W.C. No. 4-258-467Industrial Claim Appeals Office.
November 9, 1998
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) which required them to pay additional temporary disability and medical benefits. The respondents contend the ALJ erred in finding that the claimant is not at maximum medical improvement (MMI). We disagree, and therefore, affirm.
MMI exists when the claimant’s condition is “stable and no further treatment is reasonably expected to improve the condition.” Section 8-40-201(11.5), C.R.S. 1998. Under former §8-42-107(8)(b), C.R.S. (Cum. Supp. 1995) [amended in 1996], the initial determination of MMI shall be made by the authorized treating physician who has provided the primary care and, and if either party disputes that determination, the claimant must undergo an independent medical examination (IME). Section 8-42-107(8)(b) also provides that the IME physician’s opinion is binding unless overcome by “clear and convincing evidence.” Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The claimant suffered compensable injuries on February 21, 1995. Dr. Sheplay diagnosed the claimant as suffering from a cervical sprain, myofascial pain syndrome, muscle tension headaches, psychological factors effecting pain, and right a CMC strain. On December 7, 1995, Dr. Sheplay placed the claimant at MMI, but he continued to treat the claimant until February 26, 1996. Dr. Sheplay also referred the claimant to Dr. Ridgeway, who in turn referred the claimant to Dr. Watts, who began treating the claimant in April 1996.
On June 4, 1997, Dr. Finn conducted a Division-sponsored IME on the issue of MMI. Dr. Finn reported that the claimant’s range of motion was limited and that the claimant’s complaints of ongoing shoulder pain were consistent with impingement syndrome. Dr. Finn opined that the claimant’s symptoms had not been adequately addressed, and therefore concluded that the claimant is not at MMI. Dr. Finn recommended an orthopedic evaluation of the claimant’s shoulder and right wrist, as well as repeat EMGs and MRI studies.
The respondents disputed Dr. Finn’s opinion and filed an Application for Hearing on the issues of permanent disability and MMI. A hearing was scheduled for November 17, 1997.
In July 1997, the claimant was examined by Dr. Griffis who conducted repeat EMG studies which were normal. A repeat cervical MRI was completed in September 1997. Dr. Griffis opined that the cervical MRI was unremarkable except for degenerative abnormalities at C4-5 and C5-6. Therefore, Dr. Griffis determined that the claimant had been at MMI since December 1995.
On October 20, 1997, Dr. Finn was deposed. Dr. Finn agreed that the claimant’s EMG and cervical MRI studies were not inconsistent with MMI. However, he recommended a repeat MRI of the claimant’s shoulder and stated that he would place the claimant at MMI if that MRI was normal. Thereafter, the claimant had a repeat shoulder MRI. According to Dr. Griffis, the MRI was normal.
At the hearing, the respondents took the position that Dr. Finn implicitly determined the claimant to be at MMI because the MRI of the shoulder was normal. In the alternative, the respondents argued that they overcame Dr. Finn’s opinion by “clear and convincing evidence.”
The ALJ found that Dr. Finn had not had an opportunity to review the repeat MRI of the claimant’s shoulder or reevaluate the claimant to determine if and when the claimant reached MMI. Therefore, the ALJ determined that Dr. Finn did not place the claimant at MMI. Further, the ALJ determined the respondents failed to present “clear and convincing evidence” to overcome Dr. Finn’s opinion. Consequently, the ALJ ordered the respondents to reinstate temporary total disability benefits commencing December 8, 1995. The ALJ also ordered the respondents to provide ongoing medical benefits.
I.
On review, the respondents renew their contention that Dr. Finn determined the claimant to be at MMI. In support, the respondents contend that diagnostic testing is not designed to improve the claimant’s condition. Therefore, they argue that Dr. Finn’s recommendation for additional testing does not support a finding that Dr. Finn did not place the claimant at MMI. We are not persuaded.
It is immaterial whether diagnostic testing is medical treatment designed to improve the claimant’s condition, because Dr. Finn recommended the testing to determine if there was further treatment which could improve the claimant’s condition. Furthermore, Dr. Finn’s June 4, 1997 report expressly states that the claimant is not at MMI. Based upon this evidence the ALJ could reasonably infer that Dr. Finn did not determine the claimant to be at MMI as of June 4, 1997, and the pertinent issue is whether Dr. Finn subsequently retracted his opinion.
At the time of the hearing, Dr. Finn had not reviewed the MRI of the claimant’s shoulder and the ALJ was not required to presume that Dr. Finn agreed with Dr. Griffis’s interpretation of the MRI. Furthermore, even if Dr. Finn agreed with Dr. Griffis’s interpretation, there is no evidence in the record which indicates whether Dr. Finn would have placed the claimant at MMI as of December 1995, June 1997, the date of the MRI, or some other date. Therefore, the record supports the ALJ’s finding that Dr. Finn did not determine when the claimant reached MMI.
In reaching this conclusion we recognize the respondents’ assertion that Dr. Finn reexamined the claimant on December 16, 1997 and placed her at MMI. However, Dr. Finn’s December 16 report was not part of the record before the ALJ, and cannot be considered for the first time on appeal.
Furthermore, we reject the respondents’ contention that the ALJ erroneously denied their “Motion to Compel Expedited Reevaluation by Dr. Finn of Claimant,”and their request to submit post-hearing evidence in the form of Dr. Finn’s December 16 reevaluation. The ALJ has considerable discretion in determining whether to allow the post-hearing submission of additional evidence. Sections 8-43-207(1)(I) and (j), C.R.S. 1998; IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). We may not interfere with the ALJ’s determination in the absence of a clear abuse of discretion. Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986).
The legal standard on review of an alleged abuse of discretion is whether the ALJ’s decision exceeds the bounds of reason, as where it is unsupported by the law or the evidence Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). Here, the respondents’ motion for an expedited revaluation was not filed until after the ALJ issued his Summary Order. In denying the motion, the ALJ noted that the hearing was set on the respondents’ Application for Hearing and the respondents did not request a continuance to submit the reevaluation until after they were unable to introduce hearsay evidence concerning Dr. Finn’s opinions. The ALJ also found that Dr. Finn had already been directed to perform a follow-up IME by the Division of Workers’ Compensation.
The ALJ’s findings are supported by substantial evidence in the record, and consequently, they must be upheld. See Tr. p. 33; Exhibit A. Furthermore, we know of no authority, and the respondents cite none, in support of their contention that they were entitled to an “expedited” follow-up IME. Under these circumstances, we cannot say the ALJ’s refusal to grant the expedited IME and allow the submission of additional evidence was an abuse of discretion. The respondents’ additional arguments are not persuasive.
II.
Next, the respondents contend that the issue of MMI was not ripe for adjudication and that the ALJ exceeded his authority in proceeding with the hearing. Under the applicable law, a treating physician’s determination that the claimant is at MMI is a prerequisite to a Division-sponsored IME. Aren Design, Inc. v. Becerra, 897 P.2d 902 (Colo.App. 1995). Former § 8-42-107(8)(b) also provides that a hearing shall not take place until “the finding of the independent medical examiner selected by the director has been filed with the division.” Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995). However, the statute expressly contemplates that the IME physician’s opinion concerning MMI may be overcome by “clear and convincing evidence,” and the statute does not limit the IME physician to finding that the claimant is at MMI. Furthermore, Rule XIV(L)(7), 7 Code Colo. Reg. 1101-3 at 60, does not preclude a hearing on the issue of MMI pending a “follow-up IME.” Therefore, insofar as the respondents disputed Dr. Finn’s opinion that the claimant was not at MMI, the respondents were entitled to a hearing to present evidence to overcome his opinion.
Here, the respondents did not attempt to vacate or continue the hearing until after the ALJ’s adverse ruling. Under these circumstances, the respondents may not now complain that the ALJ erroneously adjudicated the issue of MMI. Cf. Jacobs v. Commonwealth Highland Theaters, Inc., 738 P.2d 6 (Colo.App. 1986).
II.
Next, we reject the respondents’ contention that they overcame Dr. Finn’s opinion by clear and convincing evidence. “Clear and convincing evidence” is evidence which is unmistakable and is free from serious or substantial doubt. Metro Moving Storage Co. v. Gussert, supra. The determination of whether the respondents overcame Dr. Finn’s opinion is a question of fact for resolution by the ALJ, which must be upheld if supported by substantial evidence in the record. Metro Moving Storage Co. v. Gussert, supra. Application of the substantial evidence test requires that we defer to the ALJ’s credibility determinations, his resolution of conflicts in the evidence, and his assessment of the probative value of the evidence. Metro Moving Storage Co. v. Gussert, supra; Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (ALJ is free to credit one medical opinion to the exclusion of a contrary medical opinion).
As noted by the ALJ, Dr. Greenberg evaluated the claimant in 1995 and recommended psychological treatment to alleviate the physical injury. Dr. Huene, Dr. Finn, and Dr. Griffis all agreed with the recommendation for psychological treatment. However, as of the hearing, the claimant had not received the psychological counseling. On November 12, 1996, Dr. Watts reported the claimant had “not yet reached” MMI. Similarly, after an examination on February 12, 1997, Dr. Ridgeway reported that the claimant’s condition was worse and that the claimant required further evaluation and treatment of her spinal disorder. Even Dr. Griffis’s July 30, 1997 report was equivocal. Dr. Griffis stated that the claimant “is very close to reaching” MMI if the MRI test is normal, and recommended additional treatment including the psychological counseling previously recommended. In view of this evidence, the ALJ could and did reasonably infer that a finding of MMI was not “highly probable and free from serious or substantial doubt.” See Summary Order dated November 24, 1997.
III.
The respondents also contest the ALJ’s award of medical benefits. The respondents contend that the ALJ awarded medical benefits after MMI and that award is inconsistent with the ALJ’s finding that the claimant is not at MMI.
The ALJ found the claimant proved her entitlement to ongoing medical treatment “either to help her obtain MMI or medical benefits pursuant to Grover v. Industrial Commission.” (Discussion and Conclusions of Law 3). Therefore, the ALJ ordered the respondents to pay the claimant’s reasonable and necessary medical expenses “either through the date of MMI or after the date of MMI.” (Order 3).
Grover type medical benefits cannot be awarded until the claimant is at MMI. Because the ALJ found that the claimant has not been placed at MMI, an award of Grover type medical benefits would have been premature and thus, the ALJ implicitly required the respondents to provided pre-MMI medical benefits.
IV.
Finally the respondents contend the ALJ denied them due process of law by finding that the claimant suffered another injury in May 1995. The respondents contend that this issue was not endorsed for adjudication.
The ALJ did not award or deny any benefits or penalties concerning the May 1995 injury. Further, it does not appear the ALJ relied upon his finding of a new injury to resolve the parties’ dispute concerning the respondents’ liability for permanent partial disability and medical benefits in this injury claim. We also note that the respondents do not explain how they were prejudiced by the ALJ’s finding. Therefore, the ALJ’s error, if any, was harmless and shall be disregarded. See Section 8-43-310, C.R.S. 1998; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988).
IT IS THEREFORE ORDERED that the ALJ’s order dated December 19, 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. 1998.
Copies of this decision were mailed November 9, 1998
to the following parties:
Sharon Wix, c/o Martin, P.O. Box 127, Lake George, CO 80827
Community Care of America, c/o ECA Holdings, Inc., 1625 Meadowbrook Blvd., Paonia, CO 81428-9325
Debbie Lathram, c/o Gallagher Bassett Services, Inc., The Quorum West, 7935 E. Prentice Ave., Ste. 305, Englewood, CO 80111
Dale A. Gerlach, Esq., P.O. Box 636, Colorado Springs, CO 80901 (For the Claimant)
Cindy M. Slevin, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondents)
BY: ______________________