ALJ’s authority to determine if MMI has been established

In this case, the Industrial Claim Appeals Office (ICAO) decided two issues: first, whether the administrative law judge (ALJ) had jurisdiction to determine whether the authorized treating physician (ATP”) placed the claimant at maximum medical improvement (“MMI”); second, whether the respondents waived its procedural due process right by litigating an un-endorsed issue at hearing.

The claimant sustained   a work-related injury, tearing her meniscus and triggering reactive arthritis. The claimant’s ATP referred claimant to a surgeon after conservative care failed, who then requested authorization for surgery which was denied by respondents, in conjunction with filing an application for hearing.

Thereafter, the ATP placed claimant at MMI but noted he did so because “no further recovery is expected without surgery.” The respondents filed a final admission of liability (“FAL”) consistent with the report which the claimant objected to and requested a Division Independent Medical Examination (“DIME”).

A hearing was held to determine whether the ALJ had jurisdiction to determine if the ATP had made a valid MMI determination and whether the FAL should be stricken.  The ALJ held that she did have jurisdiction to determine whether the ATP placed the claimant at MMI based on the case Town of Ignacio v. Indus. Claim Appeals Office, 70 P.3d 513 (Colo. App. 2002) as the ALJ is merely exercising her power to resolve factual ambiguities. Indeed, the ALJ held that the ATP did not place the claimant at MMI and thus the respondents’ FAL was premature and stricken. Although the only endorsed issue at hearing was the MMI issue, the ALJ also held that the respondents were liable for the claimant’s knee surgery.

Respondents petitioned the ALJ’s order. The Panel analyzed two issues. First, it held that the ALJ correctly relied on Town of Ignacio in holding that the ALJ may determine the ATP’s true opinion without the necessity of a DIME, if the ATP issues ambiguous opinions concerning MMI.

Second, the Panel set aside the ALJ’s order on the issue of medical benefits because it violated the respondents’ procedural due process rights. The Panel held that the ALJ erred in ordering the respondents liable for the claimant’s knee replacement surgery because the issue was not an endorsed issue for hearing. Thus, the respondent’s lacked notice sufficient to waive their right to procedural due process.

Arnhold v. United Parcel Service, W.C. No. 4-979-208-04 (ICAO Nov. 17, 2017).

Would you like to know more? Contact Eric J. Pollart at or 720.488.9586.


From the January 2018 Pollart Miller Newsletter