W.C. No. 4-174-578Industrial Claim Appeals Office.
July 29, 1998
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which denied temporary disability benefits after May 28, 1996. We affirm.
In March 1993, the claimant suffered work-related injuries to her shoulders, mid-back, and upper extremities. The respondents admitted liability for temporary disability and medical benefits. The claimant was treated by several physicians including Dr. Foster, Dr. Schmitt, Dr. Walden and Dr. Tyler. On August 9, 1995, Dr. Schmitt placed the claimant at maximum medical improvement (MMI). By letter dated May 29, 1996, Dr. Foster placed the claimant at MMI. Dr. Walden originally placed the claimant at MMI in 1994. On July 18, 1996, Dr. Walden again placed the claimant at MMI, but referred the claimant to Dr. Tyler for further treatment.
The respondents filed a Final Admission of Liability, which terminated temporary total disability benefits effective, May 29, 1996, the date of MMI. The claimant timely objected to the Final Admission on grounds that she was not at MMI. The claimant subsequently applied for a hearing on temporary disability benefits after May 28, 1996.
At hearing the claimant took the position that the authorized physicians treated different components of the industrial injury, and therefore, she argued that she did not reach MMI until July 18, 1996, when Dr. Walden placed her at MMI. However, the claimant also contended that Dr. Walden retracted his determination of MMI when he referred her to Dr. Tyler for further treatment. Therefore, the claimant argued that she is entitled to temporary total disability benefits until June 2, 1997, when Dr. Tyler placed her at MMI.
The ALJ found that the Dr. Foster treated the claimant for occupational carpal tunnel syndrome, back and neck complaints, that Dr. Schmitt treated the claimant for occupational thoracic outlet syndrome and shoulder problems, and Dr. Walden also treated shoulder problems. The ALJ also resolved the conflict between the treating physicians by crediting Dr. Foster’s opinion that the claimant reached MMI on May 29, 1996. Finally, the ALJ found that the claimant “remained at maximum medical improvement” after May 29, but received further treatment from Dr. Tyler to maintain MMI. Therefore, he denied the claim for temporary disability benefits after May 28, 1996.
On review the claimant contends the ALJ exceeded her authority in finding that she reached MMI on May 29, 1996, and in approving the termination of temporary disability benefits based on that determination. We disagree.
Temporary disability benefits terminate upon the occurrence of one of the events listed in § 8-42-105(3)(a)-(d), C.R.S. 1997 Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997); Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995). Insofar as pertinent, § 8-42-105(3)(a) provides that temporary disability benefits terminate when the claimant reaches MMI. Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995).
The determination of MMI is governed by § 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.), [amended 1996 for MMI determinations on or after July 1, 1996]. That statute provides that the initial determination of MMI is to be made by the “authorized treating physician who has provided the primary care,” and that determination is binding in the absence of an independent medical examination (IME). Blue Mesa Forest v. Lopez, 928 P.2d 831
(Colo.App. 1996); Aren Design, Inc. v. Becerra, 897 P.2d 902 (Colo.App. 1995). Furthermore, the statute prohibits the ALJ from hearing a dispute over the primary care physician’s MMI determination until an IME has been completed. See Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995).
However, an IME is not a prerequisite to the ALJ’s resolution of a factual dispute concerning the identity of the claimant’s “primary care” physician, and the question of whether that physician has made a determination of MMI. Similarly, an IME is not a prerequisite to a hearing on the issue of MMI, where the claimant has multiple primary care physicians who have issued conflicting opinions concerning the date of MMI. Rather, the ALJ can resolve the factual dispute between the primary care physicians without an IME. Blue Mesa Forest v. Lopez, supra.
Assuming, arguendo, that the claimant had multiple primary care physicians, the evidence supports the ALJ’s finding that they did not treat separate components of the industrial injury, and that the claimant was placed at MMI for all of the compensable components of the injury by May 29, 1996. Further, it was the ALJ’s sole prerogative to resolve the conflicting medical opinions by crediting Dr. Foster’s opinion that the claimant reached MMI on May 29, 1996.
In the absence of an IME, Dr. Foster’s MMI determination is binding on the ALJ and the parties. Consequently, the ALJ did not err in failing to award additional temporary disability benefits after May 29, 1996. Section 8-42-105(3)(a); Burns v. Robinson Dairy, Inc., supra. However, this conclusion is not meant to prohibit the claimant from availing herself of the IME provisions of § 8-42-107(8)(b) to challenge Dr. Foster’s MMI determination, should she desire to do so.
We also note that because the ALJ rejected Dr. Walden’s opinion that the claimant reached MMI on July 18, 1996, it is immaterial that Dr. Walden subsequently retracted his initial MMI determination. Consequently, the existence of evidence in the record which is inconsistent with the ALJ’s finding that Dr. Tyler provided medical treatment to maintain the claimant at MMI does not compel a contrary result.
Moreover, because MMI terminates temporary disability benefits, we need not consider the claimant’s further arguments in support of his contention that the ALJ erroneously terminated temporary disability benefits. Consequently, we do not consider whether the ALJ erred in denying benefits on grounds that the claimant did not seek modified employment within her restrictions after May 28, 1996.
IT THEREFORE ORDERED the ALJ’s order dated May 27, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed July 29, 1998 to the following parties:
Jamie J. Smith, 2114 Essex Lane, Colorado Springs, CO 80909
A Reliable Roofing Co., Inc., 3614 E. Saint Vrain St., Colorado Springs, CO 80909-6623
Colorado Compensation Insurance Authority, Attn: Carolyn A. Boyd, Esq. (Interagency Mail)
Cheryl Martin, Esq., 3464 S. Willow St., Denver, CO 80231-4566 (For Respondents)
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For the Claimant)
BY: _______________________