Opinion
W.C. No. 4-196-156
January 12, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ), which awarded ongoing medical benefits after maximum medical improvement (MMI) and denied the claim for permanent total disability benefits. The claimant argues determination of these issues was premature because the Division-sponsored independent medical examination (DIME) physician opined the claimant was not at MMI, and the respondents failed to overcome this determination by clear and convincing evidence. We affirm the ALJ's order.
The claimant sustained a compensable psychiatric injury, diagnosed as major depression with psychotic features, in February 1993. The claimant's treating physician placed the claimant at MMI on July 18, 1995, because the claimant was unwilling to accept further treatment. In January 1998, the treating physician opined the claimant is "totally disabled from any competitive work situation."
The respondents requested a DIME on the issue of permanent medical impairment, but neither party requested the DIME physician to address the issue of MMI. (Olin Depo. p. 6; Claimant's brief p. 2). However, on April 24, 1998, the DIME physician issued a report declining to rate the claimant because the DIME physician believed the claimant was not at MMI. Instead, the DIME physician believed the claimant needed additional "aggressive treatment" including medication and possible inpatient hospitalization. Nevertheless, on July 21, 1998, the DIME physician issued a 50 percent whole person rating after being notified by the Division of Workers' Compensation that the date of MMI was "not a legal issue" to be considered in the DIME. The respondents then filed a final admission of liability based on the DIME physician's impairment rating.
On August 13, 1998, the claimant objected to the final admission of liability to the extent it could be interpreted as precluding further medical care or denying a claim for permanent total disability benefits. In July 1999, the claimant filed an application for hearing listing the issues as medical treatment after MMI and permanent total disability benefits. At the hearing on November 12, 1999, counsel for the claimant reiterated that the issues to be considered were " Grover medical benefits" and permanent total disability benefits. Following the hearing, counsel for the claimant submitted a position statement arguing that the claimant proved entitlement to Grover medical benefits and permanent total disability benefits.
On February 1, 2000, the ALJ entered the order under review. The ALJ found the claimant proved entitlement to ongoing medical benefits after MMI. However, the ALJ denied the claim for permanent total disability benefits, finding that the claimant failed to prove the residual effects of the psychological injury preclude him from earning wages in the same or other employment.
On review, the claimant does not challenge the sufficiency of the evidence to support the ALJ's determination that he failed to prove entitlement to permanent total disability benefits. Instead, the claimant argues that because the DIME physician opined he is not at MMI, and because the ALJ did not find the respondents overcame this DIME physician's opinion by clear and convincing evidence, the issues of ongoing medical benefits and permanent total disability benefits are premature. Consequently, the claimant requests that we enter an order reinstating temporary disability benefits from the date they were terminated by the respondents. The respondents argue the issues of MMI and temporary disability benefits were not before the ALJ, and the claimant was prohibited from raising the issues because the DIME physician was never requested to address the issue of MMI. We agree with the respondents.
Issues not submitted to the ALJ and raised for the first time on appeal are considered to have been waived. Thus, we need not address them. Kuziel v. Pet Fair, Inc., 948 P.2d 103 (Colo.App. 1997); Pacheco v. Roaring Fork Aggregates, 897 P.2d 872 (Colo.App. 1995). Further, a party may not argue one legal position before the ALJ and assert a contrary legal position on appeal. See Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993).
At no point in the proceedings before the ALJ did the claimant contend he was not at MMI, that the ALJ should award temporary disability benefits, or that the issues of ongoing medical benefits after MMI and permanent total disability were premature. Indeed, the claimant's counsel vigorously contended in his post-hearing position statement that the claimant was entitled to medical benefits under Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988), and permanent total disability benefits.
The claimant's contention on appeal that he is not at MMI is inconsistent with the position he took at the hearing. Indeed, an award of Grover medical benefits assumes the claimant has reached MMI, but is entitled to ongoing medical benefits to relieve the effects of the injury or prevent future deterioration of the claimant's condition. Grover v. Industrial Commission, 759 P.2d at 711-712; Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995). Further, the claimant's assertion that he was entitled to permanent total disability benefits assumed that his condition was stable and the extent of permanent disability ascertainable. Section 8-40-201(11.5), C.R.S. 2000; Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995). Under these circumstances, we agree with the respondents that the claimant waived the argument that he was not a MMI and is entitled to temporary disability benefits.
However, even if we were to consider the issue on the merits, we would reject the claimant's argument. The statute currently codified at § 8-42-107(8)(b)(II), C.R.S. 2000, provides that if either party "disputes" an authorized treating physician's determination of MMI, the party must seek a DIME. The opinion of the DIME physician concerning MMI then becomes binding unless overcome by clear and convincing evidence. Section 8-42- 107(8)(b)(III), C.R.S. 2000. However, if no party seeks an IME on the issue of MMI, the treating physician's determination of MMI is binding on the parties. See Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996); Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995).
In some cases, a party requests a DIME to address the issue of medical impairment for purposes of § 8-42-107(8)(c), C.R.S. 2000, but neither party requests the DIME physician to consider the issue of MMI. In such cases, we have held the treating physician's determination of MMI remains binding on the parties even if the DIME physician gratuitously renders an opinion on the issue of MMI. Carroll v. Cunningham Construction, W.C. No. 3-113-816 (May 14, 1996), aff'd. Cunningham Construction v. Carroll, (Colo.App. No. 96CA1008, December 12, 1996) (not selected for publication). In Carroll, we reasoned the ALJ may not alter the treating physician's finding of MMI unless a party has "disputed" the finding by invoking the IME process in accordance with subsection (8)(b). We also stated the following:
Further, there is nothing inherently inconsistent in requesting an IME for the purpose of determining medical impairment under § 8-42-107(8)(c), C.R.S. (1995 Cum. Supp.), without requesting an IME for the purpose of determining MMI. The parties may be satisfied with the authorized treating physician's opinion concerning the date of MMI, but seek an IME for the limited purpose of contesting the degree of permanent medical impairment. In fact, permitting parties to limit the scope of their request for an IME serves the statutory purpose of reducing litigation concerning MMI.
Here, neither the claimant nor the respondents requested a DIME for the purpose of challenging the treating physician's determination that the claimant reached MMI in 1995. Instead, the respondents requested a DIME for the purpose of determining the claimant's medical impairment under subsection (8)(c). Thus, when the DIME physician opined the claimant had not reached MMI, that opinion was of no force or effect. Consequently, the ALJ did not err in addressing the issues of medical benefits after MMI and permanent total disability benefits. Carroll v. Cunningham Construction, supra.
In light of this determination, we need not reach the respondents' additional argument that the claimant's failure to raise a specific objection to the date of MMI as listed in the final admission constituted a waiver of the right to contest the issue.
IT IS THEREFORE ORDERED that the ALJ's order dated February 1, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Bill Whitacre
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. 2000. 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 January 12, 2001 to the following parties:
Daniel H. Del Valle, 520 Edna St., Pueblo, CO 81005
Mike Toyli, Moorhead Machinery Boiler Company, 3477 University Avenue Northeast, Minneapolis, MN 55418-1136
Laurie Iverson, Account Representative, Twin City Fire Insurance Company, 110 Woodland Pl., Park City, UT 84098
James A. May, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
W. Berkeley Mann, Jr., Esq., P. O. Box 22833, Denver, CO 80222 (For Respondents)
BY: A. Pendroy