August 24, 2019

Colorado Court of Appeals: Filing Application for Hearing Concerning the Propriety of the DIME Selection Process Automatically Stays DIME Proceedings

The Colorado Court of Appeals issued its opinion in Munoz v. Industrial Claim Appeals Office on May 12, 2011.

Workers’ Compensation—Division-Sponsored Independent Medical Examination—Automatic Stay.

In this workers’ compensation proceeding brought against JBS Swift & Company and its insurer, Zurich American Insurance Company, (collectively, employer), claimant sought review of a final order of the Industrial Claim Appeals Office (Panel). The order was affirmed in part and reversed in part, and the case was remanded.

The Panel affirmed the order of the administrative law judge (ALJ), which concluded that claimant waived his right to a division-sponsored independent medical examination (DIME) and dismissed his claim for penalties against the DIME Unit for the Division of Workers’ Compensation.

On appeal, claimant contended that the ALJ erroneously concluded that (1) the filing of an application for hearing concerning the propriety of the DIME selection process did not automatically stay the DIME proceedings; and (2) claimant waived his right to a DIME. Imposition of a stay under Rule 11-3(O) requires “a motion involving a pending IME proceeding.” An application for a hearing serves the same function as a motion. Here, claimant’s application for hearing on the DIME selection issue sufficed as a “motion” for purposes of Rule 11-3(O). Once that application was filed and the DIME Unit was copied, the DIME process was automatically stayed. The ALJ erred in concluding otherwise. Further, because the DIME process was stayed, the finding of waiver was not supported and must be set aside. Claimant could not knowingly waive the DIME when the DIME process was stayed. Employer’s request for attorney fees was denied and the case was remanded for the ALJ’s reconsideration of the DIME issue in claimant’s first application for hearing.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on May 12, 2011, can be found here.

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