W.C. No. 4-382-946 4-384-988Industrial Claim Appeals Office.
April 29, 1999.
FINAL ORDER
Respondents Miller Specialties, Inc. (Miller), and Colorado Compensation Insurance Authority (CCIA respondents) seek review of a final order of Administrative Law Judge Martinez (ALJ) which ordered them to pay temporary total disability and medical benefits. The CCIA respondents argue that the ALJ erroneously determined the claimant reached maximum medical improvement (MMI) for a March 12, 1998, industrial injury, without requiring the claimant to follow the statutory procedures for determining MMI contained in § 8-42-107 (8)(b), C.R.S. 1998. We affirm.
On March 12, 1998, the claimant sustained a compensable back injury while employed by Miller. At that time, Miller was insured by the CCIA.
Following the March 12 injury the claimant’s treating physician imposed a 10 pound lifting restriction. Thereafter, the claimant suffered continuing back pain following the March 12 incident, and also experienced incontinence approximately one week prior to May 20, 1998. Nevertheless, the claimant returned to work performing duties as a construction “project manager.”
On May 20, 1998, the claimant sustained a second back injury while working for Miller. At the time of this injury Miller was insured by respondent Mid Century Insurance Company (Mid Century).
Following the May 20 injury the treating physician restricted the claimant from all work. The claimant testified that he experienced the “same type of pain” as he did following the March 12 injury, but the pain was “more disabling.” However, by August 31, 1998, the treating physician released the claimant to return to work with a 10 pound lifting restriction.
At the hearing, all parties stipulated that the claimant’s temporary disability and need for medical treatment are causally connected to the March 12 injury or the May 20 “aggravation.” Mid Century agreed to pay the claimant’s temporary disability and medical benefits subsequent to May 20, pending the ALJ’s determination of which insurer is liable.
The ALJ found that the CCIA respondents are liable to pay the claimant’s temporary disability and medical benefits for all periods except May 20, 1998, through August 31, 1998. In support, the ALJ concluded that the claimant “returned to the level of symptomatology he was suffering prior to the May 20, 1998, compensable injury on or about August 31, 1998.” Consequently, the ALJ ordered the CCIA respondents to reimburse Mid Century for benefits which it paid subsequent to August 31, 1998.
On review, the CCIA respondents contend the ALJ’s order is erroneous because he made a “constructive determination of MMI” without following the procedures established by § 8-42-107(8)(b). Citing our decision in Lissauer v. Arapahoe House,
W.C. No. 4-208-121 (November 26, 1997), aff’d., Arapahoe House v. Industrial Claim Appeals Office, (Colo.App. No. 97CA2132, July 9, 1998) (not selected for publication), the CCIA respondents argue that subsection (8)(b) requires an “authorized treating physician” to make the initial determination of MMI, and the ALJ lacks jurisdiction to contradict the authorized treating physician’s finding unless the parties obtain an IME in accordance with the statute. The CCIA respondents point out that these procedures were not followed here; and therefore, the they argue that Mid Century is liable for the claimant’s benefits. We find no error.
Section 8-40-201(11.5), C.R.S. 1998, the defines MMI as the “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.” As the CCIA respondents argue, § 8-42-107 (8)(b) provides that an authorized treating physician must make the initial determination of MMI, and the ALJ may not hold a hearing on MMI until an IME has been conducted in accordance with the statute. Section 8-42-107(8)(b)(II), C.R.S. 1998; Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996). Consequently, in a series of cases exemplified by Lissauer v. Arapahoe House, supra, we have held that once the claimant establishes a causal connection between an industrial injury and his disability and the need for treatment, the “duration” of that causal relationship is to be determined in accordance with § 8-42-107 (8)(b). See also, Chestnut v. University of Colorado — Boulder W.C. No. 4-255-498
(December 13, 1996).
However, our courts have also held that where a claimant’s temporary disability and need for medical treatment may be traced to two or more industrial injuries, the ALJ has authority to apportion the benefits in proportion to the contribution of each injury. State Compensation Insurance Fund v. Industrial Commission, 697 P.2d 807 (Colo.App. 1985); Waterfield v. Poudre Valley Hospital, W.C. No. 4-165-022 (June 16, 1998); Hays v. Don Massey Cadillac, Inc., W.C. No. 4-119-444 (September 16, 1997). Consequently, we have concluded that § 8-42-107 (8)(b) imposes no barrier to an ALJ’s determination of which of two injuries caused temporary disability and the need for medical treatment so long as the ALJ does not purport to determine MMI for one of the injuries in violation of the statute. Ward v. Sievers Instruments, W.C. No. 4-301-616 (August 17, 1998); Ward v. Sievers Instruments, W. C. No. 4-301-616 (January 27, 1999) (Ward II).
Here, we conclude that the ALJ’s order does not violate §8-42-107 (8)(b). The issue before the ALJ was apportionment of temporary disability and medical benefits based on the relative contributions of the two industrial injuries. The ALJ did not find that the claimant’s permanent disability stemming from the May 20 injury was stable, nor did he rule out the possibility that the claimant may need additional treatment for that injury. Consequently, the ALJ did not determine that the claimant reached MMI for the May 20 injury. To the contrary, the ALJ merely determined that by August 31, 1998, the claimant’s ongoing temporary disability was attributable to the March 12 injury, as was the claimant’s existing need for treatment. We conclude, as we did in Ward II, that the ALJ’s order is proper under these circumstances.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 11, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_____________________________ David Cain _____________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed APRIL 29, 1999
the following parties:
Timothy R. Simpson, P.O. Box 91, Crawford, CO 81415-0091
Miller Specialties, Inc., 2355 Pioneer Rd., Delta, CO 81416-2737
Truck Insurance Exchange, Attn. John Stemper, P. O. Box 378230, Denver, CO 80237-8230
Brandee DeFalco Galvin, Esq., Colorado Compensation Insurance Authority — Interagency Mail (For CCIA Respondents)
Kendra Oyen, Esq., 415 Brach Dr., Grand Junction, CO 81503
Richard Gurley, Esq., P. O. Box 4848, Grand Junction, CO 81502 (For Claimant)
Harry E. Coff, Jr., Esq., P. O. Box 118, Grand Junction, CO 81502 (For Mid Century Respondents)
BY: AP