W.C. No. 4-125-387Industrial Claim Appeals Office.
February 20, 1997
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ), which “denied and dismissed” his claim for medical benefits and temporary disability benefits. We set the order aside and remand for entry of a new order.
The ALJ found that the claimant sustained a compensable back injury on January 3, 1992. The claimant was initially treated by Dr. Falecki, who in turn referred the claimant to Dr. Ryan. The ALJ found that neither Dr. Falecki nor Dr. Ryan noted any symptoms involving pain radiating down the claimant’s left leg into his foot.
On August 4, 1992, Dr. Falecki and Dr. Ryan placed the claimant at maximum medical impairment (MMI). Thereafter, the respondents requested a Division-sponsored independent medical examination (IME). The ALJ found that the IME request was limited to the issue of the degree of permanent medical impairment. Nevertheless, on December 1, 1992, the IME physician, Dr. Stabel, opined that the claimant was not at MMI due to ongoing problems with his left hip and right knee.
Subsequently, the respondents reinstated the claimant’s temporary total disability benefits effective May 21, 1994. The claimant returned to Dr. Falecki who prescribed some additional treatment, but stated that the claimant again reached MMI on August 29, 1994. Dr. Falecki was of the opinion that, as of August 29, the claimant’s continuing symptoms were not related to the industrial injury.
In February 1996, the claimant was again examined by Dr. Ryan. Dr. Ryan opined that the claimant was no longer at MMI and should receive additional treatment in the nature of a therapy program and possibly facet joint injections.
Under these circumstances, the ALJ denied the claimant’s request for temporary total disability benefits from October 5, 1992 [sic] to May 21, 1994. The basis of the ALJ’s decision was that the claimant was placed at MMI by Dr. Ryan and Dr. Falecki on August 4, 1992, and there was no IME conducted concerning the issue of MMI. The ALJ also held that Dr. Ryan’s February 1996 report and hearing testimony concerning MMI is “irrelevant” because Dr. Ryan “is no longer a treating physician.”
The ALJ further denied and dismissed the request for temporary total disability benefits and medical benefits after August 29, 1994. This decision was also based on the fact that there was no IME concerning MMI, and Dr. Ryan was no longer a treating physician.
I.
On review, the claimant first contends that the ALJ erred in determining that Dr. Ryan’s 1996 opinions concerning MMI are “irrelevant.” To the contrary, the claimant reasons that this case involves conflicting opinions between authorized treating physicians providing primary care, and the ALJ was obliged to resolve the conflict between Dr. Falecki and Dr. Ryan. We agree with the claimant.
Initially, we note that § 8-42-107(8)(b), concerning determinations of MMI, was significantly amended in 1996. 1996 Colo. Sess. Laws, ch. 112 at 456-457. The amendments apply to “determinations of maximum medical improvement made on or after” July 1, 1996. We conclude that the amendments are not applicable here because the two MMI determinations under review were made in 1992 and 1994.
Accordingly, the relevant provision is § 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.). Under this provision, the “authorized treating physician” who has provided the “primary care” determines the existence of MMI. If a party disputes the authorized treating physician’s determination of MMI, the issue is subject to the IME procedure, and the IME physician’s determination is binding unless overcome by clear and convincing evidence. Further, an ALJ may not hold a hearing concerning MMI until the IME physician files a report with the Division.
However, if the opinion of the treating physician is ambiguous concerning MMI, or if there is a conflict between multiple treating physicians, the IME procedure is not a prerequisite to the ALJ’s resolution of such factual issues Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996). Moreover, a treating physician may retract his opinion concerning MMI at any time prior to the initiation of the IME procedure. When a treating physician does so, the retraction merely presents a question of fact for the ALJ concerning whether or not, in the opinion of that physician, the claimant has attained MMI. Blue Mesa Forest v. Lopez, supra; cf. Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995) (primary physician’s decision to retract an MMI opinion after IME process is initiated does not alter the binding nature of the IME physician’s opinion).
Here, we agree with the claimant that a possible interpretation of Dr. Ryan’s testimony and his February 1996 report is that Dr. Ryan believes the claimant never reached MMI, despite his August 1992 opinion to the contrary. Thus, the evidence presents a potential conflict concerning Dr. Ryan’s opinion regarding the date of MMI, as well as a potential conflict between Dr. Ryan and Dr. Falecki.
In view of Blue Mesa Forest v. Lopez, we disagree with the ALJ’s conclusion that Dr. Ryan’s potential change of opinion is “irrelevant.” The ALJ found that no party initiated an IME for purposes of reviewing the question of whether the claimant reached MMI on August 4, 1992. Therefore, Dr. Ryan remained free to alter his opinion concerning MMI, and the ALJ was obliged to resolve the resulting evidentiary conflicts. The mere fact that Dr. Ryan was not actually treating the claimant in 1996 does not disqualify him from commenting on the claimant’s condition in 1992 when he was treating the claimant.
As a result of this conclusion, we necessarily reject the respondents’ assertion that, because Dr. Ryan placed the claimant at MMI and gave an impairment rating, he was precluded from changing his opinion concerning MMI. Such a position is inconsistent with the holding in Blue Mesa Forest v. Lopez, supra.
For essentially the same reasons, we conclude that the ALJ erred in determining that Dr. Ryan’s opinion was “irrelevant” with respect to the determination of MMI which was made in August 1994. Had the ALJ correctly applied the law, he might have concluded that Dr. Ryan remained an authorized treating physician, and that his failure to treat the claimant after August 1992 was merely a consequence of the initial mistake concerning MMI.
We recognize that the respondents made extensive arguments concerning whether or not the claimant’s disability, after August 29, 1994, is causally related to the injury. Although the ALJ made reference to these issues in his Summary Order, the Specific Findings of Fact and Conclusions of Law do not contain any such findings. Therefore, we decline to infer that the causation issue was the basis of the ALJ’s denial of benefits after August 29, 1994.
II.
The claimant next contends that, in any event, the ALJ was bound by Dr. Stabel’s IME opinion that he did not reach MMI. The claimant recognizes that, in Carroll v. Cunningham Construction Co., W.C. No. 3-113-816, May 14, 1996 aff’d., Cunningham Construction v. Carroll,
(Colo.App. 96CA1008, December 12, 1996) (not selected for publication), we held that a request for an IME on the issue of medical impairment pursuant to § 8-42-107(8)(c), C.R.S. (1996 Cum. Supp.), does not constitute a request for an IME on the issue of MMI under § 8-42-107(8)(b). Instead, we concluded that parties may seek an IME for the limited purpose of contesting the degree of permanent medical impairment without being bound by an IME physician’s gratuitous opinion that the claimant is not at MMI. However, the claimant contends that this case is distinguishable from Carroll because a letter, which the Division of Workers’ Compensation sent to Dr. Stabel on October 30, 1992, inquired whether Dr. Stabel agreed with the treating physician concerning the date of MMI. We are not persuaded.
Generally, unless an absurdity is involved, language in a written document should be given its plain and clear meaning See Cary v. Chevron, U.S.A., 867 P.2d 117
(Colo.App. 1993). Applying that principle here, we perceive no error in the ALJ’s order. The letter to Dr. Stabel states that, “The issue(s) requested for you to address isIMPAIRMENT.” Moreover, paragraph 5 of the letter states that, “the issue to be addressed by the IME physician is indicated on the top of this letter and should be the pivotal part of the report.”
In our view, the letter unambiguously indicates that the “issue” to be determined by Dr. Stabel is the degree of medical impairment, not the date of MMI. Although the letter inquired whether or not Dr. Stabel agreed with the date of MMI, that is apparently a function of the fact that this is a Division “form letter” which is always sent to IME physicians, and must cover all issues to which an IME might be addressed.
Consequently, the ALJ correctly ruled that Dr. Stabel’s opinion concerning MMI had no binding effect. Instead, the case is governed by our holding in Carroll v. Cunningham Construction, supra.
III.
The claimant next takes issue with the ALJ’s determination that the respondents “resumed payment of temporary disability benefits” on May 21, 1994. Relying on a General Admission of Liability dated June 2, 1994, the claimant asserts that the respondents retroactively admitted liability for temporary disability benefits from August 4, 1992 to May 21, 1994.
As a general matter, we agree with the claimant’s legal assertion that, once liability is admitted for temporary total disability benefits, respondents are bound by the admission until such time as they obtain relief from an ALJ, or become authorized to terminate benefits in accordance with the Rules of Procedure See Snyder v. Industrial Claim Appeals Office,
___ P.2d ___ (Colo.App. No. 96CA0679, February 6, 1997). However, we disagree with the claimant’s interpretation of the admission in this case, and therefore, find no error in the ALJ’s order.
The portion of the admission labeled “Type of Benefits” indicates that temporary total disability benefits were admitted for the periods from January 4, 1992 through March 29, 1992, April 13, 1992 through May 10, 1992, and May 21, 1994 through an undetermined date. The “Remarks” section of the admission states as follows:
“Claimant has been paid PPD from 8-4-92 thru 5-28-94. Therefore CCIA will offset previously paid PPD from TTD owed for that period of time. No retroactive payments prior to 5-21-94 required. TTD reinstated as of 5-21-94.”
The claimant reasons that the reference to “TTD owed for that period of time” contemplates the entire period from August 4, 1992 to May 28, 1994. However, such a reading is inconsistent with the admission as a whole. First, the section labeled “Type of Benefits” does not indicate that the respondents are admitting liability for temporary total disability benefits for the period August 4, 1992 through May 21, 1994. Moreover, the “Remarks” section itself indicates that TTD is to be reinstated “as of” May 21, 1994, and that no “retroactive payments” are due prior to May 21, 1994. Under these circumstances, the best reading of the General Admission of Liability is that the respondents were claiming a right to offset the permanent partial disability benefits paid for the week of May 21, 1994 to May 28, 1994, against their newly admitted liability for temporary total disability benefits from May 21, 1994 to May 28, 1994.
IV.
The claimant also contends that the ALJ erred in failing to award ongoing medical benefits, and in denying medical benefits and temporary total disability benefits without affording the claimant an opportunity for an IME. In view of our disposition, it is premature to address these arguments.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 19, 1996, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
Copies of this decision were mailed February 20, 1997
to the following parties:
Jesus M. Sierra, 3217 1/2 Osage St., Denver, CO 80211
Colorado Seal Stripe, Inc., 3700 E. 56th Ave., Commerce City, CO 80022-3604
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority — Interagency Mail
Jeffrey A. Goldstein, Esq., 1763 Franklin St., Denver, CO 80218 (For Claimant)
By: ____________________________________________