W.C. No. 4-209-155Industrial Claim Appeals Office.
April 4, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Wheelock (ALJ), which determined that the claimant reached maximum medical improvement (MMI) and awarded permanent medical impairment benefits under the schedule of disabilities. We affirm.
The ALJ found that the claimant sustained a wrist injury on June 23, 1993. The authorized treating physicians for the injury were Dr. Pise and Dr. Hall. Dr. Pise opined that the claimant reached MMI on January 20, 1994, and suffered a right upper extremity impairment of ten percent. Dr. Hall opined that the claimant reached MMI on February 23, 1994, and had a twenty-three percent right upper extremity impairment.
Subsequently, Dr. Deverell conducted a Division-sponsored independent medical examination (IME). Dr. Deverell opined that the claimant reached MMI on January 20, 1994 with a twenty-six percent upper extremity impairment.
At the hearing, the claimant produced a report from Dr. Michelli, Ph.D., which stated that the injury caused “an adjustment disorder with mixed emotional features.” Dr. Michelli recommended that the claimant undergo “education and non-invasive pain management strategies and cognitive-behavioral interventions for mood stabilization.”
Before the ALJ the claimant contended that, in view of Dr. Michelli’s report, he was not at MMI. However, the ALJ found that Dr. Michelli was not an “authorized treating physician,” and that “none of the other doctors noted any psychological problem.” Therefore, the ALJ upheld the opinion of the IME physician that the claimant reached MMI on January 20, 1994, and that he has a permanent medical impairment of twenty-six percent of the right upper extremity.
On review, the claimant asserts that the ALJ had authority, independent of the treating and IME physicians, to determine whether there was a “psychological injury” caused by the industrial wrist injury. He further argues that, under the circumstances present here, the ALJ’s determination of MMI was premature. We perceive no error.
Under § 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.), the treating physician who provides the primary care makes the initial determination of MMI. If either party disputes the primary physician’s opinion, it may request an IME, and the finding of the IME physician may be overcome “only by clear and convincing evidence.” The purpose this statutory scheme is to reduce litigation over the attainment of MMI and issues which emanate from that determination. Colorado AFL-CIO v. Donlon, ___ P.2d ___ (Colo.App. No. 93CA1118, 93CA1392, June 15, 1995).
The Workers’ Compensation Act defines MMI. Section 8-40-201(11.5), C.R.S. (1995 Cum. Supp.) states as follows:
“`Maximum medical improvement’ means a point in time when any medically determinable physical or mental impairment as a result of the injury has become stable and when no further treatment is reasonably expected to improve the condition. The requirement for future medical maintenance which will not significantly improve the condition or the possibility of improvement or deterioration resulting from the passage of time shall not affect a finding of maximum medical improvement. The possibility of improvement or deterioration resulting from the passage of time alone shall not affect a finding of maximum medical improvement.”
It is apparent that § 8-40-201(11.5) requires the treating physician, and the IME physician if necessary, to make a medical determination concerning whether or not the claimant has “physical or mental impairment” resulting from the injury, and if so, whether the condition has become stable. It follows that an ALJ is not free to make an independent determination concerning whether or not the claimant has sustained a “psychological injury” as a result of the compensable event. To the contrary, the ALJ is required to defer to the IME physician’s opinions concerning the nature and extent of the injuries and the need for treatment. See Story v. Industrial Claim Appeals Office, 910 P.2d 80
(Colo.App. 1995); Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995).
Here, the ALJ found that neither the treating physician nor the IME physician diagnosed any “psychological injury” in connection with the industrial injury. Thus, the ALJ could not make an independent determination that the claimant had such an injury. Neither was the ALJ required to conclude that Dr. Michelli’s opinion constituted “clear and convincing” evidence that the claimant had a psychological injury. Dr. Michelli was not an authorized treating physician and his opinion was entitled only to such weight as the ALJ chose to give it. Postlewait v. Midwest Barricade, supra.
We recognize the claimant’s argument that Dr. Deverell, as the IME physician, admitted that he had no “opinion” concerning the claimant’s alleged psychological impairment. However, Dr. Deverell stated that, as an IME physician, he would have made a referral for treatment if he had noted that the claimant was suffering from psychological impairment. Further, Dr. Deverell stated that he did not perceive psychological elements as a “significant problem” in this case. (Deverell depo. p. 12).
The ALJ found Dr. Deverell’s opinion credible, and thus, implicitly adopted Dr. Deverell’s opinion that the claimant did not present symptoms of psychological impairment at the time of the IME. Under the circumstances the record contains evidence from which the ALJ could logically infer that Dr. Deverell did not find any psychological injury.
IT IS THEREFORE ORDERED that the ALJ’s order, dated June 21, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed April 4, 1996 to the following parties:
Ryan E. Mendonca, 2133 Silent Rain Dr., Colorado Springs, CO 80919
Sisters of St. Francis, 7665 Assisi Heights, Colorado Springs, CO 80919
Colorado Compensation Insurance Authority, Attn: Marjorie J. Long, Esq. (Interagency Mail)
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349
(For the Claimant)
By: _____________________