W.C. No. 4-170-261Industrial Claim Appeals Office.
February 21, 1997
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Wheelock (ALJ), which awarded temporary disability benefits. We affirm.
The claimant suffered a compensable injury in 1992, which was subsequently diagnosed as a cumulative trauma disorder to the upper extremities. In 1994 the claimant began treating with Dr. Tyler, who later referred the claimant to Kevin Murphy Ph.D. (Murphy) for evaluation and psychological treatment. Murphy discharged the claimant from treatment on May 30, 1995. On August 2, 1995, Dr. Tyler determined the claimant to be at maximum medical improvement (MMI) with permanent impairment of 29 percent of the left upper extremity. The respondent terminated temporary total disability benefits based on Dr. Tyler’s MMI determination.
However, due to a “digression in emotional status with exacerbation of left upper extremity pain,” Dr. Tyler reported that the claimant was no longer at MMI as of August 28, 1995. The respondent reinstated temporary disability benefits commencing August 28, 1995.
Thereafter, the claimant received further treatment at the Pikes Peak Pain Program (Pikes Peak). On November 17, 1995 the claimant was discharged from Pikes Peak. At that time Murphy and Dr. Tyler reported that the claimant reached MMI, and that the prior impairment rating was unchanged. Accordingly, the respondent terminated temporary disability benefits.
In a report dated February 8, 1996, Dr. Tyler indicated that he agreed with a recommendation that the claimant undergo a right deQuervain’s release. Dr. Tyler also stated that the claimant was “no longer at MMI.” Consequently, the respondent reinstated temporary disability benefits effective February 8, 1996.
The claimant requested temporary disability benefits for the periods August 2, 1995 to August 28, 1995, and November 16, 1995 through February 8, 1996. The respondent denied liability on grounds that Dr. Tyler, the claimant’s authorized treating physician who provided the primary care, determined the claimant to be at MMI during these periods.
Insofar as pertinent, the ALJ found that the claimant has two “primary care” physicians. Specifically, she determined that Dr. Tyler is the authorized treating physician who provided primary care for the physical component of the claimant’s injury, and that Murphy is the primary treating physician for the psychological component of the injury.
The ALJ found that Murphy did not determine the claimant to be at MMI as of August 2, 1995. Further, she determined that “At no time did Dr. Tyler opine maximum medical improvement in regard to the right upper extremity.” Consequently, the ALJ determined that the claimant had not been placed at MMI for all of components of her injury during the disputed periods. Under these circumstances, the ALJ concluded that Dr. Tyler’s August 2, 1995 and November 16, 1995 MMI determinations were insufficient to terminate temporary disability benefits, and therefore, the ALJ ordered the respondent to pay the disputed benefits.
I.
On review, the respondent contends that the claimant’s request for additional temporary disability benefits is a constructive challenge to Dr. Tyler’s MMI determinations, and that the ALJ lacked authority to award additional temporary disability benefits because the claimant failed to request an independent medical examination (IME) under the provisions of § 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.) [substantially amended in 1996]. We disagree.
As argued by the respondent, § 8-42-105(3)(a), C.R.S. (1996 Cum. Supp.), provides for the termination of temporary disability benefits when the claimant reaches MMI. Burns v. Robinson Dairy, Inc., ___ P.2d ___ (Colo.App. No. 95CA0131, June 15, 1995); McKinley v. Bronco Billy’s, ___ P.2d ___ (Colo.App. No. 95CA0150, August 24, 1995). The exclusive method for determining MMI is set forth in § 8-42-107(8)(b), which provides that the initial MMI determination shall be made by the “authorized treating physician who has provided the primary care,” and if either party “disputes” that determination, the claimant must undergo an IME. The statute also states that “a hearing on this matter shall not take place” until the IME physician’s report has been filed with the Division of Workers’ Compensation. Colorado AFL-CIO v. Donlon, 914 P.2d 396
(Colo.App. 1995); Aren Design, Inc. v. Becerra, 897 P.2d 902 (Colo.App. 1995).
However, an IME is not a prerequisite to an ALJ’s resolution of a factual dispute concerning the identity of the “primary care” physician, and whether that physician determined the claimant to be at MMI during the disputed period. See Blue Mesa Forest v. Lopez, ___ P.2d ___ (Colo.App. No. 96CA0436, October 24, 1996). Similarly, where the primary treating physician has issued conflicting opinions on the issue of MMI, an IME is not required prior to the ALJ’s resolution of the conflict. Blue Mesa Forest v. Lopez, supra.
Here, there was a factual dispute between the parties concerning the identity of the claimant’s “primary care” physician or physicians, and whether that physician or physicians determined the claimant to be at MMI. Consequently, we are not persuaded that the ALJ exceeded her authority in hearing the matter without an IME.
II.
The respondent further contends that there is insufficient evidence to support the ALJ’s findings of fact concerning the MMI determinations of Dr. Tyler. The respondent contends, inter alia, that the record does not support the ALJ’s finding that Dr. Tyler never placed the claimant at MMI for the industrial injury to the right upper extremity. We disagree.
Dr. Tyler’s reports are subject to conflicting inferences concerning whether Dr. Tyler placed the claimant at MMI for the injury to the right upper extremity. For example, in his report of December 9, 1994, Dr. Tyler notes that the claimant originally complained of right and left wrist pain, but that the claimant reported improvement after casting of the right wrist. Further, Dr. Tyler’s subsequent reports indicate that his treatment was focused on the claimant’s left upper extremity complaints See (Tyler reports February 28, 1995; March 30, 1995; May 16, 1995; July 6, 1995; July 14, 1995; July 20, 1995). We also note that even though Dr. Tyler reported that the claimant was at “maximal medical improvement related to” the 1992 injury on August 15, 1995, and imposed medical restrictions on the use of both upper extremities, Dr. Tyler did not reference the right upper extremity in his August 2, 1995 “Permanent Partial Impairment Rating” report.
Similarly, the record supports the ALJ’s finding that Dr. Tyler’s November 16, 1995 MMI determination made no mention of the right extremity. However, in summarizing the claimant’s progress on November 30, 1995, Dr. Tyler notes that the claimant reports “popping an clicking” in the right wrist, which he will have “assessed and documented” by Dr. Labosky. Thereafter, the claimant was seen by Dr. Labosky who recommended the deQuervain’s release on the right wrist.
In agreeing with Dr. Labosky’s recommendation for surgery, Dr. Tyler’s February 8, 1996 report reflects his opinion that conservative treatment has not resulted in “significant changes in [the claimant’s] symptomology, and indeed, [the claimant] has further swelling along the adductor tendon of the thumb on the right.” He also indicated that he agreed with the recommendation for a deQuervain’s release “secondary to lack of improvement with therapy.”
Although, Dr. Tyler’s medical reports could have been interpreted differently, a plausible inference from these records is that Dr. Tyler never placed the claimant at MMI for the right upper extremity. See Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951) (standard on appellate review is whether the evidence when viewed in the light most favorable to the prevailing party is sufficient to support the ALJ’s pertinent findings); Lantern Inn v. Industrial Commission, 624 P.2d 929 (Colo.App. 1981) (issue on review is whether the ALJ’s inferences were permissible ones in light of the totality of the circumstances); see also Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941) (ALJ considered to possess expert knowledge which renders him competent to evaluate medical evidence and draw plausible inferences from it). Therefore, we may not disturb the ALJ’s finding that Dr. Tyler’s MMI determinations were limited to the left upper extremity component of the industrial injuries Gelco Courier v. Industrial Commission, 702 P.2d 295
(Colo.App. 1985) (if two inferences plausible, appellate court may not interfere with ALJ’s selection).
Moreover, the ALJ’s finding that the claimant was not determined to be at MMI for the right upper extremity is, in and of its self, sufficient to support the conclusion that Dr. Tyler’s MMI determinations did not terminate the claimant’s temporary disability benefits under § 8-42-105(3)(a) Blue Mesa Forest v. Lopez, supra. Consequently, we need not consider the respondent’s remaining arguments.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 20, 1996, is affirmed.
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 February 21, 1997
to the following parties:
Debra Paysinger, 325 Jewel St., Colorado Springs, CO 80910
King Soopers, Inc., P. O. Box 5567 T. A., Denver, CO 80217
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909 (For Claimant)
Thomas O. McBride, Esq., 777 E. Speer Blvd., #210, Denver, CO 80203 (For Respondent)
BY: _______________________