W.C. No. 4-729-639.Industrial Claim Appeals Office.
March 16, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Krumreich (ALJ) dated December 4, 2008, that granted the respondents’ motion to strike the claimant’s application for a Division-sponsored independent medical examination (DIME) and denied the claimant’s motion to strike the respondents’ final admission. We affirm, but for reasons different from those relied upon by the ALJ.
No hearing was held in this matter. The ALJ’s order was entered resolving two motions, the Respondents’ Opposed Motion to Strike Claimant’s Application for Division IME and Claimant’s Motion to Strike Respondents’ Final Admission of Liability Dated July 9, 2008. Based upon the motions and the file, the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The respondents filed a final admission of liability dated July 9, 2008, which admitted for permanent partial disability benefits and stated that the date of maximum medical improvement was May 25, 2008. The final admission had attached to it a medical report from Dr. Castrejon dated May 28, 2008. The report stated that the claimant was provided with orthopedic care and with “psychological management” by Dr. Shockley. The report also stated that the doctor advised the claimant that no further active medical treatment was recommended except for a home exercise program. The claimant did not file an objection to the final admission or a Notice and Proposal to Select an Independent Medical Examiner. She did file an application for hearing on July 24, 2008 endorsing medical benefits and penalties as issues to be resolved at the hearing. She filed an application for a DIME on October 29, 2008.
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Based upon these factual findings the ALJ granted the respondents’ motion to strike the application for a DIME and denied the claimant’s motion to strike the final admission. The claimant appealed the order and contends that the ALJ erred in refusing to strike the final admission. The claimant argues that it is undisputed that she suffered both physical and psychological injuries as a result of the compensable accident and that Dr. Castrejon’s report of maximum medical improvement did not expressly address the latter component of the injury. Therefore, she contends that the final admission was defective as a matter of law and the ALJ should have stricken it.
In our view the ALJ did not err in denying the motion to strike the final admission. However, our reasoning is slightly different from that of the ALJ. It is apparent from the pleadings and from the order that the parties and the ALJ viewed these motions as appropriate for resolution on summary judgment. Summary judgment is an available procedure in a workers’ compensation proceeding. The Office of Administrative Courts (OAC) has promulgated a procedural rule authorizing summary judgment in workers’ compensation proceedings. OACRP Rule 17 allows an ALJ to enter summary judgment where there are no disputed issues of material fact. See Office of Administrative Courts’ Rule of Procedure (OACRP) 17, 1 Code Colo. Reg. 104-3 at 7. Moreover, to the extent that it does not conflict with OACRP 17, C.R.C.P. 56 also applies in workers’ compensation proceedings. Morphew v. Ridge Crane Service, Inc., 902 P.2d 848 (Colo.App. 1995); Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988) (the Colorado rules of civil procedure apply insofar as they are not inconsistent with the procedural or statutory provisions of the Act). Summary judgment is a drastic remedy and is not warranted unless the moving party demonstrates that it is entitled to judgment as a matter of law. Van Alstyne v. Housing Authority of Pueblo, 985 P.2d 97 (Colo.App. 1999). And all doubts as to the existence of disputed facts must be resolved against the moving party, and the party against whom judgment is to be entered is entitled to all favorable inferences that may be drawn from the facts. Kaiser Foundaton Health Plan v. Sharp, 741 P.2d 714 (Colo.App. 1987).
In the context of summary judgment, we review the ALJ’s legal conclusions de novo. See A.C. Excavating v. Yacht Club II Homeowners Association, 114 P.3d 862 (Colo. 2005). However, pursuant to § 8-43-301(8), C.R.S. 2008, we have authority to set aside an ALJ’s order only where the findings of fact are not sufficient to permit appellate review, conflicts in the evidence are not resolved, the findings of fact are not supported by the evidence, the findings of fact do not support the order, or the award or denial of benefits is not supported by applicable law. Here, the question on review is generally whether applicable law supports the ALJ’s conclusion that the respondents’ final admission of liability was not defective on its face so as to warrant striking the final
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admission. We conclude that the matter was not one appropriately resolved on summary judgment and, therefore, the claimant’s motion was properly denied.
Section 8-42-107(8)(b)(I), C.R.S. 2008, provides that “an authorized treating physician shall make a determination as to when the injured employee reaches maximum medical improvement. . . .” Generally that finding of maximum medical improvement may only be challenged through the DIME procedures. Thus, a finding of maximum medical improvement by an authorized treating physician is a jurisdictional prerequisite to the applicability of the DIME process. See Aren Design, Inc. v. Becerra, 897 P.2d 902 (Colo.App. 1995). Similarly, a DIME is a jurisdictional prerequisite to the ALJ’s determination of the issue of maximum medical improvement. Section 8-42-107(8)(b)(II) (III), C.R.S. 2008; Town of Ignacio v. Industrial Claim Appeals Office, 70 P.3d 513
(Colo.App. 2002).
However, a DIME is not a prerequisite to an ALJ’s resolution of factual disputes concerning who is an authorized treating physician, whether that physician has made a determination of maximum medical improvement, or the resolution of conflicting and ambiguous opinions concerning whether the claimant has reached maximum medical improvement Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996). Thus, if the physician issues ambiguous or conflicting reports concerning whether or not the claimant has reached maximum medical improvement, the ALJ may resolve the issue as a matter of fact by determining the doctor’s true position. Town of Ignacio v. Industrial Claim Appeals Office, supra. Similarly, the question of whether the authorized treating physician has issued conflicting or ambiguous opinions on maximum medical improvement is itself a question of fact. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385, 388
(Colo.App. 2000).
Therefore summary judgment is not appropriate where the matter to be resolved requires factual determinations. Indeed, the claimant has stated as much in her brief in support of the petition to review. There she asserts that “If Judge Krumreich made the factual determination that Claimant did not suffer a psychological injury or that the authorized treating physician opined that there was no mental impairment, then she recognized a factual dispute. Obviously, hopefully citation is unnecessary, if there is a factual dispute, summary Judgment is inappropriate.” Memorandum Brief in Support of Petition to Review at 4 (unpaginated).
In this case the dispute is over the interpretation of the medical report attached to the final admission. That is a dispute that requires factual findings prior to its resolution. We conclude that the claimant’s contention was equivalent to one that the apparent determination of maximum medical improvement attached to the respondents’ final admission was not a clear and unambiguous statement that the claimant had reached
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maximum medical improvement for all compensable components of her industrial injury. That contention requires resolution of factual matters and was not appropriately resolved on summary judgment. Therefore, we agree that the motion was properly denied and we affirm the order. We should not be understood as expressing in this order any opinion concerning what, if any, further proceedings or avenues of relief may or may not be available to any of the parties. We merely hold that the motion in the nature of one for summary judgment was properly denied.
Finally, we do not understand the claimant to have appealed the portion of the order granting the respondents’ motion to strike the application for a DIME. Therefore, it is unnecessary for us to address that issue.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 4, 2008, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_____________________________ Curt Kriksciun
_____________________________ Thomas Schrant
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ROGELIA PRIETO, PUEBLO, CO, (Claimant), WESTERN FORGE, COLORADO SPRINGS, CO, (Employer), SEDGWICK CLAIMS MANAGEMENT SERVICES, Attn: KRIS OWEN, LEXINGTON, KY, (Insurer), ALEXANDER RICCI, PC, Attn: WILLIAM A ALEXANDER, JR., ESQ., COLORADO SPRINGS, CO, (For Claimant).
THOMAS POLLART MILLER, LLC, Attn: JOSHUA D BROWN, ESQ, GREENWOOD VILLAGE, CO, (For Respondents).
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