IN RE MARSHALL, W.C. No

FINAL ORDER

The claimant seeks review of a final order of Administrative Law Judge Gandy (ALJ) which denied his claim for temporary disability benefits from December 16, 1992, the date Dr. Jenkins' determined the claimant to be at maximum medical improvement (MMI), and October 14, 1994. We affirm.

The record reveals that the claimant suffered an admitted right ankle injury on July 21, 1991. In the course of treatment, the claimant was examined by Dr. Talbot and Dr. Ewing. In June 1992 Dr. Ewing diagnosed a "probable post-traumatic neuropathy in the area of the posterior tibial nerve," and prescribed a non-steroidal medication. Dr. Talbot reported that the claimant's problems could not be totally related to an orthopedic problem, and recommended a psychiatric consultation by Dr. Yost. On September 30, 1992, Dr. Yost diagnosed clinical depression, and prescribed anti-depressant medication.

On December 16, 1992 Dr. Ewing reported that the claimant reached MMI, and the respondents terminated the payment of temporary total disability benefits. The claimant objected and requested a Division-sponsored independent medical examination (IME) under the provisions of § 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.). The IME physician, Dr. Jenkins, concurred with Dr. Ewing's determination of MMI and rated the claimant's impairment as five percent of the lower extremity.

The ALJ determined that the claimant failed to overcome Dr. Jenkins' finding of MMI by "clear and convincing evidence." However, the ALJ found that the claimant's condition subsequently worsened to the point that he was no longer at MMI effective October 14, 1994. Therefore, the ALJ ordered the respondents to reinstate temporary disability benefits commencing October 14, 1994.

On review the claimant first contends that the ALJ failed to determine whether he was at MMI for the psychological component of the injury. We disagree.

The ALJ is not held to a crystalline standard in articulating his factual determinations. George v. Industrial Commission, 720 P.2d 624 (Colo.App. 1986). Here, the ALJ's findings reflect his consideration of the fact that the claimant was receiving psychological treatment from Dr. Yost. (Finding of Fact 6). As the claimant concedes, the ALJ also expressly recognized the claimant's theory that Dr. Jenkins did not determine whether the claimant had reached MMI from the psychological component of the injury. (Tr. pp. 36-38); CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev'd on other grounds at 783 P.2d 269 (1989) (the ALJ's oral findings may be considered to interpret the ALJ's written findings). However, the ALJ did not find the claimant's theory persuasive, and determined that the claimant failed to sustain his burden to overcome Dr. Jenkins' finding of MMI. (Conclusions of Law 2). This determination necessarily reflects a finding that Dr. Jenkins' determined the claimant to be at MMI from all components of the industrial injury.

Moreover, the record supports the ALJ's interpretation of Dr. Yost's report. Section 8-40-201(11.5), C.R.S. (1996 Cum. Supp.) provides that MMI occurs when the claimant's condition from the industrial injury "has become stable and when no further treatment is reasonably expected to improve the condition." In determining that the claimant reached MMI, Dr. Jenkins' explicitly referenced the fact that the claimant had been seen by Dr. Yost, and like Dr. Ewing, Dr. Yost "was unable to significantly improve his pain and discomfort." We agree with the ALJ that this evidence supports an inference that Dr. Jenkins determined the claimant to be at MMI from both the orthopedic and the psychological injuries.

Alternatively, the claimant contends that the ALJ erred in failing to find that the claimant overcame Dr. Jenkins' MMI determination by clear and convincing evidence. In support, the claimant asserts that Dr. Yost was the primary care physician for the psychological component of the industrial injury, that Dr. Yost did not determine the claimant to be at MMI as of December 16, 1992, and that he was still treating with Dr. Yost as of December 16, 1992. Further, the claimant baldly asserts that Dr. Jenkins was neither qualified to determine whether he was at MMI for the psychological component of the injury, nor was Dr. Jenkins requested to determine MMI for the psychological injury. We reject these arguments.

Section 8-40-201(11.5) states that the need for future medical treatment which will not significantly improve the claimant's condition shall not affect a finding of MMI. Accordingly, the court has held that a determination of MMI is not inconsistent with the claimant's receipt of medical treatment required to maintain or prevent a deterioration of his condition from the industrial injury. Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).

Here, Dr. Yost's report of May 14, 1993 indicates that he examined the claimant on December 1, 1992, at which time he recommended that the claimant continue with anti-depressant medication. He also reported that the claimant did not appear for an appointment on January 26, 1992, and did not reschedule. According to Dr. Yost, he did not see the claimant again until May 11, 1993, at which time the claimant requested an appointment to discuss Dr. Jenkins' determination of MMI. However, at that time Dr. Yost did not observe significant evidence of depression, and did not intend to schedule any further appointments with the claimant, although he agreed to prescribe additional anti-depressant medication.

Contrary to the claimant's contention, this evidence is not necessarily inconsistent with Dr. Jenkins' implicit determination that the claimant's condition from the psychological component of the injury stabilized by December 16, 1992. Therefore, the fact that the claimant received additional treatment from Dr. Yost after December 16, 1992 did not preclude the ALJ from crediting Dr. Jenkins' opinion that the claimant reached MMI from the psychological injury on December 16, 1992.

It is also true that a claimant may have multiple "primary care" physicians, who have conflicting opinions on the issue of MMI. Rohr v. Interim Health Care, W.C. No. 4-177-445, September 13, 1994; Martinez v. Meadow Gold Dairy Products, W.C. Nos. 3-105-407, September 12, 1995. However, the determination of whether the claimant has multiple "primary care" physicians is a question of fact for resolution by the ALJ. Similarly, insofar as there is a conflict between the primary care physicians concerning whether the claimant has reached MMI, it is the ALJ's sole prerogative as the fact finder to resolve the conflict. Rohr v. Interim Health Care, supra.

Here, the ALJ determined that, as of December 16, 1992, the claimant had only one "authorized treating physician who was providing primary care" and that physician was Dr. Ewing. (Finding of Fact 8). Consequently, the absence of an MMI determination by Dr. Yost did not create a "conflict" which had to be resolved by the ALJ.

Moreover, the claimant provides no support for his assertion that Dr. Jenkins was not qualified to determine whether he was at MMI for the psychological injury. Neither are we persuaded by the claimant's contention that Dr. Jenkins was not asked to determine whether the claimant was at MMI from the psychological injury. The claimant's "Request for An Independent Medical Examination" lists the issue as "Maximum Medical Improvement," but does not limit the issue to the physical component of the injury. We also note that the Request includes Dr. Yost on the list of physicians who have already been assigned to the case. Thus, the record does not support the claimant's assertion that he only sought an IME concerning MMI for the orthopedic component of the injury.

IT IS THEREFORE ORDERED that the ALJ's order dated December 8, 1995, 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, 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. (1995 Cum. Supp.).

Copies of this decision were mailed September 5, 1996 to the following parties:

Eric E. Marshall, P.O. Box 784, Sterling, CO 80751

Veco Drilling, Inc., 600 17th St., Ste. 1625-N, Denver, CO 80202-5416

Colorado Compensation Insurance Authority, Attn: Carolyn Boyd, Esq. (Interagency Mail)

James E. Freemyer, Esq., 1750 High St., Denver, CO 80218 (For the Claimant)

Raymond F. Callahan, Esq. Patrick M. Plank, Esq., 3464 S. Willow St., Denver, CO 80231-4566 (For the Respondents)

BY: _______________________