July 16, 2019

Colorado Court of Appeals: No Error in ALJ’s Finding of Claimant’s Attempt to Circumvent Burden of Proof

The Colorado Court of Appeals issued its opinion in Feliciano v. Industrial Claim Appeals Office on Thursday, May 19, 2016.

Workers’ Compensation—Reopening Claim—DIME—Maximum Medical Improvement.

Claimant sustained an injury, underwent treatment, and was placed at maximum medical improvement (MMI) by her authorized treating provider (ATP). Claimant requested a division-sponsored independent medical examination (DIME) to challenge the ATP’s MMI finding. The DIME physician agreed with the ATP’s MMI date and recommendation for treatment, and he rated claimant’s impairment. Claimant’s employer and its insurer filed a final admission of liability (FAL) based on the DIME.

Claimant did not object to the FAL but instead petitioned to reopen her claim less than two weeks after the FAL was filed and while her claim was still open. The administrative law judge (ALJ) denied and dismissed her petition, noting that the proper procedure would have been to challenge the DIME. The Industrial Claim Appeals Office affirmed and claimant appealed.

On appeal, claimant argued that the ALJ improperly disregarded her counsel’s arguments that she was not challenging the MMI finding and that the ALJ’s findings were not supported by substantial evidence. To reopen a claim, a claimant must show error, mistake, or change in condition. The reopening of a claim is within the sound discretion of the ALJ and may only be reversed for fraud or clear abuse of discretion. The ALJ found that claimant was filing to reopen a claim that wasn’t closed to avoid the higher burden of proof required to overcome a DIME. Claimant’s counsel admitted at oral argument that the petition to reopen was a “strategic” move taken because counsel did not believe claimant could overcome the DIME. The record supports the ALJ’s determination that claimant improperly used the reopening process to challenge the DIME.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: In Workers’ Compensation Proceeding, 18-Month DIME Physician’s Findings Carry No Presumptive Weight Regarding Impairment Ratings

The Colorado Court of Appeals issued its opinion in Meza v. Industrial Claim Appeals Office on Thursday, May 9, 2013.

Workers’ Compensation—Jurisdiction—Weight of Evidence—Substantial Evidence—CRS § 8-42-107(8)(b)(II).

In this workers’ compensation action, claimant sought review of a final order of the Industrial Claim Appeals Office (Panel). The order was affirmed.

Claimant sustained an admitted, compensable injury in 2004 when a cow bone fell on his right foot. On November 26, 2004 his authorized treating physician (ATP) placed him at maximum medical improvement (MMI) with no impairment and released him to work, with no restrictions. Plaintiff continued to experience pain and developed low back pain four years after his initial injury.

His employer, Swift Foods Company, and its insurer, Zurich American Insurance Company (collectively, employer), agreed to reopen the claim in 2008. A new ATP suspected claimant had developed complex regional pain syndrome (CRPS) and that his low back pain was related to the foot injury. Employer retained a physician to conduct an independent medical examination (IME). The physician found that claimant had reached MMI, and that the low back pain was unrelated to the 2004 injury.

Because the ATP had not placed claimant at MMI within eighteen months of commencing treatment, employer requested a division-sponsored independent medical examination (DIME). The DIME physician examined claimant in January 2010 and placed him at MMI as of the date of the exam. The DIME physician rated claimant’s impairment at 10% of the whole person for CRPS and 11% for his spine, giving him a 20% impairment rating of the whole person.

Employer filed a final admission of liability (FAL) based on the DIME physician’s MMI and impairment ratings. Claimant moved to strike the FAL, arguing that a physician performing an eighteen-month DIME is limited to determining MMI and may not give an impairment rating. An administrative law judge (ALJ) agreed with claimant, struck the FAL, and ordered claimant to see his ATP for a permanent impairment evaluation. The ATP rated claimant at 18% for his spinal injuries, 10% for CRPS, and 4% for the lower extremity, resulting in a total impairment rating of 27% of the whole person.

Employer requested a second DIME to review the ATP’s impairment rating. The second DIME agreed that claimant had reached MMI in January 2010, but rated his impairment at 18% of the whole person. In her deposition, however, she corrected herself and rated him at 4% of the whole person.

At the hearing, claimant objected to the second DIME physician’s opinions. The ALJ found that when claimant moved to strike the FAL he waived his opportunity to rely on any presumptive weight that might otherwise have been given to the eighteen-month DIME’s impairment rating. The ALJ awarded claimant PPD benefits based on an impairment rating of 10% of the lower extremity, but found claimant’s spine injury and CRPS unrelated and therefore awarded no benefits for those conditions. The Panel affirmed.

On appeal, claimant argued he was entitled to a higher impairment rating because (1) the ALJ was bound by the eighteen-month DIME physician’s opinions and therefore lacked jurisdiction to rule on the relatedness of his alleged CRPS and low back conditions; and (2) the ALJ improperly assigned him the burden of overcoming the second DIME’s opinion. The Court of Appeals disagreed.

Claimant argued the determination of the eighteen-month DIME physician’s opinion was binding on the ALJ because neither party had requested a hearing to challenge his opinions. In general, a DIME physician’s opinions concerning MMI and permanent medical impairment are given presumptive effect. However, the Panel has found this general rule does not govern as to impairment when an eighteen-month DIME determination is requested under CRS § 8-42-107(8)(b)(II), because it does not mention or address impairment. The Court found that this a reasonable interpretation of the statutory language and an eighteen-month DIME report under this section only carries presumptive weight concerning MMI.

Consequently, the causation findings associated with the impairment ratings carried no presumptive effect and were not jurisdictionally binding on the ALJ. The impairment rating was advisory only and did not statutorily close the issue of causation of impairment.

Claimant also argued that the ALJ “did not enforce the presumption of validity” associated with the eighteen-month DIME physician’s causation determinations. The Court found this argument premised on the incorrect notion that the eighteen-month DIME physician’s causation opinions were related only to MMI. To the extent they were related to impairment ratings, they were not subject to presumptive weight. It was for the ALJ to determine whether the impairment opinions expressed by the second DIME physician, including the causes of impairment, had been overcome by clear and convincing evidence. The ALJ’s findings in this regard will not be set aside if supported by substantial evidence in the record. The Court found such evidence in the record. The order was affirmed.

Summary and full case available here.