W.C. No. 3-105-407Industrial Claim Appeals Office.
September 12, 1995
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which ordered them to reinstate temporary disability benefits commencing October 21, 1994. We affirm.
The respondents contend that the ALJ was precluded from awarding temporary disability benefits because Dr. Patterson, the claimant’s authorized treating physician who provided the primary care, determined the claimant to be at maximum medical improvement (MMI) on October 21, 1994. We disagree.
Temporary disability benefits terminate upon the determination of MMI. Section 8-42-105(3)(a), C.R.S. (1995 Cum. Supp.); Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995). Section 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.), requires the initial determination of MMI to be made by the “authorized treating physician who has provided the primary care.” Furthermore, the primary care physician’s determination is binding unless the claimant obtains an independent medical examination (IME). Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995).
However, we have previously concluded that where the claimant has more than one “primary care” physician, the ALJ may resolve factual disputes between the physicians concerning whether the claimant has reached MMI Rohr v. Interim Health Care, W.C. No. 4-177-445, September 13, 1994 Murphy v. Lower Valley Hospital Association, W.C. No. 3-101-327, June 23, 1995. Insofar as the respondents argue that our decision i Johanningsmeier v. Swedish Medical Center, W.C. No. 4-115-315, September 30, 1994, corrected October 27, 1994, is inconsistent with our conclusions in Rohr, we disagree.
In Johanningsmeier, the insurer terminated the claimant’s temporary disability benefits based upon an authorized treating physician’s determination that the claimant reached MMI on June 4, 1993. Thereafter, the claimant began treating with another physician, who reported that the claimant was not at MMI. We determined that the IME provisions of §8-42-107(8)(b) are time sensitive, and are triggered upon the first determination of MMI by a “primary care” physician. Consequently, we ordered the ALJ to determine whether the physician who found the claimant to be at MMI on June 4, 1993, was then the claimant’s “primary care” physician. We also stated that if the June 4, 1993 determination of MMI was made by the primary care physician, the claimant could not circumvent the IME process by relying upon the contrary opinion of a physician who later began treating the claimant. See Murphy v. Lower Valley Hospital Association, supra (absence of MMI determination by a “primary care” physician who subsequently joined the chain of treatment did not relieve the claimant of the IME requirement to dispute an earlier determination of MMI).
We also note that the appellate issue in Johanningsmeier was not whether the claimant had multiple “primary care” physicians as of June 4, 1993, but whether the claimant was bound by the June 4, 1993 determination of MMI, where a physician who subsequently joined the chain of treating physicians, did not determine MMI. Furthermore, we expressly recognized that the Johanningsmeier record contained evidence of multiple treating physicians. To this extent, our order did not preclude the ALJ from finding that the claimant had more than one “primary care” physician as of June 4, 1993. Therefore, Johanningsmeier does not stand for the proposition that the claimant can only have one “primary care” physician.
Here, the ALJ determined that the claimant had two “primary care” physicians who treated his 1992 back injury. The ALJ found that Dr. Patterson is the “primary care” physician for the claimant’s orthopedic condition, and Dr. Leopold is the “primary care” physician for the claimant’s mental impairment. The ALJ further determined that Dr. Leopold began evaluation and treatment of the claimant on July 19, 1994, and continued to treat the claimant through December 2, 1994, when Dr. Patterson issued his opinion that the claimant reached MMI on October 21, 1994.
Consequently, unlike the circumstances in Johanningsmeier and Murphy, the ALJ’s findings reflect a determination that the claimant had two primary care physicians at the time of the initial determination of MMI. Because this is a plausible interpretation of the record it must be upheld. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
Moreover, it is undisputed that Dr. Leopold has not determined the claimant to be at MMI. Accordingly, the ALJ could and did, resolve the conflict between Dr. Leopoldt and Dr. Patterson by crediting Dr. Leopoldt’s opinion that the claimant requires further psychiatric treatment to cure or relieve the effects of the back injury. This resolution supports the ALJ’s conclusion that a primary care physician had not determined the claimant to be MMI. See Gelco Courier v. Industrial Commission, 702 P.2d 295
(Colo.App. 1985). Therefore, the ALJ did not err in concluding that Dr. Patterson’s determination of MMI did not entitle the respondents to terminate the claimant’s temporary disability benefits on October 21, 1994.
Alternatively, the respondents argue that the award is contrary to §8-42-107.5, C.R.S. (1995 Cum. Supp.), which states that:
“[N]o claimant whose impairment rating is twenty-five percent or less may receive more than sixty thousand dollars from combined temporary disability payments and permanent partial disability payments.”
In support, the respondents cite Dr. Patterson’s rating of the claimant’s impairment as 22 percent of the whole person, and the fact that the respondents admitted liability for combined temporary and permanent disability benefits in excess of $60,000. We reject this argument.
Under § 8-42-107(8)(c), C.R.S. (1995 Cum. Supp.), the claimant’s “impairment rating” is not determinable until the claimant reaches MMI Golden Animal Hospital v. Horton; Colorado AFL-CIO v. Donlon supra.
Because the initial determination of MMI must be made by the “authorized treating physician who has provided the primary care,” the claimant’s “impairment rating” for purposes of § 8-42-107.5 is not determinable where one of the primary care physicians has not determined the claimant to be at MMI. See Aren Design, Inc. v. Becerra, 897 P.2d 902 (Colo.App. 1995) Colorado AFL-CIO v. Donlon, supra; Wymer v. Donald B. Murphy Contractors, Inc., W.C. No. 3-101-889, September 2, 1994.
Here, the ALJ has determined as a matter of fact that the primary care physician for the mental component of the claimant’s injury has not determined the claimant to be at MMI. Accordingly, the “impairment rating” for the claimant’s psychological component of the injury is not determinable. Under these circumstances, Dr. Patterson’s impairment rating for the orthopedic component of the claimant’s injury is not dispositive of whether the claimant has sustained impairment of less than 25 percent of the whole person, and thus, it is premature to apply the provisions of § 8-42-107.5.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 25, 1995, 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 iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed September 12, 1995 to the following parties:
Martin L. Martinez, 968 Hwy 65, Austin, CO 81410
Meadow Gold Dairy Products, 1325 W. Oxford Ave., Englewood, CO 80110-4429
ESIS, Inc., P.O. Box 2941, Greenwood Village, CO 80150
Gudrun Rice, Esq., P.O. Box 3207, Grand Junction, CO 81502 (For Claimant)
Lynn P. Lyon, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)
BY: _______________________