Opinion
W.C. Nos. 4-417-739, 4-361-057
June 6, 2001
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Jones (ALJ) which awarded temporary total disability benefits from June 8, 1999, to February 15, 2000, and temporary partial disability benefits thereafter. The respondent contends the evidence compels the conclusion that it overcame the Division-sponsored independent medical examination (DIME) physician's opinion the claimant was not at maximum medical improvement (MMI). In any event, the respondent contends the evidence does not support the ALJ's conclusion that the claimant was disabled. We affirm.
The claimant, a bus driver, sustained an admitted back injury on April 19, 1999. The respondent admitted liability for temporary total disability benefits commencing April 20, 1999. However, the respondent terminated temporary disability benefits on June 8, 1999, when the authorized treating physician opined the claimant reached MMI.
The claimant underwent a DIME. The DIME physician opined the claimant was at MMI from the physical effects of the injury, but was not at MMI for injury-related depression. Specifically, the DIME physician opined the claimant needed psychiatric treatment for a "grief reaction" stemming from the claimant's permanent restrictions and consequent inability to return to his career. (DIME report p. 18).
Resolving conflicts in the evidence, the ALJ found the respondent failed to overcome by clear and convincing evidence the DIME physician's finding the claimant was not at MMI on June 8. Crediting the opinions of the DIME physician over those of the claimant's treating physician, the ALJ found the claimant's psychological condition is related to the industrial injury of April 19. Consequently, the ALJ ordered temporary total disability benefits from June 8 and until February 15, 2000, when the employer provided modified employment. Thereafter, the ALJ awarded temporary partial disability benefits.
I.
On review, the respondent contends the evidence compelled the ALJ to find the claimant's depression was caused by preexisting non-industrial factors. The respondent also argues the testimony of the claimant's treating physician was more credible than that of the DIME physician, and the DIME physician received an inadequate history concerning preexisting depression. Further, the respondent argues the DIME physician attributed the claimant's depression to a preexisting condition, not the thoracic strain of April 19. We are not persuaded.
The DIME physician's finding the claimant has not reached MMI is binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(b)(III), C.R.S. 2000; Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). The question of whether the DIME physician's opinion has been overcome is one of fact for determination by the ALJ. Consequently, we must uphold the ALJ's order if supported by substantial evidence in the record. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
MMI exists when "any medically determinable physical or mental impairment as a result of injury has become stable and when no further treatment is reasonably expected to improve the condition." Section 8-40-201(11.5), C.R.S. 2000. Because the determination of MMI inherently requires a physician to consider which of the claimant's conditions are the "result of the injury," we have held the DIME physician's finding that a particular condition was caused by the industrial injury must be overcome by clear and convincing evidence. Fields v. TAD Temporaries, W.C. No. 4-185-877 (September 7, 1995); cf. Qual- Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998) (applying analogous concept to DIME physician's finding concerning cause of permanent medical impairment).
The respondent's argument notwithstanding, substantial evidence supports the ALJ's finding that the DIME physician's opinion the claimant sustained depression as a result of the April 19 injury is supported by substantial evidence in the record. The DIME physician was aware the claimant suffered from preexisting depression, but found the claimant was not under active treatment at time of the April 19 injury, and sought treatment soon after being placed at MMI. (Tr. p. 53). Although the DIME physician did not possess all of the claimant's medical records at the time he examined the claimant and issued his report, he did not change his opinion after being made aware of relevant information provided by the treating physician. (Tr. pp. 62-63). Further, the DIME physician was explicit in opining that the claimant's depression was to some extent the product of the April 19 injury. (Tr. pp. 63-64). Although the evidence was conflicting and could have been construed differently, we decline to substitute our judgment for that of the ALJ concerning the relative weight of the medical experts' opinions concerning the causes of the claimant's depression.
II.
The respondent next contends that even if the claimant is not at MMI for injury- related depression, the evidence does not support the award of temporary disability benefits after June 8, 1999. The respondent reasons there is no evidence that the psychological condition was disabling independent of the physical condition for which the claimant was placed at MMI. We disagree with the claimant's argument.
Once the claimant establishes entitlement to temporary disability benefits, such benefits must continue until the occurrence of one of the circumstances set forth in § 8-42- 105(3), C.R.S. 2000. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Here, the respondents assert the benefits were terminated in accordance with § 8-42-105(3)(a) because the claimant reached MMI for the physical condition which originally caused the claimant to become temporarily disabled.
However, as the claimant argues, we have previously held at MMI is not divisible and cannot be parceled out among the various components of a multi-faceted industrial injury. Parra v. Haake Farms, W.C. No. 4-396-744 (March 8, 2001); Bernard v. Current, Inc., W.C. No. 4-213-664 (October 6, 1997). The rationale for these decisions is that the determination and calculation of permanent disability benefits is contingent on the claimant reaching MMI. Section 8-42-201(11.5). A gap in benefits could occur if the claimant's temporary benefits are terminated because he reaches MMI for the physically impairing condition, but entitlement to permanent benefits cannot yet be determined because the claimant has not reached MMI for injury-related conditions, such as depression.
We are not persuaded to depart from our prior decisions. Consequently, because the claimant did not reach MMI for all injury-related conditions on June 8, 1999, the law compels the continuation of temporary total disability benefits until February 15, 2000, when the claimant was given work and became temporarily partially disabled.
Insofar as the respondent makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ's order dated October 5, 2000, is affirmed.
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. 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 June 6, 2001 to the following parties:
Louis Dash, 5400 Xanadu St., Denver, CO 80239-4063
Linda Tinker, Regional Transportation District, 1600 Blake St., Denver, CO 80202-1399
Neil D. O'Toole, Esq., 226 W. 12th Ave., Denver, CO 80204-3625 (For Claimant)
Rolf G. Asphaug, Esq., Regional Transportation District, 1600 Blake St., Denver, CO 80202-1399 (For Respondent)
BY: A. Pendroy