Colorado ALJ May Not Find MMI Without Appropriate Expert Medical Opinion

A Colorado appellate court recently held that a workers’ compensation claimant may not be placed at the point of maximum medical improvement (MMI) where neither the claimant’s treating physician nor the physician conducting the division-sponsored independent medical examination (DIME) has placed the injured worker at MMI. Accordingly, the state’s Industrial Claim Appeals Office (“Panel”) erred when it upheld an ALJ’s order doing so [Burren v. Industrial Claim Appeals Office, 2019 COA 37, 2019 Colo. App. LEXIS 347 (Mar. 7, 2019)].

Background

In 2014, claimant sustained admitted work-related injuries to her arm and shoulder. Several physicians treated her for her injuries well into 2017. Despite several years of treatment, claimant complained that her pain continued to worsen. She testified that none of the treatment she received improved her condition. None of claimant’s treating physicians placed her at MMI.

In August 2016, a physician retained by the employer opined that claimant had reached MMI, with no permanent impairment for subjective complaints of pain. A bit later, the employer requested a twenty-four-month DIME pursuant to section 8-42-107(8)(b)(II), C.R.S. 2018, because no treating physician had placed claimant at MMI in the two years that had elapsed since her work-related injury. Dr. Clarence Henke was selected to perform the DIME. He examined claimant and opined that claimant suffered from right ulnar nerve compression, right median nerve compression at wrist level, right rotator cuff tendinitis, and cervical myalgia. As pertinent in the case, however, he also determined claimant was not at MMI.

ALJ Hearing

The employer sought a hearing to overcome Dr. Henke’s DIME opinion. The employer’s examining physician testified, criticizing the Dr. Henke’s DIME report by pointing out that Dr. Henke did not rate claimant’s impairment as required, failed to explain why he concluded claimant was not at MMI, and recommended follow-up treatment without specifying the treatment needed. Hearing this and claimant’s testimony, the ALJ ruled that employer clearly and convincingly overcame the DIME.

Having found that employer overcame the DIME, the ALJ determined that claimant reached MMI on June 28, 2016. The Panel upheld the ALJ’s order, concluding that substantial evidence supported the decision. The Panel disagreed with claimant’s position that an ALJ could not find a claimant to be at MMI unless a treating physician or the DIME had placed the claimant at MMI. In the Panel’s view, once an ALJ determined that a DIME physician’s MMI opinion has been clearly and convincingly overcome, “the ALJ was required to determine the claimant’s MMI date as a matter of fact.”

Appellate Court

On appeal, claimant again contended that the Panel and the ALJ had misinterpreted section 8-42-107(8)(b). The appellate court was not persuaded by a line of cases offered by the employer that interpreted the statute as requiring the ALJ to determine the MMI date as a matter of fact if the ALJ determined that the DIME physician’s MMI opinion had been overcome by clear and convincing evidence. In each case cited by the employer, there had been a conflict between the DIME and the authorized treating physician (ATP), which required resolution by the finder of fact.

No Conflict to Resolve

The court continued that here, however, there was no conflict between the ATP’s and DIME physician’s opinions; both had agreed claimant had not reached MMI. Consequently, there was no conflict for the ALJ to resolve. The court recognized that its interpretation of the statute effectively precluded an employer’s ability to challenge a twenty-four-month DIME when the DIME agreed with the ATP that a claimant was not at MMI. The court stressed that where the DIME and the ATP agreed that a claimant was not at MMI, treatment should continue until either the DIME or the ATP placed the claimant at MMI. The court observed that nothing in its opinion prohibited an employer from re-invoking the twenty-four-month DIME process at an appropriate time in the future.

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