W.C. No. 4-250-669Industrial Claim Appeals Office.
June 17, 1997
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Rumler (ALJ) which terminated temporary disability benefits effective October 30, 1995. We set aside the order and remand for a new order.
On January 18, 1995, the claimant sustained a repetitive use injury to her right hand. The injury was treated by Dr. Carvalho, who later referred the claimant to Dr. Goldstein for hand surgery. Following hand surgery on May 24, 1995, the claimant reported the onset of pain in the cervical and thoracic areas of her spine, her right shoulder and left hand.
Dr. Carvalho determined the claimant to be at maximum medical improvement (MMI) on October 30, 1995, with permanent medical impairment of 14 percent of the right upper extremity. In a subsequent letter dated July 22, 1996, Dr. Carvalho opined that the claimant’s shoulder pain is unrelated to the right hand injury.
The claimant disagreed with Dr. Carvalho, and requested a Division-sponsored independent medical examination (IME), which was subsequently performed by Dr. Shih. In a report dated February 7, 1996, Dr. Shih rated the permanent impairment of the claimant’s wrist as 12 percent of the upper extremity. However, Dr. Shih noted the claimant’s right shoulder pain which had not been treated. Accordingly, Dr. Shih stated:
“If the shoulder is an accepted part of this claim, then the patient would, in my mind, not be at maximum medical improvement as it does not sound as if the shoulder has been fully addressed. . . . . Again, unfortunately, I do not have documentation which clearly helps me define the shoulder injury as being related or unrelated to the occupational injury. Based on the patient’s history, it would be related.”
Crediting Dr. Carvalho’s opinion, the ALJ found that the claimant failed to prove a causal connection between her cervical, thoracic spine, left hand and right shoulder problems and “her work activities.” Consequently, the ALJ terminated the claimant’s temporary disability benefits effective October 30, 1995, the date Dr. Carvalho determined the claimant to be at MMI.
On review, the claimant contends, inter alia, that according to Dr. Shih, her shoulder problems are causally related to the industrial injury. Furthermore, the claimant argues that pursuant to the statutory language currently codified at § 8-42-107(8)(c), C.R.S. (1996 Cum. Supp.), Dr. Shih’s opinion is binding unless overcome by “clear and convincing evidence.” Therefore, the claimant contends that the ALJ erroneously failed to consider Dr. Shih’s opinions. We conclude that the ALJ’s findings are insufficient to permit appellate review of the claimant’s argument, and therefore, remand the matter to the ALJ for additional findings. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.).
Temporary disability benefits terminate at MMI. Section 8-42-105(3)(a), C.R.S. (1996 Cum. Supp.); Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995). The determination of MMI is governed by the statutory language currently codified at §8-42-107(8)(b), C.R.S. (1996 Cum. Supp.). Insofar as pertinent, §8-42-107(8)(b) provides that the claimant’s authorized treating physician shall determine MMI, and if either party disputes that determination the claimant shall undergo an IME. Furthermore, where the IME physician is selected by the Division of Workers’ Compensation, the IME physician’s determination of MMI is binding unless overcome by “clear and convincing evidence.” Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995).
Section 8-42-107(8)(b) also provides that in the absence of an IME physician’s finding concerning MMI the ALJ may not adjudicate the issue of MMI. Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995). Consequently, where there has been no request for an IME on the issue of MMI, the parties are precluded from litigating the issue and are bound by the authorized treating physician’s determination of MMI. Carroll v. Cunningham Construction Co., W.C. No. 3-113-816, May 14, 198 , aff’d., Cunningham Construction v. Carroll (Colo.App. No. 96CA1008, December 12, 1996) (not selected for publication). However, an exception exists when the parties consent to the ALJ’s adjudication of MMI and the record contains an IME physician’s finding on the issue of the MMI. Powell v. L D Electric, W.C. No. 4-150-716, March 21, 1997; Brown v. Colorado Animal Research Enterprises, Inc., W.C. No. 4-179-337, October 30, 1996.
Here, the respondents contend that Dr. Shih’s opinion on the issue of MMI is irrelevant because the claimant’s IME request was limited to the issue of medical impairment. However, at the commencement of the hearing before the ALJ, both parties consented to the ALJ’s adjudication of MMI. (Tr. pp. 3-5, 11). Furthermore, the parties admitted that the Dr. Shih’s IME addressed the issue of MMI. (Tr. pp. 6, 10). In fact, respondents’ counsel admitted that the respondents filed a Final Admission of Liability, which listed February 7, 1996 as the date of MMI, based upon Dr. Shih’s IME report. (Tr. p. 5).
Under these circumstances, we disagree with the respondents’ contention that Dr. Shih’s opinions on the issue of MMI are irrelevant. To the contrary, Dr. Shih’s IME was properly before the ALJ, and was binding unless overcome by “clear and convincing evidence.”
Moreover, we have previously held that § 8-42-107(8) reflects a legislative intent to defer to the IME physician’s opinions concerning the cause of a need for additional treatment unless the opinion is overcome by clear and convincing evidence. Cordova v. United Parcel Service, W.C. No. 4-165-196, May 9, 1997; Fields v. TAD Temporaries, W.C. No. 4-185-877, September 7, 1995. This is true because § 8-40-201(11.5), C.R.S. (1996 Cum. Supp.), defines MMI as the point in time when the medically determinable impairment “as a result of the injury” has become stable and no further treatment is reasonably expected to improve the condition. It follows that the IME physician is required to determine whether a particular physical impairment is or is not the “result of” the industrial injury in deciding whether the claimant has reached MMI.
We adhere to our conclusions in Fields. Consequently, we agree with the claimant that Dr. Shih’s opinion concerning the cause of her shoulder problems was binding unless overcome by “clear and convincing evidence.”
The ALJ did not make any findings of fact concerning Dr. Shih’s IME, nor did she explicitly find that Dr. Shih’s opinions were overcome by clear and convincing evidence. Instead, the ALJ found that the evidence which suggests a causal relationship between the claimant’s shoulder problems and the industrial injury “was not persuasive.” Under these circumstances, the ALJ’s findings are insufficient for us to ascertain whether the ALJ recognized, and applied the correct standard of proof.
In remanding the matter, we recognize the parties’ factual dispute concerning whether Dr. Shih issued an opinion on the issue MMI. On remand the ALJ must determine whether Dr. Shih issued an opinion on the issue of MMI, and if so, the scope of that opinion See Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996). Furthermore, if the ALJ determines that Dr. Shih issued an opinion on MMI, the ALJ must determine whether Dr. Shih’s opinion was overcome by clear and convincing evidence. Based upon these factual determinations the ALJ shall enter a new order concerning the claim for temporary disability benefits after October 30, 1995.
As a result of our disposition we do not consider the claimant’s remaining arguments.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 29, 1996, is set aside insofar as it terminates temporary disability benefits effective October 30, 1995, and the matter is remanded to the ALJ for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
Copies of this decision were mailed June 17, 1997 to the following parties:
Dena G. Pettay, 6909 Quay St., Arvada, CO 80004
Provider Billing Services, Inc., 500 E. 84th Ave., Ste. C-6, Thornton, CO 80229-5338
Colorado Compensation Insurance Authority, Attn: Laurie Schoder, Esq. (Interagency Mail)
James A. May, Esq., 155 S. Madison, Ste. 330, Denver, CO 80209 (For the Claimant)
By: ________________________________