Opinion
W.C. No. 4-707-792.
December 8, 2009.
ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated August 5, 2009, that determined the claimant had failed to overcome the opinion of the Division-sponsored independent medical examination (DIME) physician that the claimant was at maximum medical improvement (MMI) and that determined that an adjudication of the claimant's average weekly wage (AWW) was unnecessary. We affirm the order in part, set it aside in part, and remand for further proceedings.
The claimant suffered an admitted industrial injury to her cervical spine on October 24, 2006. On April 16, 2007, one of the claimant's authorized treating physicians (ATP), Dr. Cogan, after reviewing surveillance videos of the claimant's activities, released the claimant to full duty. On April 27, 2007, another of the claimant's ATPs, Dr. Kawasaki, after reviewing the surveillance videos, concluded that the claimant had reached MMI and he assigned her a six percent whole person impairment rating. The respondents filed a Final Admission of Liability (FAL) based on the opinions of Dr. Cogan and Dr. Kawasaki. The claimant object to the FAL and a DIME was scheduled. The DIME physician issued a report concluding that the claimant had not reached MMI and had sustained 21 percent whole person impairment. The respondents filed an application for hearing seeking to overcome the DIME physician's opinion. At the deposition of the DIME physician, the respondents showed the doctor surveillance videos of the claimant. The ALJ found that the DIME physician after reviewing the surveillance video and a functional capacity evaluation (FCE) changed his opinion and concluded that the claimant reached MMI on April 27, 2007. The DIME physician also agreed with Dr. Kawasaki that the claimant sustained a six percent whole person impairment rating as a result of the industrial injury. The claimant filed a petition to review the ALJ's order.
I.
The claimant citing Williams v. Kunau, 147 P.3d 33 (Colo. 2006), first argues that the ALJ failed to determine whether the claimant's case remained open. The claimant argues that once the DIME physician states that a claimant is not at MMI the case remains open until further orders. Thus the claimant argues that it was incumbent upon the respondents to continue to pay TTD benefits until a determination could be made as to whether the claimant was or was not at MMI. The claimant contends that it is irrelevant whether the respondents objected to the DIME physician's MMI determination because the case remained open and the claimant remained entitled to TTD benefits and medical benefits from the time the benefits were "unilaterally stopped." We are not persuaded that the ALJ erred.
In our view, the claimant's reliance on Williams v. Kunau is misplaced. In Williams, the supreme court determined that § 8-42-107.2, C.R.S. 2009, was ambiguous as to the proper procedure for FAL closure of a case after a DIME determines that the claimant was not at MMI and the ATP makes a second determination that the claimant has reached MMI. This ambiguity had resulted in conflicting interpretations of the statute by various divisions of the court of appeals. The supreme court interpreted the statute to eliminate the ambiguity by holding that the legislature intended DIMEs to remain open and that no FAL could be filed until the DIME physician concluded that the claimant was at MMI.
Here, unlike the statute at issue in Williams, § 8-42-105(3) is clear and unambiguous. It contains no requirement that a DIME be performed before temporary disability benefits can be terminated without a hearing. Rather, the way for an injured worker to challenge the treating physician's finding of MMI is to arrange for a DIME. §§ 8-42-107(8)(b)(II); 8-42-107(8)(c); 8-42-107.2(5), Division Rule 11. See Whiteside v. Smith 67 P.3d 1240 (Colo. 2003). Under the statutory scheme and the implementing regulation, a DIME is a mandatory prerequisite to challenge the termination of temporary disability benefits in a hearing before an administrative law judge. See Story v. Indus. Claim Appeals Office, 910 P.2d 80, 82 (Colo. App. 1995).
The claimant has not cited any authority, nor are we aware of any, that once the DIME physician has opined that the claimant has not reached MMI that the insurer must reinstate TTD pending the hearing where the issue of overcoming the DIME physician's opinion is decided. Certainly § 8-42-107(8)(b), C.R.S. 2009 which provides for obtaining the opinion of a DIME physician on MMI makes no provision for reinstatement of TTD. Further § 8-42-107.2 (4) C.R.S. 2009, which specifically provides that the insurer shall within thirty days of the mailing of the DIME's report shall either file an admission based on the DIME physician's report or request a hearing to contest the DIME's determinations, provides no requirement of reinstatement of TTD before the hearing. Therefore, we are not persuaded that the ALJ erred.
As we understand the claimant's argument under Williams v. Kunau, following the DIME physician's determination that the claimant was not at MMI the respondents were obligated to reinstate the claimant's TTD benefits because the case remained open until she reached MMI. The claimant argues that to find otherwise would allow the respondents to dictate benefits and unilaterally stop paying benefits at their whim without a determination by the court. However, our review of the relevant statutes and rules persuade us that the insurer was under no obligation to reinstate TTD benefits upon receipt of the initial DIME opinion that the claimant was not at MMI.
In this regard, § 8-42-105(3) C.R.S. 2009 provides that upon the occurrence of one of four enumerated conditions TTD benefits shall cease. The termination of TTD benefits under any one of the four enumerated conditions is mandatory. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo. App. 1995). In relevant part § 8-42-105 (3) provides that temporary total disability benefits shall continue until the attending physician gives the employee a written release to return to regular employment or the employee reaches MMI.
In compliance with 8-42-105(3), the Director has promulgated rules for modification or termination of temporary disability benefits, found in W.C. Rule of Procedure 6, 7 Code Colo. Reg. 1101-3 (2009). Rule 6(A)(1) provides that an insurer may terminate TTD benefits without a hearing by filing an admission of liability form with a medical report from an ATP stating the claimant has reached MMI. Rule 6 (A)(1) provides that an insurer may terminate temporary disability benefits without a hearing by filing an admission of liability with a medical report from the authorized treating physician who has provided the primary care, stating the claimant is able to return to regular employment.
Here the insurer in compliance with 8-42-105(3) and Rule 6 filed an FAL terminating TTD benefits. The claimant, pursuant to her statutory right, contested the FAL and sought a DIME. The ALJ although noting the original opinion of the DIME physician that the claimant was not at MMI, determined that the DIME Physician had provided ambiguous and conflicting opinions concerning whether the claimant had reached MMI. The ALJ determined that the ultimate opinion of the DIME physician was that the claimant had reached MMI on April 27, 2007 the same date as found by Dr. Kawasaki and admitted to by the respondents.
In our view the relevant statutory and regulatory provisions do not support the position urged by the claimant. Therefore, we are not persuaded that the insurer was obligated after filing an FAL supported by the opinion of an ATP to reinstate TTD benefits upon receipt of the initial DIME opinion that the claimant was not at MMI before the matter could be heard before an ALJ upon the application filed by the insurer to overcome the opinion of the DIME physician.
Moreover, here the FAL which terminated TTD benefits is supported not only by a report from the ATP that the claimant was at MMI but also by a report releasing the claimant to full duty. The release to full duty is an independent ground for terminating TTD separate from whether or not the claimant has reached MMI. Section 8-42-105(3); Rule 6. The termination of TTD benefits under any one of the enumerated conditions is mandatory. Laurel Manor Care Center v. Industrial Claim Appeals Office 964 P.2d 589 (Colo. App. 1998). Therefore, on this additional ground, we perceive no error in the ALJ's order terminating TTD.
II.
The claimant next contends that the ALJ erred in determining that she failed to overcome the opinion of the DIME physician, by clear and convincing evidence. The claimant argues that the ALJ erred because contrary to the ALJ's determination the DIME physician did not reverse his opinion as argued by the respondents. We disagree.
Here the ALJ found that, although the DIME physician had initially stated the claimant had not reached MMI, the true opinion of the DIME physician was ambiguous. The ALJ found that the ultimate opinion of the DIME physician was that the claimant had reached MMI.
It is clearly established that if the DIME physician offers ambiguous or conflicting opinions concerning maximum medical improvement or impairment, it is for the ALJ to resolve the ambiguity and determine the DIME physician's true opinion as a matter of fact. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000); Stephens v. North Air Package Express Services, W. C. No. 4-492-570 (February 16, 2005), affd, Stephens v. Industrial Claim Appeals Office (Colo. App. 05CA0491, January 26, 2006) (not selected for publication). In so doing, the ALJ should consider all of the DIME physician's written and oral testimony. Lambert Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656, 659 (Colo. App. 1998). A DIME physician's finding of MMI and permanent impairment consists not only of the initial report, but also any subsequent opinion given by the physician. See Andrade v. Industrial Claim Appeals Office, 121 P.3d 328 (Colo. App. 2005) (ALJ properly considered DIME physician's deposition testimony where he withdrew his original opinion of impairment after viewing a surveillance video); see also, Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082 (Colo. App. 2002) (noting that DIME physician retracted original permanent impairment rating after viewing videotapes showing the claimant performing activities inconsistent with the symptoms and disabilities she had reported). We may not interfere with the ALJ's resolution of these issues if supported by substantial evidence. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra.
Here the ALJ made the following findings, which are supported by substantial evidence in the record. The DIME physician provided ambiguous and conflicting opinion concerning whether the claimant reached MMI and the extent of her permanent impairment. Exhibit 19 Kresten Depo. In his October 1, 2007 DIME report, the physician concluded that the claimant had not reached MMI and assigned her whole person impairment rating of 21 percent. Exhibit 19 at 20. In contrast, after reviewing surveillance videos, the claimant's FCE and her medical records the DIME physician opined in his deposition testimony that the claimant reached MMI on April 27, 2007 and sustained a six percent whole person impairment rating. Kresten Depo. at 26-27. The DIME physician remarked that the videos reflected a marked discrepancy in the claimant's cervical range of motion and that the FCE raised additional concerns about the claimant's credibility. Kresten Depo. at 15-18, 22-23, Exhibit 7. A complete review of all relevant information, including the surveillance videos, thus caused the DIME physician to change his opinion. Kresten Depo. at 26-27. Considering the DIME physician's written report and subsequent deposition testimony, the ALJ concluded that his ultimate DIME opinion was that the claimant reached MMI on April 27, 2007 with a six percent whole person impairment rating. Kresten Depo. at 26-27
The claimant points out other evidence such as testimony from the DIME physician in which he maintained that the claimant was not at MMI. However, the existence of evidence which, if credited, might support a determination contrary to that reached by the ALJ does not afford us grounds to grant appellate relief. Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d. 28 (1963). In our view there is ample evidence supporting the ALJ's determination that his ultimate opinion regarding MMI was that the claimant had reached it.
The question whether the party challenging the DIME physician's determination of maximum medical improvement has overcome the report by clear and convincing evidence is generally one of fact for determination by the ALJ. McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo. App. 1999). Consequently, we must uphold the ALJ's resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2009. In our view, the ALJ's determination was supported by substantial evidence.
III.
The claimant contends that the ALJ erred in failing to determine the claimant's AWW. The ALJ found that because the claimant had reached MMI she was not entitled to recover additional TTD benefits and so a determination of the claimant's AWW was unnecessary. The claimant argues that a determination that she is not entitled to TTD benefits for a period beyond those admitted to does not render moot the claimant's alleged entitlement to a larger award of TTD benefits based on an alleged incorrect calculation of AWW made by the respondents. We agree and also note that calculation of medical impairment benefits, which are involved here, requires inclusion of the TTD rate. Section 8-42-107(8) C.R.S. 2009.
Here the claimant argued that the admitted AWW of $480.80 was based on the hourly wage of and number of hours the claimant worked at the time of the accident. However, following her accident the claimant returned to work and her hourly income increased. The claimant's brief also contains other arguments that the respondents incorrectly calculated her AWW because the method used did not fairly determine her AWW. We do not read the ALJ's order as containing findings or conclusions as to whether the claimant established entitlement to a greater AWW than admitted to by the respondents. We note that the claimant specifically raised the issue at the time of the hearing, and in her response to application for hearing. Tr. at 26-27.
We recognize that § 8-42-102(3), C.R.S. 2009 affords the ALJ wide discretion to calculate AWW by such "manner" or by "such other method" as will fairly determine the claimant's average weekly wage. We may not interfere with the ALJ's failure to exercise his discretionary authority unless an abuse of discretion is shown. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. App. 1993). The standard on review of an alleged abuse of discretion is whether the ALJ's order "exceeds the bounds of reason," such as where it is not supported by substantial evidence or is contrary to law. Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985); Coates Reid Waldron v. Vigil, supra.
Here the respondents argue that the claimant's wage was correctly determined because the claimant is not entitled to an increase in AWW because of her earning subsequent to the date of injury; instead she is restricted to AWW based on her earning at the date of injury under § 8-42-102(2). C.R.S. 2009. We acknowledge that § 8-42-102(2) states that the claimant's AWW is to be based on her earning at the time of injury. However, as noted by the court of appeals in Simpson v. Industrial Claim Appeals Office ___ P.3d ___ 2009 (Colo. App. No. 07CA1581 April 16, 2009) in Avalanche Industries, Inc. v. Clark 198 P.3d 589 (Colo. 2008), the supreme court determined that, while the provision for calculating AWW is tied to the time of injury, the statute permits the ALJ to exercise broad discretion in calculating the AWW. 198 P.3d at 597-98.
Here, whether or not the ALJ agrees with the respondents' arguments regarding the AWW being calculated based on wages earned at the time of the injury, it is apparent from the order that the ALJ did not believe it necessary to adjudicate the issue. Therefore, in our view we may not conclude that the ALJ implicitly exercised his discretion and found that the claimant had failed to meet her burden of proving entitlement to a greater AWW. See generally Womack v. Industrial Commission; 168 Colo. 364, 451 P.2d 761 (1969) (where the findings of fact do not afford an adequate basis for review, the matter must be remanded for additional findings); see also, Hall v. Industrial Claim Appeals Office, 757 P.2d 1132 (Colo. App. 1988) (basis for an order, including credibility determinations, must be articulated). The ALJ's order does not address the issue of AWW other than to say that because the claimant was not entitled to additional TTD benefits that a determination of her AWW is unnecessary. In our opinion, the ALJ abused his discretion by refusing to exercise it and decide whether the claimant was entitled to a greater AWW. See Gregorich v. Industrial Commission, 117 Colo. 423, 188 P.2d 886 (1948) (refusal to exercise discretion is an abuse); Nelson v. Payless Drug Stores, Inc., W. C. No. 4-190-449 (April 20, 1999). Consequently, the matter must be remanded for that purpose. Moland v. Roadway Package System, Inc., W. C. Nos. 4-282-792 and 4-282-794 (April 21, 2003); Unrein v. New Pipeline Installations, Inc., W. C. No. 3-106-663 (April 24, 1998).
On remand, the ALJ shall make findings of fact and conclusions of law on the issue of AWW. We should not be understood to express any opinion on the issue of what a fair AWW would be. We merely direct the ALJ to reconsider the record as presently constituted and enter a new order consistent with the views expressed herein.
IT IS THEREFORE ORDERED that the ALJ's order dated August 5, 2009 is set aside insofar as it failed to address the issue of AWW. The matter is remanded for entry of a new order on this issue in accordance with the views expressed herein on the issue of AWW.
IT IS THEREFORE FURTHER ORDERED that the ALJ's order dated August 5, 2009 is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
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SHERI PRICE, DENVER, CO, (Claimant).
STAFFING SOLUTIONS, Attn: JERRY MCGAREY, BOULDER, CO, (Employer).
AMERICAN CASUALTY, Attn: NEIL PRICE, C/O: GALLAGHER BASSETT SERVICES, IRVING, TX, (Insurer).
DAVID P REITER, PC, Attn: DAVID P REITER, ESQ., DENVER, CO, (For Claimant).
HALL EVANS, LLC, Attn: DOUGLAS J. KOTAREK, ESQ., DENVER, CO, (For Respondents).
SHERI PRICE, DENVER, CO, (Other Party).