Colorado DIME Physician's Opinion Not Always Given Presumptive Deference

DIME Physician’s Opinions as to the Cause of Engineer’s Narcolepsy Not Afforded Special Deference

By virtue of a special Colorado statute [Colo. Rev. Stat. § 8-42-107(8)(b)(III)], a division-sponsored independent medical examination (DIME) physician’s opinions concerning maximum medical improvement and impairment are given presumptive weight. That sort of deference is not, however, to be given a DIME physician’s opinion as to causation, held a division of the state’s Court of Appeals [see Yeutter v. Industrial Claim Appeals Office (CBW Automation, Inc.), 2019 COA 53, 2019 Colo. App. LEXIS 549 (Apr. 11, 2019)]. Accordingly, where an engineer sustained admitted, serious injuries, including a skull fracture in a work-related accident and, more than a year later, developed a sleep disorder that several medical experts said was consistent with narcolepsy, a DIME physician’s opinion that deferred to the opinions of three treating specialists who had earlier indicated the condition was causally connected to the workplace accident was not entitled to presumptive deference.

Background

Claimant returned to work two weeks after the August 2012 accident, but voluntarily resigned two months later, having taken a position as a mechanical engineer for another company, working nine or ten hours per day, with some weekend and evening work as well. He held that position until February 2015.

More than a year after the incident, claimant’s physical injuries had “stopped hurting so much,” but he felt fatigued. In July 2014, one of his authorized treating physicians, Dr. Carol Newlin, prescribed Adderall and Ritalin as stimulants to help him “get through [his] day.” A sleep study conducted one month later by another treating physician, Dr. Mark Neagle, revealed sleep patterns consistent with narcolepsy. A professor of psychiatry at the University of Colorado, Dr. Martin Reite, corroborated the narcolepsy diagnosis, indicating it was “most likely post-traumatic in origin.”

Dr. Reite went on to note that the cause of narcolepsy is varied, can be idiopathic, familial (genetic influence and running in families), or triggered by viral infection or head trauma, “as in [claimant’s] case.” Finally, Dr. Reite opined that claimant “is seriously disabled as a result of his narcolepsy and other trauma related conditions, and his prognosis at this time is guarded.”

Claimant Reached MMI

On August 26, 2015, claimant was placed at MMI by his primary authorized treating physician, Dr. Kevin O’Toole. He rated claimant’s permanent impairment at 67% of the whole person, which he calculated by combining impairment ratings for claimant’s mental health, sleep and arousal disorders, and vision impairment. Three mental health and medical experts retained by the employer disagreed with Dr. O’Toole’s assessment, however.

DIME Physician’s Opinion

After the employer obtained these independent medical examination reports, claimant underwent a division-sponsored independent medical examination (DIME) with Dr. Albert Hattem. Dr. Hattem agreed with Dr. O’Toole that claimant reached MMI on August 26, 2015. But, he assigned claimant a lower impairment rating — 39% of the whole person. Dr. Hattem was less certain about the cause of claimant’s narcolepsy, though, and deferred to claimant’s treating physicians on the question, based upon his own lack of experience with the condition.

ALJ’s Decision and Split Panel’s Decision

The ALJ found that claimant failed to demonstrate that it was more probably true than not that his narcolepsy was caused by the industrial accident. The ALJ was persuaded by Dr. D’Angelo’s (one of the employer’s experts) testimony that because traumatic brain injuries were acutely symptomatic, the delayed onset of claimant’s narcolepsy symptoms suggested an attenuated causal relationship between his accident and the development of narcolepsy. A divided Panel affirmed, rejecting claimant’s contention that the ALJ was bound by the DIME’s conclusion that claimant’s narcolepsy was related to the work accident. The Panel noted that neither MMI nor impairment was at issue before the ALJ. Thus, the Panel held, the DIME physician’s causation determination held no presumptive weight and claimant bore the burden of proving his entitlement to PTD benefits by a preponderance of the evidence.

ALJ Not Bound by DIME’s Causation Analysis

The appellate court acknowledged that under Colo. Rev. Stat § 8-42-107(8)(b)(III), a DIME physician’s opinions concerning MMI and impairment are, by express statutory edict, afforded presumptive weight. Those issues had been conceded by the employer. In seeking PTD benefits and maintenance medical benefits, claimant bore the burden of establishing his entitlement to these benefits by a preponderance of the evidence.

The court declined to extend the statute’s presumptive reach to causation. The ALJ was not bound by Dr. Hattem’s causation determination and committed no error when he denied and dismissed claimant’s claims for PTD and maintenance medical benefits.

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