W.C. No. 4-384-349.Industrial Claim Appeals Office.
October 3, 2005.
FINAL ORDER
The respondents seek review of an order dated May 3, 2005 of Administrative Law Judge Stuber (ALJ). The respondents contend the ALJ erred in denying their petition to terminate temporary total disability (TTD) benefits pursuant to § 8-43-404(3), C.R.S. 2004, and their request to be relieved of liability for further medical benefits. We affirm.
On June 7, 1998 claimant suffered an admitted right ankle sprain, when she stepped through a hole in the floor. The claimant received emergency treatment from Dr. Gifford who diagnosed a right ankle sprain. Dr. Gifford did not find any puncture wound.
On June 8, 1998 claimant went to Centura Centers for Occupational Medicine. with complaints of a puncture wound at the site of the right ankle injury. P.A. Schultz diagnosed ankle sprain, puncture wound, and possible cellulitis.
On June 9, 1998 Dr. Eskestrand examined claimant, diagnosed cellulitis secondary to the puncture wound, and prescribed antibiotics. Claimant continued to have significant swelling of the ankle and the dorsum of the foot.
In 1998 and 1999 the claimant underwent two right ankle surgeries by Dr. Eskestrand. Dr. Eskestrand also noted that claimant reported the wound breaking down.
On January 4, 2000 Dr. Bland noted that he was unsure of the cause of the claimant’s ongoing ankle problems because the wound was relatively benign in appearance. Dr. Bland performed surgery to excise the wound. However, the claimant continued to have problems with recurrent wound breakdown.
On June 29, 2000, Dr. Crepps noted that claimant had undergone complex reconstructions, but the wound continued to split and break down. By April 26, 2001 Dr. Eskestrand diagnosed cellulitis and possible RSD and then on September 11, 2001 Dr. Presley diagnosed complex regional pain syndrome (CRPS) and implanted a spinal cord stimulator.
Ultimately Dr. Eskestrand placed the claimant at maximum medical improvement (MMI) on February 3, 2004, and recommended against any additional surgery. However, on February 5, 2004 Dr. Presley performed surgery to revise the leads. Claimant did well for a short time but by February 19, 2004 Dr. Presley noted:
“[V]ery unusual presentation of wounds the are well healed yet w.larg fluid collection unlike anything I have seen before. The battery site wasn’t even involved in the surgery. There are red puncture sites near both wounds that remind me of the last bout of right foot `cellulitis’. I am very worried the patient is harming herself.”
On March 16, 2004 Dr. Strandbery, who is an infectious disease specialist concluded that claimant had developed colonization of the open wound with Methicillin-Resistant Staphylococcus Aureus. Consequently, the claimant had another surgery to drain the infection on April 1, 2004.
On April 28, 2004 Dr. Presley reexamined claimant and noted:
“I remain very surprised at this situation, which began as a very simple cable and lead revision, a minor subcutaneous procedure. There wasn’t even any surgery around the generator and now there are 3 wounds in the area. Very suspicious.”
On May 26, 2004 Dr. Presley reexamined claimant and noted that he was concerned whether claimant would “allow herself to get well at this time.”
Dr. Kleinman a performed a psychiatric independent medical examination (IME) for the respondents on August 2, 2004 and concluded that claimant suffered from a preexisting somatization disorder that had developed into a factitious disorder, which involves a patient taking conscious actions to create or feign a medical condition or symptoms, but for unconscious motivation.
The claimant also underwent an IME by Dr. Goldman, who concluded the claimant had sustained only a right ankle sprain in the June 7, 1998 accident and then self-inflicted wounds and infections. Dr. Goldman further opined that, but for the factitious disorder, the claimant would have reached MMI on or about September 1, 1998. Alternatively, if the additional orthopedic treatment for the right ankle is accepted as compensable, he concluded the claimant would have reached MMI on January 8, 2003.
The respondents filed a General Admission of Liability for the payment of temporary disability benefits commencing June 7, 1998 and continuing indefinitely except for brief periods of temporary partial disability benefits in 1998 and 1999. On October 28, 2004, the respondents filed a petition to terminate TTD benefits effective September 1, 1998, on grounds the claimant would have reached MMI but for the self-inflicted injuries. Alternatively the respondents requested the termination of benefits effective October 28, 2004.
The ALJ found Dr. Gifford’s deposition testimony persuasively demonstrated that she carefully examined the right ankle on June 7, 1998, and probably did not fail to notice a puncture wound on the right ankle if there had been one. Therefore, the ALJ determined the claimant probably self-inflicted a puncture wound after Dr. Gifford’s examination. Further, the ALJ determined the:
“Claimant probably has suffered from a factitious disorder and has self-inflicted some wounds, particularly the puncture wound first noted on June 8, 1998. Claimant had significant ankle instability problems and required orthopedic surgery to reconstruct her ligaments and then eventually to remove her hardware. Since 2001, the authorized treating physician (ATP) opinions have been that claimant had RSD or CRPS, requiring continuing treatment. It is entirely possible that claimant again self-inflicted a puncture wound in 2004 following the lead revision surgery. It is also possible that claimant suffered two independent bacterial infections in 2004 simply as a result of the surgery and without self-infliction of wounds.”
However, the ALJ determined that respondents’ petition to terminate TTD benefits could not be granted under §8-43-404(3), because that statute only allows the ALJ to temporarily suspend or reduce benefits.
Further, the ALJ determined that respondents’ request to terminate TTD benefits was based upon their contention the claimant was at MMI for the industrial ankle sprain. However, the ALJ noted that since no authorized treating physician determined the claimant to be at MMI after February 3, 2004, and neither party requested a Division independent medical examination (DIME) on the issue of MMI pursuant § 8-42-107(b)(II), C.R.S. 2004. Under these circumstances, the ALJ determined he had no jurisdiction to resolve the dispute regarding MMI.
The ALJ also concluded the respondents could not attempt to determine a retroactive MMI date for the admitted work injury. Consequently, the ALJ denied the petition to terminate TTD benefits under the procedural posture presented.
Similarly, the ALJ determined the respondents’ request for relief from liability for medical benefits was based on an argument that claimant would have been at MMI long ago and needed no further treatment but for her factitious disorder and self-inflicted wounds. However, the ALJ found that without a MMI determination, no determination could be made regarding the need for additional medical treatment to cure and relieve claimant’s condition and therefore, denied the requested relief.
I.
On review the respondents contend the ALJ did have jurisdiction and authority to terminate TTD benefits regardless of an MMI determination by an authorized treating physician or a DIME. In particular they argue that because they were not able to terminate TTD pursuant to § 8-42-105(3), C.R.S. 2004, they properly filed a Petition to Modify, Terminate, or Suspend Compensation under the Rules of Procedure, Part IX(D), 7 Code Colo. Reg. 1101-3. The respondents add that TTD benefits are properly terminated under Rule IX(D) because the claimant’s ongoing wage loss is not related to the June 7, 1998 admitted injury but rather is the result of self-inflicted injury that occurred on or about June 8, 1998. We reject this argument.
We note that the respondents rely on Manor v. Industrial Claim Appeals Office, 881 P.2d 443
(Colo.App. 1994) for the general proposition that TTD benefits are predicated upon the actual temporary wage loss attributable to the industrial injury. With this general proposition there can be little disagreement. However, the case is not instructive on the issues of the present case where there is an admitted accident, the respondents admitted liability for TTD benefits, MMI has not been reached and the respondents seek to terminate TTD on the basis that there is no longer a causal connection between the industrial injury and the claimant’s wage loss.
Temporary disability benefits are payable where the claimant is disabled from performing his regular employment as a result of the industrial injury and suffers an actual wage loss. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). The claimant bears the initial burden to prove a causal connection between the industrial injury and the temporary wage loss. However, where the respondents admit liability for temporary disability benefits they inherently admit the existence of a causal connection between the injury and the temporary wage loss.
Under these circumstances, the termination of temporary disability benefits is governed by § 8-42-105(3), C.R.S. 2005, which allows benefits to be terminated if the claimant reaches MMI, returns to work, is released to regular work or is released to modified employment and fails to accept a written offer of such employment Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 18 P.3d 790 (Colo.App. 2000) ; Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995).
Where the respondents seek the termination of TTD benefits based on MMI, the respondents must offer proof “an authorized treating physician” (ATP) has placed the claimant at MMI. Section 8-42-107(8)(b)(II), C.R.S. 2004. Further, the ATP’s finding of MMI is binding on the parties and the ALJ unless and until the claimant undergoes a DIME. Section 8-42-107(8)(b)(III), C.R.S. 2004.
Nevertheless, the ALJ may resolve ambiguities in an ATP’s opinions concerning MMI without requiring the claimant to undergo a DIME. Town of Ignacio v. Industrial Claim Appeal Office, 70 P.3d 513 (Colo.App. 2002). In the current proceeding the ALJ has done so and found that no ATP has determined MMI. This finding supports the ALJ’s determination that he lacked authority to determine whether TTD benefits terminated at MMI.
It is notable that § 8-42-107(8)(b)(II), C.R.S. 2004 provides a procedure for determining whether the worker has or has not reached MMI in the absence of a determination of MMI by the ATP. However, a petition to terminate TTD benefits on the basis of a challenge to the casual connection between the original injury and the current need for temporary total disability is an impermissible method of obtaining an MMI determination.
II.
Similarly, the respondents contend the ALJ erroneously refused to terminate the claimant’s right to ongoing medical benefits where, as here, the claimant’s self-inflicted injury that occurred on or about June 8, 1998 severed the causal connection between the industrial injury and the need for medical treatment. Again we disagree.
Respondents are obligated to provide medical benefits to cure or relieve the effects of the industrial injury. Section 8-42-101(1), C.R.S. 2005; Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337
(Colo.App. 1997). The obligation normally terminates at MMI and § 8-42-107(8)(b) governs the determination of MMI for this purpose.
It is also well established that a general admission of liability for medical benefits does not render the respondents liable for all subsequent treatment rendered to the claimant. To the contrary the respondents retain the right to dispute liability for specific medical treatment on grounds the treatment is not authorized or reasonably necessary to cure or relieve the effects of the industrial injury. See Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997); Williams v. Industrial Commission, 723 P.2d 749 (Colo.App. 1986). This principle recognizes that even though an admission is filed the claimant bears the burden of proof to establish the right to specific medical benefits, and the mere admission that an injury occurred and treatment is needed cannot be construed as a concession that all conditions and treatments which occur after the injury were caused by the injury. Cf. HLJ Management Group, Inc. v. Kim, 804 P.2d 250
(Colo.App. 1990) (general admission does not vitiate respondents right to litigate disputed issues on a prospective basis).
However, the matter did not come before the ALJ for a determination of the respondents’ liability for specific medical expenses. Rather, the respondents sought an order relieving them from liability for all further treatment on grounds any further treatment was necessitated by the self-inflicted injuries. We agree with the ALJ that the respondents’ argument inherently asserts the claimant has been placed at MMI. However, the record supports the ALJ’s finding that no medical MMI determination sufficient to trigger the termination of medical benefits has been made. Therefore, the ALJ did not err in denying the requested relief on this procedural posture.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 3, 2005 is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
____________________ Kathy E. Dean
____________________ Tom Schrant
Margaret J. Rakestraw, El Camino, Colorado Springs, CO, American Medical Response, Aurora, CO, American Medical Response, S. Parker Rd., Aurora, CO, Insurance Company of the State of Pennsylvania, c/o Lisa Allen, Crawford Company, Fresno, CA, Renee C. Ozer, Esq., E. Monument St., Colorado Springs, CO, (For Claimant)
Bruce B. McCrea, Esq., S. Harrison St., Denver, CO, (For Respondents).