Opinion
W.C. No. 4-403-661
September 21, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ Wheelock) insofar as it denied penalties based on the respondents' alleged improper termination of temporary disability benefits. The respondents seek review of the order insofar as it awarded temporary disability benefits commencing June 15, 1999. We set the order aside and remand for entry of a new order concerning penalties. We affirm the order in part and set it aside in part with respect to temporary disability benefits.
In an order dated April 13, 2000, ALJ Stuber found the claimant sustained the compensable occupational disease of bilateral upper extremity cumulative trauma disorder and mild left carpal tunnel syndrome. ALJ Stuber further determined the occupational disease rendered the claimant unable to return to his usual job as a "manager-in-training" of a pizza restaurant. Consequently, ALJ Stuber ordered temporary disability benefits commencing May 10, 1999. ALJ Stuber also determined that Dr. Weinstein and Dr. Jenks were authorized treating physicians after May 10, 1999.
On September 20, 2000, the matter proceeded to hearing before ALJ Wheelock concerning the claimant's entitlement to temporary disability benefits subsequent to June 15, 1999, and the claimant's entitlement to penalties based his allegation that the respondents improperly terminated temporary disability benefits. ALJ Wheelock found that on May 17, 2000, the respondents faxed to Dr. Weinstein a form entitled Physician's Report of Maximum Medical Improvement and Impairment (hereinafter M-3). On May 24, 2000, Dr. Weinstein faxed the completed M-3 to the respondent-insurer stating the claimant reached maximum medical improvement (MMI) on June 11, 1999. However, Dr. Weinstein failed to complete paragraph 9 of the form which requests the physician to indicate whether or not the claimant has sustained any permanent physical impairment as a result of the injury. Nevertheless, the respondents filed a final admission of liability, dated June 8, 2000, which terminated the claimant's temporary total disability benefits effective June 11, 1999. The admission was predicated on Dr. Weinstein's May 24 report. On June 30, 2000, the respondents filed a general admission of liability and agreed to pay temporary disability benefits through June 14, 1999.
ALJ Wheelock also found the respondents "apparently" contacted Dr. Weinstein concerning his failure to address the issue of permanent impairment in the M-3. As a result, on June 15, 2000, Dr. Weinstein again faxed the M-3, but this time completed paragraph 9 and stated the claimant did not sustain any permanent physical impairment as a result of the injury. It is also significant that Dr. Weinstein failed fully to complete paragraph 11 of the M-3 because he did not mark yes or no in one of the boxes next to the question of whether the claimant was able to return to his "former occupation without restrictions." However, directly beneath this question Dr. Weinstein entered "6-11-99" next to this statement: "If yes, give the date able to return to work."
Further, on June 12, 2000, Dr. Weinstein wrote a letter to claimant's counsel stating that he had not seen the claimant since June 15, 1999, and would "defer the MMI issue back to Dr. Jenks." Dr. Jenks examined the claimant in August 2000 and opined the claimant is not at MMI because he needs a course of occupational therapy and myofascial release. Further, Dr. Jenks stated the claimant is limited to lifting no more than 20 pounds and may not engage in sustained repetitive use of his upper extremities.
The claimant alleged the respondent-insurer violated Rule of Procedure IX (C) (1) (a), 7 Code Colo. Reg. 1101-3, because it filed an admission of liability which terminated temporary disability benefits without taking a position concerning permanent disability benefits. ALJ Wheelock concluded that, although the respondents "should have continued to pay temporary total disability benefits" until receiving Dr. Weinstein's June 15 report, the June 15 report afforded a "reasonable basis to terminate benefits on June 11, 1999." Consequently, the ALJ denied the claim for penalties.
ALJ Wheelock also rejected the respondents' contention that the claimant is not entitled to temporary disability benefits subsequent to June 15, 1999. In this regard, ALJ Wheelock found that Dr. Jenks and Dr. Weinstein offered conflicting opinions concerning whether or not the claimant reached MMI on June 11, 1999. ALJ Wheelock credited the opinion of Dr. Jenks that the claimant was not at MMI, and awarded temporary disability benefits effective "June 15, 1999 and continuing as provided by statute."
I.
The claimant argues the evidence does not support ALJ Wheelock's denial of a penalty based on the respondents' alleged violation of Rule IX. Specifically, the claimant argues the respondents' June 8, 2000 admission of liability, which purported to terminate temporary disability benefits on June 11, 1999, was improper because it was not predicated on a medical report stating whether or not the claimant sustained any permanent medical impairment. Thus, the claimant argues ALJ Wheelock should have awarded penalties from June 11, 1999 through June 15, 1999 [the date of Dr. Weinstein's second faxed M-3]. We agree with the claimant's argument, but remand for additional findings concerning whether or not the respondents had a rational basis for terminating benefits on June 11.
Section 8-43-304(1), C.R.S. 2001, permits the imposition of penalties based on an insurer's violation of a Rule of Procedure. Diversified Veterans Corporate Center v. Hewuse, 942 P.2d 1312 (Colo.App. 1997). Under this statute, the imposition of penalties is based on an objective standard of negligence. Therefore, a penalty may not be imposed if the insurer's actions were predicated on a rational argument based in law or fact. Human Resource Co. v. Industrial Claim Appeals Office, 984 P.2d 1194 (Colo.App. 1999); Diversified Veterans Corporate Center v. Hewuse, supra. Generally, determination of the reasonableness of the insurer's conduct is an issue of fact for determination by the ALJ, and we must uphold the ALJ's resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001; Pueblo School District No. 70 v. Toth, 924 P.2d 1094 (Colo.App. 1996). However, we are not bound by the ALJ's legal conclusions, and the issue is one of law if reasonable minds can draw but one inference from the undisputed facts. See Schreiber v. Brown and Root, Inc., 888 P.2d 274 (Colo.App. 1993).
Rule of Procedure IX (C) (1) (a) provides an insurer may terminate temporary disability benefits without a hearing by filing an admission of liability together with:
a medical report from an authorized treating physician stating the claimant has reached maximum medical improvement; provided such admission of liability shall state a position on permanent disability benefits as provided in Rule IV (G).
Rule IV (G) provides as follows:
Whenever an insurance carrier terminates temporary disability benefits pursuant to Rule IX on the grounds the claimant has reached maximum medical improvement, the admission of liability form shall contain an admission for permanent disability benefits, if any.
In Monfort Transportation v. Industrial Claim Appeals Office, 942 P.2d 1358 (Colo.App. 1997), the respondent filed an admission of liability terminating the claimant's temporary disability benefits based on the treating physician's report that the claimant reached MMI, but did not admit for permanent disability benefits because the claimant had received treatment in New York and the respondent was seeking a Division-sponsored independent medical examination to determine the degree of permanent medical impairment. However, the court upheld an order requiring the respondents to reinstate temporary disability benefits pursuant to Rule IX (C) (1) (a) and Rule IV (G). The court reasoned these rules are consistent with the statutory scheme under which temporary disability benefits continue until MMI, and medical impairment benefits, if any, commence on the date of MMI. See § 8-42-105(3)(a), C.R.S. 2001; § 8-42-107(8)(d), C.R.S. 2001. Hence, in order to maintain continuity of benefits pending final adjudication of the claimant's rights, the rules prohibit respondents from unilaterally terminating temporary disability benefits without taking a position concerning the claimant's entitlement to medical impairment benefits.
Here, the respondents' June 8 admission terminated the claimant's entitlement to temporary disability benefits based on Dr. Weinstein's May 24, 2000 report that the claimant reached MMI on June 11, 1999. However, as the ALJ explicitly found, the May 24 report did not indicate whether or not Dr. Weinstein believed the claimant had any permanent medical impairment, and no such statement was forthcoming until June 15, 2000.
Under the circumstances, the undisputed facts establish that when the respondent filed the June 8 admission it lacked any legal or factual basis for deciding whether the claimant had sustained any permanent medical impairment. Even though the June 8 admission might be construed as taking the position that the claimant did not sustain any permanent medical impairment, that position was not based on any rational argument or evidence then available to the respondents. We recognize the ALJ's finding that a week later, on June 15, 2000, the respondent received the second fax from Dr. Weinstein stating the claimant did not sustain any permanent medical impairment. However, this information was received after the respondent had already filed the June 8 admission, and the information provided June 15 cannot serve as a factual predicate for an admission of liability which the respondents had already filed. Cf. Miller v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 00CA1739, May 24, 2001) (in determining whether an insurer's conduct is "wrongful" for the purpose of imposing a penalty under § 8-43-401(2)(a), the reasonableness of the insurer's actions must be "evaluated as of the time of the conduct" so as to prevent imposing a strict liability standard dependent on the ultimate outcome of the case). If we were to conclude the respondents conduct in this case complied with Rule IX (C) (1) (a), we would encourage respondents to engage in conduct likely to result in the very interruptions of benefits which the rule is designed to prevent. Monfort Transportation v. Industrial Claim Appeals Office, supra.
However, it does not follow that a penalty is mandated under the facts of this case. Rule IX (C) (1) (b), 7 Code Colo. Reg. 1101-3, provides for the termination of temporary disability benefits without a hearing by the filing of an admission if the admission is accompanied by a "medical report from the authorized treating physician who has provided the primary care, stating the claimant is able to return to regular employment." The M-3 which Dr. Weinstein faxed to the respondent on May 24, 2000, might be interpreted as releasing the claimant to regular employment and providing a rational basis for terminating temporary disability benefits pursuant to Rule IX (C) (1) (b). (See Dr. Weinstein's response to paragraph 11 of M-3, as discussed above). However, the ALJ did not consider this issue. Consequently, we direct the ALJ to make findings of fact and enter conclusions of law determining whether the respondents had a rational basis in law or fact for terminating the claimant's temporary disability benefits on June 11 pursuant to Rule IX (C) (1) (b).
II.
The respondents contend the ALJ erred in ordering temporary total disability benefits commencing June 15, 1999. The respondents first argue the ALJ was bound by Dr. Weinstein's determination the claimant reached MMI on June 11, and was not entitled to credit the opinion of Dr. Jenks because Dr. Jenks did not examine the claimant until August 2000. We reject this argument.
Section 8-42-107(8)(b)(I), C.R.S. 2001, provides that an authorized treating physician shall make a determination as to when the claimant reaches MMI. Sections 8-42-107(8)(b)(II) and (III), C.R.S. 2001, provide that the authorized treating physician's finding of MMI is binding unless a party challenges that determination by obtaining a Division-sponsored independent medical examination (DIME). The finding of the DIME physician then becomes binding unless overcome by clear and convincing evidence. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
However, our courts have held that an ALJ may determine the issue of MMI as a matter of fact, and without requiring a DIME, where multiple attending physicians offer conflicting opinions concerning whether the claimant has reached MMI, or where a single treating physician offers conflicting or ambiguous opinions concerning MMI. Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996). Once a treating physician determines the claimant has reached MMI, the claimant may not retain additional physicians for the purpose of constructively challenging the MMI determination. See Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995). Thus, we have long held that for purposes of determining whether there are conflicting opinions between authorized treating physicians, it is critical to determine the identity of the authorized treating physicians on the date MMI is first pronounced. Eg. Murphy v. Lower Valley Hospital Association, W.C. No. 3-101-327 (June 23, 1995).
At the time ALJ Wheelock entered her order, ALJ Stuber had already determined that Dr. Jenks was an authorized treating physician as of May 10, 1999. Consequently, Dr. Jenks was an authorized treating physician at the time Dr. Weinstein opined the claimant reached MMI on June 11, 1999. Therefore, this case presents a genuine conflict of opinion between treating physicians concerning the date on which the claimant reached MMI. The mere fact that Dr. Jenks did not examine the claimant until after the alleged date of MMI does not alter his status as an authorized treating physician. Neither does that fact render Dr. Jenks' opinion concerning MMI incredible as a matter of law. Rather, it was for the ALJ to assess the credibility of Dr. Jenks' retrospective opinion concerning MMI. Cf. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999) (surgeon's "retroactive opinion" concerning the claimant's capacity to work on a date prior to the examination went to weight of the opinion). Thus, the evidence supports the ALJ's determination the claimant did not reach MMI on June 11, 1999, and temporary disability benefits cannot be terminated on this basis.
The respondents also argue the evidence does not support the ALJ Wheelock's conclusion the claimant was disabled between June 15, 1999 and the date of Dr. Jenks' examination in August 2000. In support of this argument, the respondents rely on Dr. Weinstein's May 24 release to regular employment. We remand for a new order concerning this issue.
Section 8-42-105(3)(c), C.R.S. 2001, provides the claimant's right to temporary total disability benefits ceases when the "attending physician gives the employee a written release to return to regular employment." This issue is distinct from and must be considered separately from the question of whether the claimant has reached MMI. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995). In order for a release to regular employment to be effective, it must be physically delivered to the claimant. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997). Further, if multiple authorized treating physicians offer conflicting opinions concerning the claimant's ability to perform regular employment, or a single authorized treating physician issues conflicting or ambiguous opinions, the ALJ may resolve the issue as a matter of fact. Bestway Concrete v. Industrial Claim Appeals Office, supra.
Here, Dr. Weinstein's May 24, 2000 M-3 provides some evidence from which the ALJ could find the claimant was released to regular employment by an attending physician. However, even if ALJ Wheelock were to credit this release, it would not be effective until delivered to the claimant. More importantly, Dr. Weinstein's May 24 release to regular employment, appears to be inconsistent with his report of June 15, 1999, and contrary to the opinion of Dr. Jenks expressed in his report of August 23, 2000. Moreover, Dr. Weinstein himself apparently has issued conflicting opinions. Thus, there is an issue of fact concerning whether or not the claimant has been released to regular employment.
ALJ Wheelock's order does not address what effect, if any, the May 24 M-3 has with respect to the claimant's ability to perform regular employment. The matter must be remanded for entry of an order concerning this issue, and resolution of the issue shall be consistent with the views expressed herein. Because there is no evidence the claimant was ever physically provided with a release to regular employment prior to May 24, 2000, or that such a release even existed, the ALJ's order must be affirmed insofar as it awards temporary total disability benefits prior to that date.
IT IS THEREFORE ORDERED that ALJ Wheelock's order dated October 18, 2000, is set aside insofar as it denied penalties based on the respondents' alleged violation of Rule of Procedure IX. On this issue, the matter is remanded for entry of a new order consistent with the views expressed herein.
IT IS FURTHER ORDERED that the ALJ Wheelock's order is affirmed insofar as it awards temporary disability benefits from June 15, 1999 through May 24, 2000.
IT IS FURTHER ORDERED that ALJ Wheelock's order is set aside insofar as it awards temporary disability benefits after May 24, 2000, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed September 21, 2001 to the following parties:
Carl Strombitski, 3020 Leoti Dr., Colorado Springs, CO 80922 Dominos/Mand Made Pizza, 5735 Industrial Pl., Colorado Springs, CO 80916-1723
Linda Giovanni, Reliance Gallagher Bassett Services, P. O. Box 4068, Englewood, CO 80155
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
James B. Fairbanks, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy