W.C. No. 3-107-152Industrial Claim Appeals Office.
May 4, 1998
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which required them to pay permanent partial disability benefits based upon the permanent impairment rating of Dr. Yarnell. We affirm.
The claimant suffered an admitted industrial injury to his face and head, resulting in broken facial and jaw bones. Dr. Sewell, the primary treating physician, placed the claimant at maximum medical improvement (MMI) on November 1, 1996. Neither party requested an independent medical examination (IME) on the issue of MMI.
The claimant was ultimately referred to Dr. Yarnell for an impairment rating. In a report dated May 1, 1997, Dr. Yarnell opined that the claimant suffered permanent mental impairment of 15 percent of the whole person. The respondents requested a Division-sponsored IME under the provisions of § 8-42-107(8)(c), C.R.S. 1997, but the request was later withdrawn.
The respondents referred the claimant to Dr. Gutterman for an independent psychiatric evaluation. Dr. Gutterman opined that the claimant is not at MMI and recommended additional treatment. The respondents subsequently authorized further treatment from Dr. Dean, who is a neurologist.
The ALJ determined that because there was no Division-sponsored IME on the issue of MMI, the parties are bound by Dr. Sewell’s finding of MMI. Similarly, the ALJ found that in the absence of a Division-sponsored IME on the issue of permanent impairment, the respondents are required to pay permanent partial disability benefits in accordance with Dr. Yarnell’s rating. Therefore, the ALJ ordered the respondents to pay medical impairment benefits based upon 15 percent impairment of the whole person.
On appeal, the respondents contend that the claimant is not at MMI for either the physical or psychological components of the industrial injury, and continues to treat with Dr. Dean. Therefore, the respondents argue that the issue of permanent impairment is not “ripe” and that the ALJ exceeded his authority by awarding permanent partial disability benefits. We disagree.
I.
Sections 8-42-107(8)(b)(I) and (II), C.R.S. 1997, which are applicable to 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 Division-sponsored IME. Aren Design, Inc. v. Becerra, 897 P.2d 902 (Colo.App. 1995). Furthermore, in the absence of a Division-sponsored IME, the ALJ lacks authority to hold a hearing on the issue 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).
Here, the respondents do not dispute Dr. Sewell’s finding of MMI. However, the respondents contend that Dr. Sewell only determined MMI for the physical injuries. Further, the respondents contend that insofar as Dr. Yarnell diagnosed a psychological injury, the claimant has not received treatment for that injury and thus, could not be at MMI for the psychological component of the injury. We reject this argument.
The respondents did not request a Division-sponsored IME under the provisions of § 8-42-107(8)(b)(II). Rather, the respondents’ IME request dated August 27, 1997, lists the date of MMI as November 1, 1996, as determined by Dr. Sewell. Under these circumstances, the respondents waived the right to litigate their contention that the claimant is not at MMI. 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); Carroll v. Cunningham Construction Co., W.C. No. 3-113-816, May 14, 1986, aff’d. Cunningham Construction v. Carroll, Colo. App. No. 96CA1008, December 12, 1996 (not selected for publication) (dispute on MMI waived where Division-sponsored IME was requested on issue of permanent disability only).
Furthermore, the psychiatric evaluation performed by Dr. Gutterman does not substitute for a Division-sponsored IME under the provisions of § 8-42-107(8)(b). Therefore, the ALJ correctly concluded that he was bound by Dr. Sewell’s finding of MMI.
Moreover, medical benefits may be awarded after MMI to maintain or prevent a deterioration of the claimant’s condition Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). Because the parties are bound by Dr. Sewell’s finding of MMI, the ALJ did not err in finding that Dr. Dean is providing Grover-type treatment for the “residuals” of the industrial injury.
II.
Because the claimant is at MMI, the issue of permanent impairment was properly before the ALJ. Section 8-42-107(8)(c) provides that after MMI has been determined in accordance with §8-42-107(8)(b), an authorized treating physician with Level II accreditation shall determine the claimant’s permanent impairment. Unless the party disputing that impairment rating requests a Division-sponsored IME, the authorized treating physician’s determination of permanent impairment is binding, and the ALJ is precluded from considering a challenge to the authorized treating physician’s impairment rating.
Here, it is undisputed that Dr. Sewell is not Level II accredited. Further, the respondents concede that the claimant was referred to Dr. Yarnell in the normal course of referrals from Dr. Sewell. It follows that Dr. Yarnell is an authorized treating physician for purposes of § 8-42-107(8)(c). See Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997) Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985).
Furthermore, it is undisputed that Dr. Yarnell is Level II accredited. Therefore, in the absence of a Division-sponsored IME on the issue of permanent impairment, Dr. Yarnell’s impairment rating is dispositive of the respondents’ liability for permanent partial disability benefits.
Although the respondents requested an IME on the issue of permanent impairment, the request was later withdrawn. Consequently, the respondents waived their arguments concerning the accuracy of Dr. Yarnell’s rating. Similarly, the respondents waived the arguments that Dr. Yarnell erred in failing to include a rating for the claimant’s medical impairment and erroneously included a rating of mental impairment where there was no prior notice of a compensable psychological injury. Therefore, we may not consider these arguments on appeal.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 7, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ Kathy E. Dean ____________________________________ Bill Whitacre
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 May 4, 1998 to the following parties:
Brian N. Ungaro, P.O. Box 926, Paonia, CO 81428
Mountain Coal Co., 8 Mile NE of Somerset on Hwy. 133, Somerset, CO 81434-9703
Thomas F. Linn, General Attorney, ARCO Coal Company, 555 17th St., Denver, CO 80202
John Bearss, Insurance Co. of North America, P.O. Box 2941, Greenwood Village, CO 80150-0141
Christopher Seidman, Esq., P.O. Box 3207, Grand Junction, CO 81502 (For the Claimant)
Ronald C. Jaynes, Esq. Christine A. McBride, Esq., 777 E. Speer Blvd., Ste. 210, Denver, CO 80203 (For the Respondents)
BY: _______________________