FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Erickson (ALJ), which denied medical benefits. We reverse the contested portion of the order.
Insofar as pertinent, the claimant alleged that the effects of a 1994 industrial back injury aggravated his pre-existing psychological problems. Accordingly, the claimant sought an order requiring the respondents to pay for Dr. Ritsig's treatment of his psychological problems.
The respondents denied that the claimant's allegation of a causal connection between the injury and his psychological problems. Alternatively, the respondents relied upon the opinions of Dr. Metzner to argue that the claimant reached maximum medical improvement (MMI) from the aggravation of his pre-existing condition on January 1, 1995. See (Respondents' Hearing Brief dated October 28, 1996). Therefore, they contested liability for psychological treatment after that date.
The ALJ found that the claimant has a long history of treatment for psychiatric problems including treatment for chronic depression. However, the ALJ found that the pain and surgery associated with the back injury aggravated the claimant's pre-existing depression. Therefore, the ALJ determined that the claimant is entitled to medical benefits in the form of psychiatric treatment from Dr. Ritsig.
Crediting the opinions of Dr. Metzner, the ALJ also found that the aggravation of the claimant's pre-existing condition was "temporary," and only "lasted until January 1, 1995." In so doing, the ALJ expressly rejected Dr. Ritsig's opinion that the claimant's depression after January 1, 1995, "is related to" the compensable aggravation. Therefore, the ALJ terminated the respondents' liability for psychiatric treatment effective January 1, 1995.
On review, the claimant contends that the ALJ's findings are tantamount to a finding of MMI. Thus, the claimant contends that the ALJ exceeded his jurisdiction in determining MMI from the work-related psychiatric condition, and in relieving the respondents of liability for psychiatric treatment after January 1, 1995. We agree.
The issues presented here are similar to the circumstances in Kaltenborn v. Industrial Claim Appeals Office (Colo.App. No. 97CA0174, July 31, 1997) (not selected for publication), where the court set aside our order which upheld an ALJ's termination temporary disability and medical benefits. The facts in Kaltenborn involved a compensable aggravation of a pre-existing condition which disabled the claimant from performing his regular employment and necessitated psychological and medical treatment. An ALJ determined that the claimant sustained a compensable industrial injury in November 1991, and was not at MMI. Relying on the results of a Division-sponsored independent medical examination (IME), a second ALJ subsequently determined that the compensable injury involved a "temporary aggravation" of the preexisting condition, and that the claimant returned to his pre-injury "baseline" by July 12, 1993. Consequently, the second ALJ determined that the claimant was at MMI for the industrial injury and terminated the claimant's entitlement to temporary disability benefits and psychological treatment effective July 12, 1993.
The Court of Appeals construed the ALJ's findings as a de facto determination of MMI, and concluded that, in view of the procedural posture of the case, the ALJ did not have authority to determine MMI under § 8-42-107(8)(b), C.R.S. (1996 Cum. Supp.). Further, because the ALJ relied upon the finding that the claimant had returned to "baseline" in determining that psychological treatment after July 12, 1993 was not reasonable or necessary to cure and relieve the effects of the injury, the Kaltenborn court also held that the ALJ erroneously terminated medical benefits.
We are persuaded by the court's analysis in Kaltenborn v. Industrial Claim Appeals Office, supra, that in this matter, the ALJ erroneously determined the claimant to be at MMI. Furthermore, because the ALJ relied upon the MMI determination to terminate the claimant's entitlement to further psychiatric treatment, we set aside that portion of the order.
Section 8-40-201(11.5) defines MMI as:
"the 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." (Emphasis added).
As stated in Kaltenborn, § 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.) [amended 1996 for MMI determinations on or after July 1, 1996], provides that the initial determination of MMI is to be made by the "authorized treating physician who has provided the primary care," and if either party disputes that determination the claimant must undergo an IME. Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996) ; Aren Design, Inc. v. Becerra, 897 P.2d 902 (Colo.App. 1995). The statute also provides that the ALJ may not hold a hearing on the issue of MMI until the IME physician's report has been completed. See Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995).
Notwithstanding the respondents' arguments the ALJ's order confuses "causation" and MMI. Under § 8-42-107(8)(b), once the claimant proves a causal connection between the need for psychological treatment and the industrial injury, the duration of that causal relationship is a determination for the treating physician. See Fields v. TAD Temporaries, W.C. No. 4-185-877, September 7, 1995. In other words, the causal connection is presumed to continue until no further treatment is "reasonably expected to improve the condition."
Here, the ALJ's finding that the temporary aggravation of the claimant's preexisting condition "lasted until January 1, 1995," implicitly reflects a determination that the compensable component of the claimant's psychological problems was cured by January 1, 1995. Thus, the ALJ has necessarily found that the psychological component of the claimant's condition was "stable" as of January 1, 1995, and that the degree of mental impairment from the aggravation was determinable.
However, in this case, there is no assertion or finding that the statutory prerequisites for a hearing on the issue of MMI were met. Therefore, the ALJ exceeded his authority in determining MMI.
Moreover, a finding that further treatment is no longer "reasonable and necessary" cannot be read as giving the ALJ jurisdiction to determine MMI. This is especially true where as here, the ALJ determined that no further psychiatric treatment is reasonably necessary because any remaining psychological problems are not causally related to the injury. Thus, the ALJ erred in terminating the claimant's entitlement to psychiatric treatment.
IT IS THEREFORE ORDERED that the ALJ's order dated November 27, 1996, is reversed insofar as it terminates the respondents' liability for psychological treatment effective January 1, 1995.
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed November 26, 1997 to the following parties:
Uri Lissauer, 1200 S. Oneida, #16-306, Denver, CO 80224
Arapahoe House, Attn: Barbara Wieloszynski, 8801 Lipan St., Thornton, CO 80221
Peter H. McGuire, Esq., 1325 S. Colorado Blvd., #405, Denver, CO 80222 (For Claimant)
James B. Buck, Esq., 1777 South Harrison, Ste. #1110, Denver, CO 80210 (For Respondents)
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority — Interagency Mail
Debbie Lucero, Colorado Compensation Insurance Authority — Interagency Mail
By: __________________________