W.C. No. 4-175-564Industrial Claim Appeals Office.
October 4, 1996
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Gandy (ALJ) concerning the claimant’s request for temporary disability benefits and penalties. We affirm the order in part, set aside the order in part, and remand the matter to the ALJ for entry of a new order.
The claimant suffered a compensable back injury on May 12, 1993. The injury was treated by Dr. Lloyd, who referred the claimant to Dr. Dwyer. On October 10, 1994, Dr. Dwyer reported that the claimant was not a candidate for surgical intervention, and determined that the claimant reached maximum medical improvement (MMI) with permanent medical impairment of ten percent of the whole person. Thereafter, the respondents filed a Final Admission of Liability terminating temporary disability benefits effective October 10, 1994, and admitting liability for medical impairment benefits consistent with Dr. Dwyer’s rating.
On July 19, 1995, the claimant underwent a Division-sponsored independent medical examination (IME) by Dr. Leimbach on the issues of MMI and medical impairment. Dr. Leimbach reported that “the claimant may have suffered a recent worsening or exacerbation of his condition as he does relate an increased worsening of his pain over the past three or four days to what he relates as the same level as when he initially injured himself on May 12, 1993,” and recommended further consultation concerning whether the claimant should undergo surgical intervention. Further, on the “IME Examiner’s Information Sheet,” Dr. Leimbach answered “no” to the question of whether he “agreed with the treating physician’s date of MMI.”
During the same time period, the claimant was examined by Dr. Frank, who assumed Dr. Lloyd’s caseload. In a report dated July 24, 1995, Dr. Frank noted that the claimant’s condition had deteriorated since “the last visit.” On August 17, 1995, the respondents filed a General Admission of Liability which reinstated temporary total disability benefits effective July 24, 1995.
Because Dr. Leimbach disagreed with Dr. Dwyer’s determination of MMI, the claimant requested the reinstatement of temporary total disability benefits retroactive to October 10, 1994. The claimant also asserted that the insurer failed to apply for a hearing or admit liability “consistent with” Dr. Leimbach’s MMI determination within twenty days of receiving Dr. Leimbach’s report, as required by the Rules of Procedure, Part IV(N)(4)(c), 7 Code Colo. Reg. 1101-3 at 7. Therefore, the claimant sought the imposition of penalties in connection with the respondents’ failure to comply with Rule IV(N)(4)(c).
The ALJ interpreted Dr. Leimbach’s IME report as evidencing an opinion that the claimant experienced a recent deterioration of his condition from the industrial injury, and that the claimant was no longer at MMI as a result of that deterioration. Consequently, the ALJ found that the claimant was at MMI up to July 1995, and denied the request for temporary total disability benefits during the period October 10, 1994 to July 1995. The ALJ also determined that there was no violation of Rule IV(N)(4)(c). Instead, the ALJ found that the respondents’ August 17 admission for the payment of temporary total disability benefits commencing July 24, 1995, was consistent with the July 1995 findings of Dr. Leimbach and Dr. Frank.
On review, the claimant first contends that the ALJ erred in failing to award temporary total disability benefits for the period October 10, 1994 through July 23, 1995. We disagree concerning the claim for temporary disability benefits prior to July 1, 1995. However, we conclude that the ALJ’s findings of fact are insufficient to permit appellate review of the claimant’s argument that the ALJ erroneously denied the claim for temporary disability benefits commencing July 1, 1995. Consequently, we remand the matter to the ALJ for additional findings and a new order on that issue. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.).
Initially, we note that Dr. Leimbach’s report is subject to conflicting interpretations. Therefore, it was the sole prerogative of the ALJ to resolve the conflict, and we must uphold the ALJ’s determination if supported by substantial evidence in the record. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995).
Contrary to the claimant’s argument, the ALJ’s finding that the claimant was at MMI until July 1995 is a plausible interpretation of Dr. Leimbach’s report. The ALJ’s interpretation is also consistent with the claimant’s testimony that his condition worsened shortly before Dr. Leimbach’s examination. (Tr. pp. 18, 19). Furthermore, the ALJ’s finding is buttressed by Dr. Lloyd’s records through April 9, 1995, which state that the claimant “remains at MMI.” Therefore, we must uphold the ALJ’s finding that the claimant was at MMI until July 1995, and it is immaterial that the report could have been interpreted differently. See Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Moreover, the ALJ’s findings support the order denying the claim for temporary disability benefits prior to July 1995.
In upholding this portion of the ALJ’s order, we note that the receipt of additional treatment to maintain MMI or to prevent a deterioration of the claimant’s condition is not necessarily inconsistent with a finding of MMI. Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). In this case, Dr. Lloyd’s November 18, 1994 report indicates that he authorized additional treatment “to maintain MMI.” Consequently, the fact that the claimant received treatment at the Wardenberg Student Health Center subsequent to October 10, 1994, is not necessarily inconsistent with the ALJ’s finding that the claimant was at MMI between October 10, 1994 and July 1995.
However, the ALJ’s finding that the claimant was no longer at MMI due to the July 1995 deterioration of his condition is insufficient to support the ALJ’s order denying the claim for temporary disability benefits for the period July 1, 1995 through July 23, 1995. In other words, the ALJ’s findings do not resolve the claimant’s contention that Dr. Leimbach found that the claimant was no longer at MMI as of July 19, 1995, when he conducted his IME examination.
On remand, the ALJ shall determine the specific date the claimant was no longer at MMI, and shall articulate the evidence which supports that determination. Based upon that determination, the ALJ shall also enter a new order concerning the claim for temporary total disability benefits during the period July 1, 1995 through July 23, 1995.
For the same reasons, we are unable to ascertain whether the ALJ properly determined that the respondents’ August 17 Admission was “consistent with” Dr. Leimbach’s findings on the issue of MMI. Webster’s New College Dictionary, (1995), defines the term “consistent” as being in “agreement” or “uniform.” Thus, the plain language of Rule IV(N)(4)(c) requires that the respondents’ admission of liability be uniform with the IME physician’s finding of MMI.
The claimant concedes that the respondents’ August 17, 1995 admission, which provides for the reinstatement of temporary total disability benefits commencing July 24, 1995, is consistent with Dr. Frank’s July 24 report. However, we are unable to ascertain from the ALJ’s findings of fact whether the reinstatement of benefits commencing July 24 is consistent with Dr. Leimbach’s opinion. The resolution of this issue is dependent on the date, according to Dr. Leimbach that, the claimant was no longer at MMI, and thus, the prior basis for terminating temporary disability benefits no longer existed See § 8-42-105(3)(a), C.R.S. (1996 Cum. Supp.). Consequently, on remand the ALJ shall issue a new order concerning whether the respondents violated Rule IV(N)(4)(c), and if so, whether they are subject to the imposition of penalties based upon the violation. See Pueblo School District No. 70 v. Toth, ___ P.2d ___ (Colo.App. No. 95CA0189, January 25, 1996).
In view of our remand it is premature to address the claimant’s remaining arguments. Therefore, we do not consider the claimant’s contention that the ALJ erroneously considered the contents of a letter from claimant’s counsel dated July 31, 1995.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 15, 1996, is affirmed insofar as it denied the claim for temporary total disability benefits prior to July 1, 1995.
IT IS FURTHER ORDERED that the ALJ’s order is set aside insofar as it denied the claim for temporary total disability benefits commencing July 1, 1995, and denied the claim for penalties. The matter is remanded to the ALJ for the entry of a new order on these issues consistent with the views expressed herein.
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed October 4, 1996 to the following parties:
Steven Kanengiser, 4080 Dawn Court, Boulder, CO 80304
Tina Valdez, University of Colorado, Risk Management/Workers’ Compensation, Campus Box 381, Boulder, CO 80309
Regina Celi, University of Colorado Insurance Pool, 4840 Pearl E. Circle, Ste. 103, Boulder, CO 80309
Ruth K. Irvin, Esq., 5353 Manhattan Cir., Ste. 101, Boulder, CO 80303 (For the Claimant)
Mark H. Dumm, Esq. Bernard Woessner, Esq., 3900 E. Mexico Ave., Ste. 1000, Denver, CO 80210 (For the Respondents)
BY: _______________________