ORDER OF REMAND

The respondents seek review of an order of Administrative Law Judge Jones (ALJ) which determined the claimant is not at maximum medical improvement (MMI) and ordered the respondents to provide medical treatment as directed by the authorized treating physician (ATP). We set the order aside and remand for entry of a new order.

The claimant sustained an injury to her left shoulder in January 2002. After conservative therapy failed, the ATP referred the claimant for surgery. On January 13, 2003, the ATP issued a report which placed the claimant at MMI with a 6 percent upper extremity impairment rating, and released the claimant from care.

The respondents filed a notice and proposal to select a Division-sponsored independent medical examination (DIME) physician. On the notice and proposal form the respondents' insurance adjuster checked a box stating that the DIME was requested on the issue of permanent impairment, but the adjuster did not check the box for MMI.

The DIME physician issued a report on September 24, 2003, opining that the claimant is not at MMI because she suffers from neurological symptoms which require further evaluation. Nevertheless, the DIME physician issued an "incomplete" 24 percent upper extremity impairment rating, which he converted to a 14 percent whole person rating.

In March 2004 the ATP issued a report agreeing with the DIME physician that the claimant needs further testing to determine the cause of her ongoing symptoms. The ALJ interpreted this report as an opinion that the claimant never reached MMI.

The respondents applied for a hearing on the issues of permanent partial disability benefits (PPD) and a penalty issue which is not now relevant. Essentially, the respondents argued the claimant was limited to a scheduled award for the shoulder unless she could prove functional impairment beyond the arm at the shoulder. The claimant argued she is not at MMI because the ATP's March 2004 opinion shows he was "mistaken" when the claimant was initially placed at MMI in January 2003.

The ALJ, relying on Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996), found the ATP issued conflicting opinions concerning MMI, and that the March 2004 report proves the ATP's true opinion is that the claimant is not at MMI without additional evaluations. Consequently, the ALJ found the issue of PPD is "not ripe" and ordered the respondents to provide the evaluations by the ATP.

On review, the respondents contend the ALJ's order is erroneous because she lacked jurisdiction to consider the issue of MMI. In support of this argument the respondents cite a series of our decisions addressing the problem of the "limited issue" DIME. These decisions hold that if the DIME physician was not requested to address the issue of MMI but does so anyway the DIME physician's opinion that the claimant is not at MMI is "gratuitous" and not entitled to any special weight. The respondents argue these decisions are relevant here and lead to the conclusion that the ATP's January 2003 finding of MMI is binding on the parties and the ALJ. Because of a change in the relevant rules of procedure we conclude that our prior decisions are no longer persuasive. Consequently, we remand for entry of a new order.

Under § 8-42-107(8)(b)(I), C.R.S. 2004, an ATP makes the initial determination of when the claimant reaches MMI. The ALJ may not alter the ATP's finding of MMI unless a party first disputes the determination by requesting a DIME. The DIME physician's opinion concerning MMI then becomes binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(b)(II) (III), C.R.S. 2004; Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). However, if the ATP issues ambiguous or conflicting opinions concerning MMI, the ALJ may resolve the ambiguity as a matter of fact without the necessity of a DIME. Town of Ignacio v. Industrial Claim Appeals Office, 70 P.3d 513 (Colo.App. 2002). Significantly, the opinion of the ATP physician is entitled to deference only if the DIME procedure has not been used. Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995).

In the line of cases cited by the respondents the party seeking a DIME requested that the issue be limited to impairment. Nevertheless, the DIME physician considered MMI and opined that the claimant was not at MMI. The issue then became whether the DIME physician's opinion that the claimant was not at MMI was binding unless overcome, or whether the ATP's finding of MMI remained binding because no party had "disputed" it by requesting that the issue of MMI be considered by the DIME physician. Shaffer v. Golden Technologies, W.C. No. 4-326-734 (July 9, 2001); Del Valle v. Moorhead Machinery Boiler Co., W.C. No. 4-196-156 (January 12, 2001); Carroll v. Cunningham Construction, W.C. No. 3-113-816 (May 14, 1996), aff'd. Cunnigham Construction v. Carroll, (Colo.App. No. 96CA1008, December 12, 1996) (not selected for publication).

Our holding in this line of cases is summarized from the following language from the Del Valle decision.

In some cases, a party requests a DIME to address the issue of medical impairment for purposes of § 8-42-107(8)(c), C.R.S. 2000, but neither party requests the DIME physician to consider the issue of MMI. In such cases, we have held the treating physician's determination of MMI remains binding on the parties even if the DIME physician gratuitously renders an opinion on the issue of MMI. [citation omitted]. In Carroll, we reasoned the ALJ may not alter the treating physician's finding of MMI unless a party "disputed" the finding by invoking the IME process in accordance with subsection (8)(b). We also stated the following:

Further, there is nothing inherently inconsistent in requesting an IME for the purpose of determining medical impairment under § 8-42-107(8)(c), C.R.S. (1995 Cum. Supp.), without requesting an IME for the purpose of determining MMI. The parties may be satisfied with the authorized treating physician's opinion concerning the date of MMI, but seek an IME for the limited purpose of contesting the degree of permanent medical impairment. In fact, permitting parties to limit the scope of their request for an IME serves the statutory purpose of reducing litigation concerning MMI.

The problem in the Carroll line of cases arose because the DIME physician found the claimant was not at MMI despite the fact that neither party requested the DIME to consider that issue. However, this line of cases involved DIME requests which occurred prior to the April 30, 2001 effective date of Rule of Procedure XIV (L)(3)(a)(5), 7 Code Colo. Reg. 1101-3 at 53-54. This rule provides as follows:

The parties may agree to limit the issues addressed in an IME exam. Such agreement shall be reduced to writing, signed by both parties, and provided to the IME unit no later than five (5) days prior to the appointment date. An opinion from an IME examiner concerning MMI, impairment or apportionment in a case in which the parties agreed to limit such issue, is not entitled to any weight before an administrative law judge. (Emphasis added).

Under the plain meaning of this regulation a request for a DIME effectively constitutes an automatic "dispute" of the ATP's findings of both MMI and impairment unless the parties expressly agree to the contrary. Thus, the regulation negates the rulings in the Carroll line of cases, all of which involved DIME requests prior to the adoption of the rule.

Here, there was no written agreement by the parties to limit the DIME to the issue of impairment. Consequently, under the rule the respondents' request for a DIME initiated a "dispute" on the issues of MMI and impairment, and the DIME physician's opinions on both issues became binding unless overcome by clear and convincing evidence.

It follows that we disagree with the respondents' argument that the ALJ lacked jurisdiction to consider whether the claimant was at MMI. Rather, the respondents bore the burden of proof to overcome the DIME physician's finding of MMI by clear and convincing evidence. The ALJ did not reach this issue because she concluded that the ATP did not place the claimant at MMI. However, at the time the ATP issued the March 2004 report the DIME process had already been completed. Consequently, it was the DIME physician's opinion which was entitled to special weight, and the ATP's opinion was not binding on the ALJ. Postlewait v. Midwest Barricade, supra. Consequently, the matter is remanded to the ALJ to determine whether the respondents overcame the DIME physician's finding that the claimant was not at MMI. The ALJ may conduct such additional proceedings as she deems necessary to resolve this issue.

IT IS THEREFORE ORDERED that the ALJ's order dated June 14, 2004, is set aside, and the matter is remanded for further proceedings and entry of a new order consistent with the views expressed herein.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ David Cain

____________________________________ Robert M. Socolofsky

Tanessa Hernandez, Greeley, CO, Swift Newspapers d/b/a Greeley Publishing Company, Greeley, CO, Joseph Barbara, Safeco Insurance Company of America, St. Louis, MO, Michael D. Mullison, Esq., Greeley, CO, (For Claimant).

Douglas A. Thomas, Esq., Greenwood Village, CO, (For Respondents).