Opinion
W.C. No. 4-559-944.
February 8, 2005.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) which denied his request for medical benefits. The claimant contends the ALJ applied an incorrect standard in rejecting the finding of the Division-sponsored independent medical examination (DIME) physician that he was not at maximum medical improvement (MMI). We set the order aside and remand for entry of a new order.
The claimant sustained a compensable injury to his left upper extremity and shoulder on July 6, 2002. On March 10, 2003, an authorized treating physician (ATP) placed the at MMI with an 11 percent upper extremity impairment rating.
The respondents requested a DIME and on the application checked a box indicating that the issue for determination was "impairment rating." The respondents did not check the box for MMI. The claimant apparently never requested the DIME physician to address MMI.
On September 8, 2003, the DIME physician issued a report opining the claimant is not at MMI because he needs an orthopedic examination for continuing shoulder symptoms and declining to rate impairment. On September 19, 2003, the Division of Workers' Compensation IME Program issued an incomplete notice stating that the DIME physician was required to issue an impairment rating even though he found the claimant was not at MMI.
The respondents then moved to strike the DIME physician's September 8 report arguing that under some of our prior decisions, including Shaffer v. Golden Technologies, W.C. No. 4-326-734 (July 9, 2001), failure of the claimant to designate MMI as an issue constituted a waiver and the binding effect of the DIME physician's opinion was limited to medical impairment. A prehearing ALJ granted the motion to strike on October 20, 2003. The DIME physician later issued an impairment rating of 12 percent of the upper extremity.
The claimant sought a hearing arguing that he is not at MMI and needs additional medical treatment as recommended by the DIME physician. However, the ALJ concluded the claimant waived the issue of MMI by not requesting the DIME physician to address it, and failed to prove any need for ongoing medical treatment after MMI.
On review, the claimant argues, inter alia, that the ALJ's "use of the Grover standard coupled with her statement that the issue of MMI cannot be litigated establishes that the ALJ ignored any consideration of whether the DIME had been overcome." The claimant further requests that we "take judicial notice that the Application for Division IME form adopted subsequent to this DIME does not permit either party to exclude the issue of MMI in requesting a DIME." We conclude the matter must be remanded to determine whether the respondents can overcome the DIME physician's finding that the claimant was not at MMI.
We recently addressed a similar factual situation in Hernandez v. Swift Newspapers, W.C. No. 4-570-620 (December 3, 2004). In Hernandez, we held that the adoption of Rule of Procedure XIV (L)(3)(a)(5), 7 Code Colo. Reg. 1101-3 at 53-54, by the Director of the Division of Workers' Compensaton (Director) negated our rulings exemplified by the Shaffer case. See also, Carroll v. Cunningham Construction, W.C. No. 3-113-816 (May 14, 1996), aff'd., Cunningham Construction v. Carroll, (Colo.App. No. 96CA1008, December 12, 1996) (not selected for publication). Rule XIV (L)(3)(a)(5) states the following:
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 (5) days prior to the appointment date. An opinion from the 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.
The Hernandez decision held that "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." Moreover, we held the rule "negates the Carroll line of cases, all of which involved DIME requests prior to adoption of the rule." Because there was no written agreement to limit the issues in Hernandez, we held the respondents' request for a DIME initiated a "dispute" concerning MMI for purposes of section 8-42-107(8)(b)(II), C.R.S. 2004, even though on the application for the DIME the respondents did not check MMI as an issue. We note the Hernandez decision erroneously states the effective date of the rule was April 30, 2001. The rule actually became effective November 30, 2001.
Although not mentioned in Hernandez, we recognize the Director issued an Interpretive Bulletin on November 29, 2001, concerning "Limited Issue IMEs." This bulletin acknowledges the Shaffer/Carroll line of cases, although it does not clearly endorse their holding. Nevertheless the bulletin states that in fact patterns like that presented here the IME unit "will send to the [DIME] physician, with a copy to the parties, an Incomplete Notice with instructions to complete the rating." The bulletin does not address the effect, if any, of Rule XIV (L)(3)(a)(5) [which would become effective the next day] in these situations, and we have not found any subsequent publication concerning this rule or its intended effect.
We do note that the current Application for Division Independent Medical Examination form (WC77 revised August 2003) (reviewable on Division's website), does not contain any boxes or other opportunity for the requesting party to choose or limit the issues to be addressed by the DIME physician. To the contrary, the form states the " physician shall consider the following issues if relevant: Maximum medical improvement, permanent impairment, and apportionment." (Emphasis in original). This form would appear to be consistent with our interpretation of Rule XIV (L)(3)(a)(5) because it eliminates the opportunity of the requesting party to designate the issues for the DIME, while presumably reserving the right of the parties under the rule to enter a mutual agreement to limit the issues if they so desire.
We disagree with the respondents' assertion that the claimant waived the issue of MMI for consideration by the ALJ and DIME physician. The request that we review the current DIME application because it "does not permit either party to exclude the issue of MMI in requesting the DIME" is sufficient to contest the ALJ's procedural ruling that the claimant waived the MMI issue. Further, in his position statement the claimant argued that the "issue of stability of the claimant's medical condition and the causation of the injury are matters inherent in the DIME process and it is the ALJ who determines as a matter of fact whether the physician's rating, including the underlying causation determinations, has been overcome by clear and convincing evidence." Thus, the claimant has consistently maintained that the DIME found he was not at MMI and the burden was on the respondents to overcome that finding. Although the claimant's brief does not address the issue in precisely the same way it is framed here, the argument is sufficient to raise the issue as a general matter.
Under these circumstances, the matter must be remanded for entry of a new order which determines whether the respondents can overcome by clear and convincing evidence the DIME physician's finding that the claimant is not at MMI. The ALJ shall then resolve the ultimate issue of medical benefits in accordance with the ruling.
IT IS THEREFORE ORDERED that the ALJ's order dated July 30, 2004, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Raphael Gonzalez, Aurora, CO, Layne Christensen, Denver, CO, Cunningham Lindsey, Denver, CO, Robert M. Maes, Esq., Denver, CO, (For Claimant).
Keith E. Mottram, Esq., Denver, CO, (For Respondents).