(11.5), C.R.S. (1995 Cum. Supp.), does not turn on the type of permanent impairment. Further, we stated that the IME procedure does not interfere with the “calculation” of whole person impairments, and therefore, its application to non-scheduled impairments is not inconsistent with § 8-42-107(8)(a), C.R.S. (1995 Cum. Supp.).”
Subsequent to our orders in Lopez an Delants, the court of appeals issued its decision i Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996). In that case, the claimant was diagnosed with an occupational disease resulting in “problems to his upper extremities.” The authorized treating physician initially placed the claimant at MMI on March 9, 1994, but subsequently changed the MMI date to December 1, 1994, so as to agree with an examining specialist. The court indicated that the determination of MMI was governed by § 8-42-107(8)(b), regardless of the fact that the claimant’s physical problems involved his upper extremities. However, the court concluded that an IME was not necessary in Blue Mesa because the treating physician retracted his initial determination of MMI prior to initiation of the IME process. In Blue Mesa, the treating physician’s retraction of the initial MMI date presented a “question of fact for the ALJ concerning whether claimant was at MMI on March 9 or December 1, 1994.” Id. at 833.
Consequently, we decline to depart from our prior determination that an IME is a prerequisite to an attack on the authorized treating physician’s determination of MMI, regardless of whether the impairment is scheduled or whole person. The only exceptions to this rule exist where there is a factual dispute concerning whether or not the authorized “physician made a determination of MMI, and the issuance of conflicting or ambiguous opinions concerning whether the claimant has reached MMI.” Blue Mesa Forest v. Lopez, supra.
Here, the ALJ held that he was entitled to disregard Dr. Sheplay’s November 1, 1995 MMI determination, and make his own determination concerning MMI, because the claimant’s permanent impairment was on the schedule. This is an incorrect application of the law, and therefore, the matter must be remanded for entry of a new order applying the correct legal standards. The ALJ may not interfere with Dr. Sheplay’s November 1, 1995 MMI determination unless he determines that there are conflicting opinions between multiple treating physicians, or that Dr. Sheplay has retracted his opinion concerning MMI.
In reaching this result, we recognize the claimant’s argument that the ALJ resolved conflicts in the evidence concerning Dr. Sheplay’s opinion, and the opinion of Dr. Ritter. However, we understand the ALJ to have determined that §8-42-107(8) was not relevant to his decision, and therefore, the ALJ may not have afforded the proper deference to the opinions of Dr. Sheplay. In this regard, we note that the provision of medical treatment after MMI is not necessarily inconsistent with the existence of MMI. See Story v. Industrial Claim Appeals Office, supra.
We also note that the ALJ’s reliance on our order i Mestas v. Curtice Burns Meat Snacks, Inc. is misplaced. That case concerned the IME procedures for determination of permanent impairment under § 8-42-107(8)(c), C.R.S. (1996 Cum. Supp.), not § 8-42-107(8)(b).
II.
The respondents next contend that the ALJ erred in assessing a penalty for the period October 23, 1994 to May 19, 1995. The respondents argue that the CCIA had no duty to admit or deny liability under § 8-43-203(1) based on its awareness that the claimant missed more than three shifts or three calendar days in her “concurrent employment” with Bethesda. Relying on §8-42-103(1)(a), C.R.S. (1996 Cum. Supp.), the respondents reason that no disability indemnity is payable unless the claimant missed three days work in her “regular employment.” We are not persuaded.
Section 8-43-203(1) provides that respondents must admit or deny liability “within twenty days after notice or knowledge of an injury to an employee which disables said employee for more than three shifts or three calendar days.” If an insurer fails to admit or deny liability under this statute, a penalty of up to one day’s compensation for each day’s failure to notify may be imposed under § 8-43-203(2)(a).
The respondents’ argument notwithstanding, nothing in §8-43-203(1) requires that the “disability” of three shifts or three calendar days must occur in the employment which caused the injury. To the contrary, it is now well established that a claimant’s average weekly wage may take into account wages earned in “concurrent employment” for purposes of calculating the claimant’s entitlement to temporary total disability benefits under § 8-42-105(1), C.R.S. (1996 Cum. Supp.), or temporary partial disability benefits under § 8-42-106(1), C.R.S. (1996 Cum. Supp.). See Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo.App. 1988); St. Mary’s Church Mission v. Industrial Commission, 735 P.2d 902
(Colo.App. 1986).
Moreover, this conclusion is consistent with the statutory purpose underlying § 8-43-203(1). The statute represents a procedural safeguard designed to notify claimants that they are involved in “a situation with legal ramifications” prior to the time the respondents’ duty to make payment is established Smith v. Myron Stratton Home, 676 P.2d 1196 (Colo. 1984). Since loss of wages resulting from “concurrent employment” may form the basis of compensable indemnity payments, it follows that claimants should be advised of the respondents’ position concerning their entitlement to compensation based on loss of wages from concurrent employment.
We therefore perceive no error in the ALJ’s assessment of the penalty. The CCIA had notice on October 3, 1994, that the claimant was alleging lost time as a result of her inability to perform her concurrent employment. Therefore, the CCIA was obliged to admit or deny liability on or before October 23, 1994.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 3, 1996, is set aside insofar as it ordered the respondents to pay temporary disability benefits subsequent to November 1, 1995. The matter is remanded for entry of a new order concerning this issue consistent with the views expressed herein.
IT IS FURTHER ORDERED that the ALJ’s order is affirmed insofar as it assessed a penalty for failure timely to admit or deny liability.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacatethe Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, Colorado 80203, by filing a petition toreview with the court, with service of a copy of the petitionupon 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. (1996 Cum.Supp.).
Copies of this decision were mailed March 24, 1997 to the following parties:
Roberta Houlton, P.O. Box 502, Paonia, CO 81428
Gilbert Wilson Ray Wilson ET, d/b/a Wilsons High Country Fruit, P.O. Box 1300 Paonia, CO 81428-1300
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)
Gudrun Rice, Esq., P.O. Box 3207, Grand Junction, CO 81502 (For the Claimant)
Thomas W. Blake, Esq., 744 Horizon Ct., Ste. 360, Grand Junction, CO 81506 (For the Respondents)
By: _______________________________