W.C. No. 4-522-504.Industrial Claim Appeals Office.
August 21, 2003.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated March 5, 2003. We affirm.
In 2000, the claimant suffered an admitted injury. On March 8, 2002, Dr. Labosky opined the claimant was at maximum medical improvement (MMI) for his carpal tunnel syndrome (CTS) surgeries, but not his bilateral shoulder impingement and left cubital tunnel syndrome. On September 16, 2002, Dr. Labosky issued a new determination of MMI and assigned a permanent impairment rating based on 14 percent impairment to the right upper extremity. This rating converts to 9 percent whole person impairment. Dr. Labosky also assigned 12 percent impairment to the left upper extremity, which converts to 7 percent whole person impairment.
The respondents filed a Final Admission of Liability which terminated temporary disability benefits and admitted liability for scheduled disability benefits based on Dr. Labosky’s extremity ratings. The claimant timely objected and applied for a hearing on the issue of MMI, based upon his assertion that Dr. Labosky did not place him at MMI for the psychological injury. The claimant also requested medical impairment benefits based on whole person impairment.
The respondents disputed the claimant’s interpretation of Dr. Labosky’s report. Neither party requested a Division-sponsored independent medical examination (DIME).
The ALJ found the September 16 medical report reflected Dr. Labosky’s opinion the claimant reached MMI for all compensable components of the industrial injury. Further, in the absence of a DIME, the ALJ determined he lacked jurisdiction to hear the claimant’s challenge to the accuracy of Dr. Labosky’s opinion. The ALJ also determined that Dr. Labosky did not purport to assign a rating for the claimant’s psychological injury. Under these circumstances, the ALJ determined the issue of permanent impairment was not ripe for adjudication. Consequently, the ALJ vacated the claimant’s application for hearing and reserved all other issues for future determination.
The claimant’s Petition to Review alleged the ALJ’s denial of benefits is not supported by the facts or the applicable law. In support, the claimant contends the “primary” treating physician for the industrial injury was Dr. Byrne, not Dr. Labosky. The claimant also contends that neither Dr. Byrne nor Dr. Marten placed the claimant at MMI for his psychological injury. Therefore, the claimant argues the ALJ erroneously found him to be at MMI. However, the claimant has not filed a brief in support of the Petition to Review. Consequently, the effectiveness of our review is limited. See Ortiz v. Industrial Commission, 734 P.2d 642
(Colo.App. 1986).
Under former § 8-42-107(8)(b) C.R.S. 1995, the initial determination of MMI is to be made by an “authorized treating physicia who has provided the primary care.” (Emphasis added). However, this 2000 injury is governed by the 1996 amendments to § 8-42-107(8)(b), which provide that the initial determination of MMI made by an authorized
treating physician (emphasis added). See 1996 Colo. Sess. Laws, ch. 112 at 456 (effective for MMI determinations after July 1, 1996).
“Authorization” refers to the physician’s legal status to treat the injury at the respondents’ expense. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997). Whether or not a physician is an authorized treating physician is generally a question of fact for the ALJ which must be upheld if supported by substantial evidence in the record See Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996); Popke v. Industrial Claim Appeals Office, supra.
Here, the claimant has not provided a transcript of the hearing on March 5, 2003. Under these circumstances, we are required to presume there is substantial evidence in the record to support the ALJ’s determination that Dr. Labosky is an authorized treating physician. See Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).
Further, § 8-42-107(8)(b)(II), C.R.S. 2002, provides that the authorized treating physician’s opinion on MMI is binding, and the parties may not litigate the issue of MMI, unless the party disputing the authorized treating physician’s determination of MMI obtains a DIME. Town of Ignacio v. Industrial Claim Appeals Office, 70 P.3d 513 (Colo.App. 2002); Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000); Postlewait v. Midwest Barricade, 905 P.2d 21
(Colo.App. 1995). This is true because the purpose of a DIME under §8-42-107(8)(b)(II) is to make an independent determination of whether the claimant reached MMI.
Here, the time limit for the parties to request a DIME expired prior to the date of the ALJ’s order. See § 8-42-107.2(2)(A), C.R.S. 2002. Thus, the ALJ correctly determined he lacked jurisdiction to adjudicate the accuracy of Dr. Labosky’s opinion on MMI.
In reaching our conclusions, we do not disagree with the claimant’s assertion that a DIME is not a prerequisite to the resolution of a factual dispute concerning whether an authorized treating physician has determined the claimant to be at MMI. However, in Town of Ignacio v. Industrial Claim Appeals Office, supra, the court held that ALJs have no jurisdiction to resolve conflicting opinions between authorized treating physicians on the issue of MMI in the absence of a DIME. It follows that the ALJ did not err in failing to resolve the conflict between Dr. Labosky, Dr. Marten, and Dr. Byrne on the issue of MMI. Moreover, the ALJ’s findings support the order vacating the application for hearing.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 5, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Dona Halsey
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. 2002. 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 August 21, 2003 to the following parties:
Walter Maravi, 1602 Apache Trail, Colorado Springs, CO 80906
The Brown Schools, Inc., 2135 Southgate Rd., Colorado Springs, CO 80906
Atlantic Mutual, One Embarcadero Center, #900, San Francisco, CA 94111
Steven R. Waldmann, Esq., 331 N. Circle Dr., #201, Colorado Springs, CO 80909-6255 (For Claimant)
Richard M. Lamphere, Esq., 111 S. Tejon St., #700, Colorado Springs, CO 80903 (For Respondents)
BY: A. Hurtado