W.C. No. 4-277-363Industrial Claim Appeals Office.
November 12, 1998
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) insofar as the ALJ determined maximum medical improvement (MMI). We affirm.
On September 7, 1995, the claimant suffered a compensable right wrist injury, and was treated by Dr. Schwender and Dr. Leo. On September 20, 1996, Dr. Schwender placed the claimant at MMI with four percent permanent medical impairment of the upper extremity.
The ALJ determined that the issue of MMI is governed by the statutory amendments contained in House Bill 1226 (HB 1226), which are currently codified at § 8-42-107(8)(b)(I) (II), C.R.S. 1998 See 1996 Colo. Sess. Laws, ch. 112 at 456. Under HB 1226, the initial determination of MMI is made by “an authorized treating physician,” and that determination is dispositive unless an independent medical examination (IME) is requested.
The ALJ found that Dr. Schwender is an “authorized treating physician.” The ALJ also found that neither party requested an IME to dispute Dr. Schwender’s opinion that the claimant reached MMI on September 20, 1996. Therefore, the ALJ determined that Dr. Schwender’s opinion was binding on the parties and the ALJ.
On review. the claimant contends that HB 1226 is a substantive amendment because it affects the claimant’s entitlement to temporary disability benefits. Therefore, the claimant argues that HB 1226 is not applicable to this 1995 injury claim. The claimant contends that determination of MMI is governed by former § 8-42-107(8)(b) [see 1991 Colo. Sess. Laws ch. 219 at 1309], which provides that the initial determination of MMI shall be made by “the authorized treating physician who provided the primary care.” Moreover, the claimant points out that ALJ Stuber found that Dr. Schwender is not the “primary care” physician. Therefore, the claimant argues that Dr. Schwender’s MMI determination does not support the ALJ’s finding of MMI.
Contrary to the claimant’s contention, the substantive law concerning entitlement to temporary disability benefits appears in § 8-42-105(3), C.R.S. 1998. Subsection 8-42-105(3)(a), C.R.S. 1998, provides that temporary disability benefits terminate when the claimant reaches MMI. Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). Both the current and former versions of §8-42-107(8)(b) prescribe the method for determining MMI. Colorado AFL-CIO v. Donlon, supra; see also Senate Second Reading, March 26, 1996, Tape #96-19, 10:05 a.m. (HB 1226 was adopted to improve the process of getting claimants off disability benefits by creating a procedural method in which an insurer can obtain a Division-sponsored IME on the issue of MMI without first obtaining an attending physician’s finding of MMI). Therefore, we conclude that HB 1226 is procedural in nature.
The general rule is that procedural amendments to a statute are immediately effective. Rosa v. Industrial Claim Appeals Office, 885 P.2d 331 (Colo.App. 1994); Kinninger v. Industrial Claim Appeals Office, 759 P.2d 766 (Colo.App. 1988). However, HB 1226 expressly states that the amendments apply to “determinations of maximum medical improvement” made on or after July 1, 1996. I Stauffacher v. King Soopers, Inc., W.C. No. 4-133-576 (October 16, 1997), we construed this language to mean that the amendments are applicable to medical determinations of MMI made by an authorized treating physician on or after July 1, 1996. The Court of Appeals agreed with our conclusion in King Soopers, Inc. v. Industrial Claim Appeals Office, (Colo.App. No. 97CA1909, June 4, 1998) (not selected for publication). In fact, the court noted that the HB 1226 uses the term “determine” or “has determined” three times in reference to the authorized treating physician, which supports the conclusion that “determinations of” MMI refers to a medical determination of MMI by an authorized treating physician.
The claimant’s arguments do not persuade us to depart from our conclusion in Stauffacher. Moreover, it is undisputed that Dr. Schwender is “an authorized treating physician” who made a medical determination of MMI after July 1, 1996. Therefore, the ALJ correctly determined that the claim is governed by HB 1226.
For their part, the respondents argue that the ALJ erroneously failed to find that Dr. Leo determined the claimant to be at MMI. However the respondents did not appeal the ALJ’s order, and therefore, this argument is not properly before us for consideration. See F.R. Orr Construction v. Rinta, 717 P.2d 965
(Colo.App. 1985).
IT IS THEREFORE ORDERED that the ALJ’s order dated October 31, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ Kathy E. Dean
________________________________ Dona Halsey
NOTICE This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed November 12, 1998
to the following parties:
Catherine M. Perkins, 4324 Erickson R., #3, Colorado Springs, CO 80906
Technical Aid Corporation, 7222 Commerce Center Dr., Ste. 102, Colorado Springs, CO 80919-2631
Liberty Mutual Insurance Company, Attn: Bill Wynn, 13111 E. Briarwood Ave., Ste. 100, Englewood, CO 80112
William A. Alexander, Esq., 3608 Galley Rd., Colorado Springs, CO 80909 (For the Claimant)
David G. Kroll, Esq., 1120 Lincoln St., Ste. 1606, Denver, CO 80203 (For the Respondents)
BY: ______________________