W.C. No. 4-191-132Industrial Claim Appeals Office.
October 18, 1996
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wells (ALJ) which denied and dismissed her claim for temporary partial disability benefits after May 17, 1995. We affirm.
The claimant suffered a compensable shoulder injury on August 15, 1993. On May 18, 1995, the claimant’s primary treating physician, Dr. Fitzgerald, determined the claimant to be at maximum medical improvement (MMI). At the time of this determination Dr. Fitzgerald noted that the claimant “was a little depressed” and therefore, Dr. Fitzgerald prescribed medication for depression. Dr. Fitzgerald also restricted the claimant from working over six hours a day.
Pursuant to Dr. Fitzgerald’s determination of MMI, the respondents filed a Final Admission of Liability terminating temporary disability benefits and admitting liability for medical impairment benefits. The claimant timely objected but did not request a hearing or an independent medical examination (IME) under the provisions of § 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.) [substantially changed at 1996 Colo. Sess. Laws, ch. 112 at 269 for injuries occurring after July 1, 1996].
On August 11, 1995, Dr. Fitzgerald observed that the claimant was “somewhat depressed,” and referred the claimant to Dr. Michelli for a psychological evaluation. Dr. Michelli subsequently evaluated the claimant, and referred her to Janet Jacobs, R.N., M.A., L.P.C. for counseling.
The ALJ determined that the claimant did not experience a change in her psychological condition between May 18 and August 11, 1995. Rather, the ALJ found that the claimant remained at MMI, and determined that the psychological treatment was prescribed in accordance with Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988), to maintain the claimant at MMI. The ALJ also determined that the claimant’s psychological condition did not restrict the claimant’s employment. Consequently, the ALJ determined that the claimant failed to sustain her burden to prove an entitlement to temporary disability benefits after May 17, 1995.
On review, the claimant first contends that the evidence compelled the ALJ to find that Dr. Fitzgerald is the primary treating physician for the physical component of the industrial injury, and Ms. Jacobs is the primary treating physician for the psychological component of the injury. Relying on Kellogg v. Thomas P. Tritsch, DDS., W.C. No. 4-187-392, May 23, 1995, the claimant also contends that she is not at MMI unless so determined by both of the primary treating physicians. Because Ms. Jacobs has not rendered an opinion concerning MMI, the claimant argues that the ALJ erroneously substituted his judgment for that of Ms. Jacobs in finding that the claimant remained at MMI. We perceive no error.
It is true that a claimant may have more than one component of an industrial injury, and may have more than one primary treating physician. However, the claimant mistakenly asserts that she is not at MMI unless all of the primary treating physicians agree that she has reached MMI. Rather, in the event of a conflict between the primary treating physicians concerning MMI, the ALJ must resolve the conflict as a matter of fact. See Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995); Raymond v. Debra Lynn Raymond, W.C. Nos. 4-129-600 4-229-574, February 1, 1996; Martinez v. Meadow Gold Dairy Products, W.C. No. 3-105-407, September 12 1995. Furthermore, the ALJ’s determination is binding if supported by substantial evidence in the record See § 8-43-301(8), C.R.S. (1996 Cum. Supp.).
The claimant’s reliance upon Kellogg v. Thomas P. Tritsch, DDS., supra, as supporting a contrary result is misplaced Kellogg concerned a claim for medical impairment benefits where the claimant had one primary treating physician for the physical effects of the injury and another primary provider for the psychological effects of the injury. Under these circumstances, the ALJ determined that the claimant in Kellogg was entitled to medical impairment benefits based upon the combined ratings of the two primary providers. However, Kellogg did not involve a dispute concerning MMI, or whether the primary providers agreed on the date of MMI.
Here, the ALJ determined that there was no conflict between Dr. Fitzgerald and Ms. Jacobs concerning MMI, and this is a plausible inference from the undisputed fact that Ms. Jacobs did not issue an opinion on MMI. Furthermore, insofar as the record could be construed as indicating a conflict between Ms. Jacobs and Dr. Fitzgerald, the ALJ found Dr. Fitzgerald’s opinion more persuasive than Ms. Jacobs, and resolved the conflict in favor of Dr. Fitzgerald’s opinion that the claimant reached MMI on May 17, 1995. (Findings of Fact 13). Under these circumstances, we agree with the ALJ that it is immaterial whether Ms. Jacobs is a primary treating physician.
Neither are we persuaded that the ALJ erroneously substituted his judgment for that of Ms. Jacobs concerning the claimant’s ability to perform regular employment. Contrary to the claimant’s argument, the ALJ did not find that the claimant was released to return to regular employment. Rather, the ALJ expressly acknowledged that Dr. Fitzgerald restricted the claimant from working over six hours per day, but determined that the psychological condition did not further restrict the claimant’s employment.
The claimant does not cite any evidence, and we are unable to locate any in the record which indicates that Ms. Jacobs placed restrictions on the claimant’s employment activities. (Tr. pp. 27, 28). At most, Ms. Jacobs stated in a note dated December 7, 1995, that “Dr. Hastings and I have discussed the possibility of specific work restrictions.” Therefore, the ALJ could, and did, find that Ms. Jacobs did not impose any medical restrictions in connection with the psychological component of the injury beyond the restrictions imposed by Dr. Fitzgerald. Transcript p. 40 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, temporary disability benefits terminate upon the occurrence of any one of the events enumerated in §8-42-105(3)(a)-(d), C.R.S. (1995 Cum. Supp.) [amended 1996 Colo. Sess. Laws, ch. 173, at 827]. Under subsection 8-42-105(3)(a), temporary disability benefits terminate when the claimant reaches MMI.
In this case, temporary disability benefits were terminated upon Dr. Fitzgerald’s determination that the claimant reached MMI. The ALJ’s determination that the claimant failed to prove that her condition destabilized as a result of the psychological injury supports his determination that the claimant remained at MMI after May 17. Compare Bradley v. Ampex Corporation, W.C. No. 4-211-540, January 10, 1996, set aside and remanded Bradley v. Ampex Corporation, W.C. No. 96CA0194, September 12, 1996 (ALJ’s finding that claimant not at MMI for psychological injury was, in effect, a finding that claimant suffered a worsening of condition and her condition was no longer stable, so termination of temporary disability benefits based upon MMI was no longer justified); Ballinger v. City of Colorado Springs, W.C. No. 4-154-631, April 12, 1996 (once claimant who is medically restricted from performing her regular duties proves that she is no longer at MMI as a result of a worsening of condition, award of temporary disability benefits is not dependent on proof that worsening resulted in additional medical restrictions). Therefore, § 8-42-105(3)(a) precluded the ALJ from awarding further temporary disability benefits.
Consequently, it is immaterial whether the psychological effects of the injury contributed to the claimant’s loss of earnings after May 17. This is true because the claimant’s wage loss was no longer “temporary” when the claimant was determined to be at MMI. See Golden Animal Hospital v. Horton, 897 P.2d 833
(Colo. 1995); Dziewior v. Michigan General Corp., 672 P.2d 1026
(Colo.App. 1983).
IT IS THEREFORE ORDERED that the ALJ’s order dated March 13, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
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. (1996 Cum. Supp.).
Copies of this decision were mailed October 18, 1996 to the following parties:
Jo Ann Smith, 530 Raemar Dr., Colorado Springs, CO 80911
K-Mart Store, #7082, 6460 South Highway 85-87, Fountain, CO 80817
K-Mart Corp., McMillan Claims Service, 2785 N. Speer Blvd., Denver, CO 80211
William A. Alexander, Jr., Esq., 3608 Galley Road, Colorado Springs, CO 80909-4349 (For the Claimant)
Margaret Keck, Esq., 1777 South Harrison, #1110, Denver, CO 80210 (For the Respondents)
BY: _______________________