W.C. No. 4-326-734Industrial Claim Appeals Office.
July 9, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Hopf (ALJ) which awarded permanent partial disability benefits. The claimant contends the ALJ erroneously found the claimant attained maximum medical improvement (MMI). We disagree and therefore, affirm.
In 1995, the claimant suffered an admitted injury to her right arm. As a result, the claimant underwent two surgeries by Dr. Hajek. On October 5, 1998, the claimant underwent an independent medical examination by Dr. Primack, who placed the claimant at MMI and assigned a 13 percent rating for permanent medical impairment to the upper extremity. (Primack report November 5, 1998).
On January 27, 1999, Dr. Hajek indicated his agreement with Dr. Primack’s opinions. Accordingly, the respondent filed a final admission of liability consistent with Dr. Primack’s medical impairment rating. The claimant objected and requested a Division-sponsored independent medical examination (DIME) on the issues of MMI and medical impairment. The claimant subsequently stipulated to MMI. Consequently, the claimant filed an amended application for a DIME which was limited to the issue of medical impairment.
Dr. Deagle was selected to perform the DIME. In a report dated November 4, 1999, Dr. Deagle opined the claimant was not at MMI. Nevertheless, Dr. Deagle assigned a permanent medical impairment rating which included a 20 percent rating for psychological impairment.
The respondent requested a hearing to overcome the DIME physician’s impairment rating. In a prehearing order dated February 25, 2000, the claimant was also allowed to add the issue of MMI to the hearing.
On conflicting evidence, the ALJ found Dr. Hajek placed the claimant at MMI and that she was bound by Dr. Hajek’s opinion because the claimant withdrew her request for a DIME on the issue of MMI. Further, the ALJ found the respondent overcame Dr. Deagle’s psychological impairment rating. Therefore, the ALJ awarded permanent partial disability benefits based on Dr. Deagle’s medical impairment rating.
On review, the claimant contends the ALJ erroneously found Dr. Hajek determined the claimant to be at MMI when Dr. Hajek testified that he did not believe the claimant was at MMI at the time of the hearing. (Tr. p. 109). Based upon this argument, the claimant contends that her DIME request was premature. Alternatively, the claimant contends that the stipulation on MMI and subsequent withdrawal of the DIME request on the issue of MMI was improperly secured by the respondent. Consequently, the claimant argues the ALJ erred in finding that the DIME physician’s opinion on MMI was “gratuitous” and not subject to any special weight. We reject these arguments.
Initially, we note that the claimant’s Designation of Record includes the “complete Division of Workers’ Compensation file.” The record transmitted to us on appeal apparently does not include the complete Division of Workers’ Compensation file. However, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the claimant requested the ALJ to consider the entire Division of Workers’ Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(7), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers’ Compensation file, but restricted our review to the record made at the hearing.
Former §§ 8-42-107(8)(b)(I) and (II), C.R.S. 1997 [amended for injuries occurring after August 5, 1998], which govern this claim, provide that the initial determination of MMI is to made by an authorized treating physician. The authorized treating physician’s opinion is binding, and the parties may not litigate the issue of MMI, unless the party disputing the authorized treating physician’s determination of MMI obtains a DIME. Aren Design, Inc. v. Becerra, 897 P.2d 902 (Colo.App. 1995). Furthermore, in the absence of a DIME, the ALJ lacks authority to hear a challenge to the treating physician’s finding of MMI. Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995); Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995). However, a DIME is not a prerequisite to the ALJ’s resolution of whether an authorized treating physician has determined the claimant to be at MMI. Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996). Rather, this is a question for fact to be resolved based upon the particulars of the case.
Here, Dr. Primack opined the claimant was at MMI. The respondent then wrote to Dr. Hajek and asked him whether he agreed with Dr. Primack’s opinions. In a letter dated January 27, 1999, Dr. Hajek stated he agreed with “Dr. Primack’s findings regarding [the claimant’s] current status of maximum medical improvement on her shoulder and the impairment rating.” The respondent also provided Dr. Hajek a “Physician’s Report of Maximum Medical Improvement Form.” The respondent subsequently received a completed form dated February 25, 1999, purporting to contain Dr. Hajek’s signature. The form contained an “x” in the “Yes” box on the question of whether the claimant reached MMI. The form also referred to Dr. Primack’s report concerning the claimant’s degree of permanent medical impairment. The ALJ reasonably inferred from this evidence that Dr. Hajek found the claimant to be at MMI.
Further, medical reports may be automatically admitted without formal identification. Section 8-43-210 C.R.S. 2000. The claimant did not object to the admission of Dr. Hajek’s January 27 letter or the February 25 MMI report. (Tr. p. 13). Under these circumstances, the claimant may not now complain the ALJ improperly considered the reports as evidence that Dr. Hajek placed the claimant at MMI. See C.R.E. 103 (a)(1) (error may not be predicated on the admission of evidence absent a timely objection); Robbolino v. Fischer- White Contractors, 738 P.2d 70
(Colo.App. 1987); see also Keystone International, Inc. v. Gale, 33 Colo. App. 216, 518 P.2d 296 (1973).
Contrary to the claimant’s contention, Dr. Hajek’s testimony does not unequivocally contradict the documentary evidence. Although Dr. Hajek stated that neither the January 27 letter nor the February 25 MMI form contained his signature, he admitted the reports were issued by his office and that the MMI form was filled out by his secretary. (Tr. pp. 107, 112). He also admitted he never sent the respondent any retraction letter. (Tr. p. 112). In fact, in response to the question of whether he believed the claimant reached MMI in early 1999, he stated that he “may not completely understand the definition” of MMI. (Tr. p. 108).
MMI is defined as the point in time when the claimant’s condition is “stable and no further treatment is reasonably expected to improve the condition.” Section 8-40-201(11.5), C.R.S. 2000; Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Dr. Hajek testified that in early 1999, the claimant was “as good as she was going to get from what we could do for her shoulder,” even though she was not “back to normal” and he believed the claimant had other medical problems caused by the industrial injury worth investigation. (Tr. p. 108). Thus, Dr. Hajek’s testimony contains some evidence he believed the claimant reached MMI in early 1999.
In any case, it was the ALJ’s sole province to resolve the conflict in Dr. Hajek’s testimony. See Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995); Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988) (factors going to weight given to medical records, rather than admissibility are within the province of the ALJ.) The ALJ’s determination supports the conclusion that Dr. Hajek’s finding of MMI was binding in the absence of an application for a DIME on the issue of MMI.
Although the claimant initially requested a DIME on the issues of MMI and medical impairment, the claimant subsequently withdrew the DIME request on the issue of MMI. Because there is substantial evidence Dr. Hajek placed the claimant at MMI, we reject the claimant’s contention that her waiver of the right to a DIME on the issue of MMI was induced by the respondent’s material misrepresentation about Dr. Hajek’s position on that issue. See Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988) (waiver is the intentional relinquishment of a known right which may be explicit or implicit)
Furthermore, the Court of Appeals has held that a dispute on MMI is waived where DIME is requested on the issue of permanent disability only. Cunningham Construction v. Carroll, Colo. App. No. 96CA1008, December 12, 1996 (not selected for publication) affirming; Carroll v. Cunningham Construction Co., W.C. No. 3-113-816, (May 14, 1986). I Carroll, the primary care physician determined the claimant to be at MMI without permanent impairment. The insurer requested a DIME on the issue of permanent medical impairment. The DIME physician rated the claimant’s permanent impairment as 47 percent of the whole person, but also opined that the claimant was not at MMI. Based upon the IME physician’s opinion on the issue of MMI, the insurer asserted that it was premature to adjudicate the issue of permanent disability. The Carroll court disagreed, and upheld our conclusion that the absence of a request for an DIME on the issue of MMI, precluded a determination of whether the primary care physician erred in finding that the claimant had reached MMI.
We perceive no appreciable distinction between the facts in this case and the circumstances in Carroll. The claimant initially requested a DIME on the issue of MMI, but she subsequently retracted that request and filed an amended request on the sole issue of medical impairment. Therefore, insofar as Dr. Deagle rendered an opinion on the issue of MMI, it was not precipitated by the claimant’s application for a DIME, and was therefore, “gratuitous” and not entitled to the special weight afforded the DIME physician’s opinions under § 8-42-107(8)(b)(II).
The fact that a prehearing judge allowed the claimant to withdraw the stipulation on MMI and endorse the issue of MMI for hearing is immaterial. The pertinent issue is whether the MMI was in dispute at the time of the DIME physician’s evaluation. See Boan v. Industrial Claim Appeals Office, (Colo.App. No. 97CA0698, November 13, 1997) (not selected for publication) (MMI challenge must be made before completion of the DIME on permanent medical impairment). Thus, the fact that the stipulation was withdrawn after completion of the DIME physician’s report does not render his opinion on MMI binding, unless overcome by clear and convincing evidence to the contrary.
The claimant’s remaining arguments have been considered and do not persuade us otherwise.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 1, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
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, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed July 9, 2001 to the following parties:
Sandi Shaffer, Tim Guill, Esq., 3515 S. Tamarac Dr., #200, Denver, CO 80237
Golden Technologies n/k/a GTC Nutrition Company, P. O. Box 628, Johnstown, CO 80534
Sandra Brownell, Graphic Packaging Corporation, 4455 Table Mountain Dr., Golden, CO 80403
Linda Howe, Insurance Management Associates, Inc., 250 N. Water St., 600 IMA Plaza, P. O. Box 2992, Wichita, KS 67202
Tim Guill, Esq., 3515 S. Tamarac Dr., #200, Denver, CO 80237 (For Claimant)
Douglas A. Thomas, Esq., 600 17th St., #1600N, Denver, CO 80202 (For Respondent)
BY: A. Pendroy