W.C. No. 4-104-524Industrial Claim Appeals Office.
March 8, 1999.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which denied his petition to reopen on the grounds of a worsened condition. We affirm.
On August 8, 1991, the claimant suffered an admitted back injury. As a result, the claimant suffers constant back pain. Dr. Pero, the treating physician, placed the claimant at maximum medical improvement (MMI) on September 10, 1993. In June 1995 the ALJ awarded permanent partial disability benefits and future medical benefits to maintain MMI.
Since 1995, the respondents have paid for ongoing treatment with Dr. Pero. In 1998 the claimant filed a petition to reopen and requested additional temporary disability benefits. In support, the claimant attached a medical report from Dr. Pero which stated that in 1996 he changed the claimant’s medication from Tylenol 3 to Ultram. The claimant argued that his condition worsened while taking Ultram and improved when the Ultram was discontinued.
The ALJ found that in October 1996 Dr. Pero changed the claimant’s pain medication from Tylenol 3 to Ultram, and in July 1997 Dr. Pero switched the claimant to Vicodin. The ALJ also determined that the claimant remained at MMI between October 1996 and July 1997. Therefore, the ALJ determined the claimant failed to prove grounds to reopen the claim and award additional temporary disability benefits.
I.
On review the claimant contends the ALJ has an established pattern of bias against his attorney, and as result, the ALJ erroneously refused to consider his testimony and the testimony of Dr. Pero. The claimant also contends that the evidence compels the finding that he suffered a worsened condition when he was on Ultram. We reject these arguments.
The ALJ is presumed to be unbiased until the contrary shown Wecker v. TBL Excavating, Inc., 908 P.2d 1186 (Colo.App. 1995). Our review of the May 12, 1998 hearing transcript does not support the claimant’s assertion of bias.
Moreover, we are unable to locate any prior case involving the claimant’s attorney which supports the claimant’s allegation that we have previously determined the ALJ is biased against the claimant’s attorney. Furthermore, nothing in Mendonca v. Sisters of St. Francis of Colorado Springs, W.C. No. 4-209-155, (April 4, 1996), aff’d in part, Mendonca v. Industrial Claim Appeals Office
(Colo.App. No. 96CA0736, December 12, 1996) (not selected for publication), supports the claim of bias. See In Re Marriage of Johnson, 40 Colo. App. 250, 576 P.2d 188 (1977) (adverse rulings alone insufficient to show bias).
In any case, the ALJ did not ignore or reject Dr. Pero’s testimony. To the contrary, the ALJ’s findings reflect that she expressly relied on Dr. Pero’s testimony to find that the claimant failed to prove a worsened condition. Consequently, the claimant has failed to establish grounds which afford us a basis to conclude that the ALJ was biased.
II.
The claimant does not dispute Dr. Pero’s testimony that he remained at MMI between 1996 and 1997. The claimant also concedes that the treating physician’s determination of MMI is dispositive and can only be challenged by a Division-sponsored independent medical examination (IME) under the provisions of §8-42-107(8)(b), C.R.S. 1998. However, he contends that without an order reopening the claim, he was unable to unable to obtain a Division-sponsored IME and thus, was precluded from challenging Dr. Pero’s opinion. Under these circumstances, he contends that he was denied due process of law. We disagree.
As argued by the claimant § 8-40-201(11.5), C.R.S. 1998, defines MMI as:
“a point in time when any medically determinable physical or mental impairment as a result of injury has become stable and when no further treatment is reasonably expected to improve the condition. The requirement for future medical maintenance which will not significantly improve the condition or the possibility of improvement or deterioration resulting from the passage of time shall not affect a finding of maximum medical improvement.”
The determination of MMI is governed by § 8-42-107(8)(b) Monfort Transportation v. Industrial Claim Appeals Office, 942 P.2d 1358 (Colo.App. 1997). Under § 8-42-107(8)(b) the treating physician’s determination of MMI is binding unless either party “disputes” the physician’s opinion by requesting an IME.
However, the question of whether the claimant was at MMI in 1993 is separate and distinct from whether the claimant’s work-related condition remained stable in 1996 and 1997 when his medication was changed. This is true because the claimant can reach MMI and suffer a subsequent deterioration to the point that he is no longer at MMI. Consequently, in a series of cases we have concluded that the IME provisions in § 8-42-107(8)(b) do not apply to a petition to reopen which alleges that the claimant is no longer at MMI due to a worsened condition. Manarik v. Keebler Company, W.C. No. 4-343-955 (October 9, 1998); Watkins v. Monfort, Inc., W.C. Nos. 4-219-467 4-239-387 (March 17, 1998); Donohoe v. ENT Federal Union, W.C. No. 4-171-210 (September 15, 1995). We adhere to our prior conclusions.
Here, the claimant’s contention that his condition worsened in 1996 and 1997 does not directly challenge Dr. Pero’s opinion that he attained MMI in 1993. Cf. Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995) Consequently, the claimant was not required to obtain a Division-sponsored IME to challenge Dr. Pero’s opinion that he remained at MMI through July 1997, and the claimant’s due process rights were not implicated.
Alternatively, the claimant contends that MMI is not dispositive of whether he suffered a worsening of condition. We disagree.
Section 8-42-105(3)(a), C.R.S. 1998, provides that temporary disability benefits terminate when “the employee reaches maximum medical improvement.” It is also well established that a claimant may not receive further temporary disability benefits as long he remains at MMI. City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997); El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993).
Dr. Pero testified that prescription medication is the only ongoing treatment he has provided the claimant since 1995. (Pero depo. p. 28). He stated that he initially prescribed Tylenol 3, which is a narcotic analgesic, but that the claimant developed a tolerance to the drug. (Pero depo. p. 30). Consequently, in an effort to get the claimant on a “less potent” medication and determine if the claimant’s functioning had improved Dr. Pero switched the claimant’s pain medication to Ultram, which is a non-controlled substance. (Pero depo. pp. 15, 20, 30). However, Ultram did not provide an effective pain relief, and consequently, in July 1997 Dr. Pero began prescribing Vicodin. (Pero depo. p. 26).
Moreover, Dr. Pero stated that the claimant’s condition had not “substantially changed” during the time he was on Ultram. Rather, he stated that the change was “more of a subjective pain state.” (Pero depo. p. 31). Dr. Pero testified that there was a deterioration of the claimant’s condition from a “formal semantic perspective” which required a change in medication, but no major change from a “major clinical perspective” and that the claimant remained at MMI since 1995. (Pero depo. pp. 33, 34). Consequently, there is substantial evidence in the record to support the ALJ’s determination that the claimant remained at MMI throughout the disputed period and that there was a change of “maintenance” type treatment and not a worsening of condition. (Tr. p. 17); CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765
(Colo.App. 1988), rev’d on other grounds, at 783 P.2d 269 (1989) (the ALJ’s oral findings may be considered to interpret the ALJ’s written findings). Moreover, ALJ’s findings support the order denying additional temporary disability benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 28, 1998, 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. 1998.
Copies of this decision were mailed MARCH 8, 1999
to the following parties:
Thomas G. Richards, 402 Dean Drive, Widefield, CO 80911
Coca-Cola Bottling Company, 415 W. Pikes Peak Avenue, Colorado Springs, CO 80905-1524
Brandee DeFalco Galvin, Colorado Compensation Insurance Authority (Interagency Mail)
William A. Alexander, Jr., Esq., 3608 Galley Road, Suite 200, Colorado Springs, CO 80909 (For Claimant)
Lisa A. Varriale, Esq., 1700 Broadway, Suite 1700, Denver, CO 80290 (For Respondents)
BY: ________________