W.C. No. 4-130-048Industrial Claim Appeals Office.
November 22, 1995
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Wells (ALJ) which awarded the claimant continuing temporary total disability benefits from December 17, 1992. We affirm.
The ALJ found, and the respondents admitted, that the claimant sustained a compensable injury in April 1991. This injury was apparently in the nature of a cumulative trauma disorder which affected the claimant’s upper extremities and neck.
One of the claimant’s treating physicians, Dr. Tyler, opined that the claimant reached maximum medical improvement (MMI) on or about December 18, 1992. The ALJ found that Dr. Tyler rendered this opinion after the claimant completed treatment at a pain clinic and returned to modified work for the employer.
The claimant testified that she quit work in December 1992 because she was unable to tolerate the pain and the job modifications were ineffective in alleviating her symptoms. Thereafter, the claimant sought treatment from numerous physicians who suggested various treatments including surgery and nerve blocks.
The claimant was also examined by Dr. Hall. Dr. Hall opined that the claimant was not at MMI and recommended additional treatments including education concerning pain, a short course of physical therapy, and treatment of the claimant’s “mood disturbance.” Dr. Hall explained that the claimant’s previous pain clinic treatment had not been as effective as desired because of the “unanswered questions and thoughts of surgery and thoughts of not doing surgery.” (Hall depo. pp. 11-12).
Under these circumstances, the ALJ rejected the respondents’ assertion that the claimant reached MMI in December 1992. In so doing, he credited the claimant’s testimony, as well as the opinions of Dr. Hall.
On review, the respondents contend that the ALJ erred in finding that the claimant was not at MMI between December 17, 1992 and December 8, 1994. In essence, the respondents argue that the ALJ should have credited Dr. Tyler’s opinion concerning MMI and determined that the claimant remained at MMI until additional treatment was provided at the suggestion of Dr. Hall. We reject this argument.
Under the law applicable to this claim, MMI exists when the underlying condition causing the disability becomes stable and nothing further in the way of medical treatment will improve the condition. Gonzales v. Industrial Claim Appeals Office, 905 P.2d 16 (Colo.App. 1995); Reynolds v. Industrial Claim Appeals Office, 794 P.2d 1080 (Colo.App. 1990). The determination of MMI is a factual question for resolution by the ALJ. Gonzales v. Industrial Claim Appeals Office, supra.
Because the determination of MMI is factual, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). In applying this standard, we are obliged to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences which he drew from the evidence. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). Further, it is the sole prerogative of the ALJ to assess the probative value of the medical evidence. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The respondents’ argument notwithstanding, there is substantial evidence to support the ALJ’s determination that the claimant did not reach MMI in December 1992. As stated by Dr. Hall, the record suggests that there was substantial confusion concerning the proper treatment of the claimant’s condition in December 1992 and during the following year. Due to this confusion, the claimant did not obtain maximum benefit from her attendance at the pain clinic in November 1992. Moreover, Dr. Hall recommended a course of additional therapy which he believed would serve to improve the claimant’s condition. Consequently, the ALJ could properly conclude that the claimant’s condition was not stable in December 1992, and that she needed additional treatment.
It is true that some evidence in the record, and inferences to be drawn therefrom, would support a contrary finding. However, we may not substitute our judgment for that of the ALJ on this factual issue. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
The claimant argues that the respondents’ appeal was frivolous, and therefore, we should award attorney fees and costs. However, prior to the enactment of § 8-43-301(14), C.R.S. (1995 Cum. Supp.), we had no authority to award attorney fees and costs. Because § 8-43-301(14) was enacted as part of Senate Bill 91-218, it applies only to injuries incurred on or after July 1, 1991. See Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992). Here, the claimant’s injury occurred in April 1991, and therefore, we are without authority to award attorney fees.
IT IS THEREFORE ORDERED that the ALJ’s order, dated January 19, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed November 22, 1995 to the following parties:
Deanna L. Olmstead, 929 Arcturus, #5-D, Colorado Springs, CO 80906
Atmel Corp., 1150 E. Cheyenne Mtn. Blvd., Colorado Springs, CO 80906
Wausau Insurance Companies, Attn: Mark Miller, P.O. Box 419157, Kansas City, MO 64141-6157
William M. Sterck, Esq., 679 Grant St., Denver, CO 80203
(For the Respondents)
Michael W. McDivitt, Esq. K. Machelle Gielarowski, Esq., 90 S. Cascade, Ste. 1490, Colorado Springs, CO 80903
(For the Claimant)
By: _______________________