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Town of Ignacio v. Industrial Claim Appeals Office of the State of Colorado11/7/2002
hat case found that, where the authorized primary care treating physician issues conflicting opinions concerning MMI, it is for the ALJ to resolve the conflict, and the ALJ may do so without requiring the claimant to obtain a DIME. Blue Mesa Forest v. Lopez, supra, 928 P.2d at 833.
The Blue Mesa Forest case, then, involved the resolution of conflicting opinions of one physician, and the ALJ therefore was not faced with a conflict involving the competing MMI determinations of multiple treating physicians.
The division in Blue Mesa Forest never specifically stated that an ALJ has the power, in the absence of a DIME, to decide such contests. Although the division generally relied on Burns v. Robinson Dairy, Inc., 911 P.2d 661, 662 (Colo. App. 1995), which recognized an ALJ's authority to disregard an otherwise conclusive release to work by the attending physician when multiple attending physicians had issued conflicting opinions, that case concerned the termination of temporary disability benefits. The statutory process involved in the termination of temporary disability benefits based upon a release to work does not afford any opportunity similar to the DIME procedure to challenge the effect of the release. See Bestway Concrete v. Indus. Claim Appeals Office, supra, 984 P.2d at 685.
Consequently, we conclude that the Panel erred in relying on Blue Mesa Forest (or even Burns) as legal authority for the proposition that an ALJ can make MMI determinations based on differences in the opinions of authorized treating physicians.
The remaining question is whether the specialist who treated claimant made an MMI determination that was challengeable, if at all, only through the use of a DIME. Although the specialist purported to make an MMI determination, he also stated that claimant might seek additional surgery if her pain continued, implying that claimant was not at MMI. See ยง 8-40-201(11.5), C.R.S. 2002 (defining MMI as that "point in time 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"); Magnetic Eng'g, Inc. v. Indus. Claim Appeals Office, supra, 5 P.3d at 388 (recommendation that surgery be explored provides sufficient support for an inference that the physician did not believe MMI had been reached).
We conclude that the specialist's report was ambiguous with respect to MMI and that the matter must be remanded for a factual determination as to whether the specialist found claimant to be at MMI. Cf. MGM Supply Co. v. Indus. Claims Appeals Office, 62 P.3d 1001, 1005 (Colo. App. 2002)(ALJ must resolve ambiguities in DIME physician's report regarding whether claimant is at MMI).
The order of the Panel is set aside, and the case is remanded with directions that the ALJ determine whether, consistent with the views expressed in this opinion, claimant was at MMI and, accordingly, whether claimant was entitled to the relief requested. In resolving these issues, the ALJ has the discretion to receive further evidence.
JUDGE TAUBMAN and JUDGE CRISWELL concur.
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