Opinion
W.C. No. 4-302-749
March 2, 1999.
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Gandy (ALJ) which determined the claimant is not at maximum medical improvement (MMI) and ordered the respondents to provide medical benefits. We set aside the order and remand the matter for the entry of a new order.
The claimant suffered an admitted injury to her right wrist on January 31, 1996, and was treated by various physicians, including Dr. Adnan. The claimant also received treatment from Dr. Cohen for symptoms of depression. On September 9, 1997, Dr. Adnan placed the claimant at MMI and opined the claimant sustained permanent medical impairment of 13 percent of the right upper extremity.
On December 31, 1997, Dr. Klingbeil performed a Division-sponsored independent medical examination (IME) on the issues of MMI and permanent impairment. Dr. Klingbeil agreed with Dr. Adnan's determination of MMI and rated the claimant's impairment as 19 percent of the right upper extremity. Dr. Klingbeil assigned no rating for psychological impairment and did not file a "Mental Impairment Rating Worksheet" [Division form MC3A].
At a hearing on MMI and permanent impairment the respondents argued that Dr. Klingbeil's IME report was incomplete without the MC3A form. Therefore, they moved for a continuance. The ALJ denied a continuance. However, in a Summary Order dated March 5, 1998, the ALJ determined that Dr. Klingbeil's IME report was incomplete without the Mental Impairment Rating Worksheet. Therefore, the ALJ refused to enter an order on the issues of MMI and permanent impairment until Dr. Klingbeil submitted a Worksheet.
On June 23, 1998, the claimant filed a Motion for Reconsideration of the Summary Order. The respondents did not file an objection, and the ALJ granted the motion. Crediting the opinions of Dr. Cohen, the ALJ found that the claimant overcame Dr. Klingbeil's MMI determination by "clear and convincing evidence." Therefore, the ALJ determined the claimant is not at MMI and ordered the respondents to provide additional medical benefits for her depression.
I.
As argued by the respondents, § 8-42-107(8)(b)(III), C.R.S. 1998, provides that the "finding" of the IME physician shall be filed prior to a hearing on MMI. The respondents contend the issue of MMI was not ripe for adjudication until Dr. Klingbeil filed a Mental Impairment Rating Worksheet with her IME report. Therefore, the respondents contend that the ALJ exceeded his jurisdiction in adjudicating the issue of MMI. We disagree.
The Mental Impairment Rating Worksheet is used to rate the extent of permanent mental impairment, and not determine whether the claimant has attained MMI. Consequently, we disagree with the respondents' contention that the Worksheet is a necessary part of Dr. Klingbeil's "finding" of MMI.
In any case, the respondents assert that Dr. Klingbeil's narrative report dated December 3, 1997, addressed the same "areas of function" and "activities of daily living" that are listed in the Worksheet. The respondents also contend that the narrative report is a sufficient substitute for the Worksheet.
Dr. Klingbeil's narrative report states that during the IME, Dr. Klingbeil:
"specifically questioned [the claimant] regarding the areas of activities of daily living in which she is not impaired, as well as social functioning, noting that she has a supportive family and friends which she is in good contact with, and not having any problems with. Regarding thinking, concentration, persistence, etc., the patient relates no difficulties in this area, and has no difficulties with adaptation to stress. She has been normally disquieted by the treatment . . . but not in any more than a situational and reactive manner."
Based upon this evidence the ALJ could reasonably infer that the Dr. Klingbeil's finding of MMI was complete without the Worksheet. Therefore, we perceive no error in the ALJ proceeding with the hearing on the issue of MMI.
II.
The respondents also contend, inter alia, that the ALJ's Findings of Fact 3, 4, and 8 are not supported by substantial evidence in the record. We conclude that additional findings are necessary to resolve the respondents' argument. Section 8-43-301(8), C.R.S. 1998.
In Finding of Fact 8, the ALJ stated that there are "no medical records" to support Dr. Klingbeil's "feeling" that the claimant is at MMI for her psychological injury and that the claimant sustained no permanent mental impairment. However, Dr. Klingbeil's own narrative report contains some evidence which, if credited, might support Dr. Klingbeil's opinion that the claimant is at MMI without permanent mental impairment.
Further, in his medical reports dated November 21, 1996 and December 5, 1996, Dr. Cohen stated that he anticipated the claimant would have no permanent psychological impairment. On February 6, 1997, Dr. Cohen stated that he placed the claimant at MMI "from a psychological perspective." He also stated: "I do not perceive any ratable psychological impairment in this case." Thus, Dr. Cohen's reports also contain evidence to support Dr. Klingbeil's finding of MMI.
The ALJ found in effect that Dr. Cohen's opinions constituted "clear and convincing" evidence that Dr. Klingbeil incorrectly determined the claimant to be at MMI (Finding of Fact 11), but he did not make any specific findings concerning Dr. Cohen's 1996 and February 1997 medical reports. We cannot presume that in finding there were "no medical records" the ALJ rejected these reports as incredible. See Hall v. Industrial Claim Appeals Office, 757 P.2d 1132 (Colo.App. 1988) (finding of no evidence may not be converted to a finding of no credible evidence); cf. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (ALJ may credit all, part, or none of an expert witness' testimony). In fact, the ALJ found that Dr. Cohen's opinions were entitled to the "most weight." See Finding of Fact 11; Summary Order dated July 6, 1998. Under these circumstances, we are unable to ascertain how the ALJ would have assessed Dr. Klingbeil's MMI determination, had he recognized the evidence that Dr. Cohen placed the claimant at MMI without mental impairment. Accordingly, the matter must be remanded to the ALJ for additional findings of fact which correctly reflect the evidence in the record. Hall v. Industrial Claim Appeals Office, supra.
Similarly, other findings noted by the respondents do not reflect the evidence in the record. In Finding of Fact 4, the ALJ found that "Dr. Cohen never released [the claimant] from treatment." However, Dr. Cohen's February 7 medical report states: "I am discharging [the claimant] as of today." In Finding of Fact 3, the ALJ found that Dr. Adnan placed the claimant at MMI on September 8, 1997, and Dr. Adnan "did not address Claimant's psychological condition." Admittedly, Dr. Adnan's September 8 report does not discuss the claimant's psychological condition. However, in an earlier report dated February 20, 1997, Dr. Adnan indicated that Dr. Cohen had discharged the claimant from treatment, placed the claimant at MMI, and found no psychological impairment. Because the meaning of the ALJ's finding is unclear, we are unable to ascertain whether it is supported by the record.
In remanding the matter we should not be understood as expressing any opinion concerning the sufficiency or probative value of the medical evidence on the issue of MMI. These are issues for resolution by the ALJ. See Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993). We merely conclude that the ALJ's findings of fact incorrectly reflect the state of the evidence and are insufficient to permit review of the basis for his order.
In view of our disposition, it is premature to consider the respondents' remaining contentions of error.
IT IS THEREFORE ORDERED that the ALJ's order dated August 4, 1998, is set aside and the matter is remanded to the ALJ for additional findings and a new order, in accordance with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ Kathy E. Dean
________________________________ Bill Whitacre
Copies of this decision were mailed MARCH 2, 1999 the following parties:
Mindy J. McKelvey, 1029 N. Washington Avenue, Loveland, CO 80537
Wal-Mart Stores, Inc., 7504 E. Crossroads Blvd., Loveland, CO 80538-8958
Jon Causseaux, Claims Management, Inc., 3901 Adams Road, Suite C, Bartlesville, OK 74006-8458
Mary E. Jeffers, Esq., 1120 Lincoln Street, Suite 1000, Denver, CO 80203 (For Claimant)
Richard Bovarnick, Esq., 5353 W. Dartmouth Avenue, Suite 400, Denver, CO 80227 (For Respondents)
BY: ______________