April 20, 2019

Colorado Court of Appeals: ALJ Cannot Determine MMI Where No Physician Has Placed Claimant at MMI

The Colorado Court of Appeals issued its opinion in Burren v. Industrial Claim Appeals Office on Thursday, March 7, 2019.

Workers’ Compensation—Maximum Medical Improvement.

Burren sustained admitted work-related injuries to her arm and shoulder in 2014. Several physicians treated her for her injuries into 2017, but Burren complained that her pain continued to worsen and that none of the treatment improved her condition. None of her physicians placed her at maximum medical improvement (MMI).

In 2015 employer retained Dr. Fall to perform a medical examination of Burren. She did not find Burren at MMI, but in 2016 she found Burren had reached MMI. Employer then requested Dr. Henke to perform a 24-month division-sponsored independent medical examination (DIME) because no treating physician had placed Burren at MMI. Dr. Henke determined that Burren was not at MMI.

Employer then applied for a hearing to dispute Dr. Henke’s DIME opinion. The ALJ ruled that employer had clearly and convincingly overcome the DIME and found MMI was reached in 2016. An Industrial Claim Appeals Office panel (the Panel) upheld the ALJ’s order.

On appeal, Burren argued that the Panel and the ALJ misinterpreted C.R.S. § 8-42-107(8)(b) because an ALJ cannot determine a claimant’s MMI as a matter of fact without an authorized treating physician (ATP) placing her at MMI. She contended that if a DIME performed under the statute finds a claimant is not at MMI, treatment should proceed until an MMI determination is made. The court of appeals analyzed the statute and the Panel’s historical practices and concluded that when the DIME and the ATP agree that a claimant is not at MMI, treatment should continue until either the DIME or the ATP places the claimant at MMI. Thus, the ALJ and the Panel misinterpreted C.R.S. § 8-42-107(8)(b)(II). While the court’s conclusion effectively precludes an employer from challenging a 24-month DIME when the DIME agrees with the ATP that a claimant is not at MMI, it does not prohibit an employer from re-invoking the 24-month DIME process at an appropriate future time.

The order was set aside and the case was remanded to the Panel with directions to return it to the ALJ to enter an order consistent with the opinion.

Summary provided courtesy of Colorado Lawyer.

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