Conversion of hip rating denied despite severely altered gait and DIME’s finding of MMI affirmed despite potential ambiguity in report

Ilene Feldmeier recently successfully defended a claim to overcome a Division IME regarding MMI and determine permanent impairment, including conversion of a scheduled hip rating. The claimant in this case is only 27 years old and sustained a severe displaced right hip fracture due to a slip and fall on ice while removing snow. The claimant was hospitalized for a week and underwent multiple surgeries to repair the hip. The claimant continues to have a severely altered gait, cannot work full duty, and has constant pain. First, the claimant alleged the DIME’s opinion was ambiguous regarding MMI because the DIME physician stated he was at MMI but also recommended hardware removal stating the claimant would not be at MMI if that were completed. Respondents effectively argued that this essentially supported a future claim to reopen but did not mean the claimant was not currently at MMI. The Administrative Law Judge (ALJ) agreed and found the DIME concluded the claimant was at MMI. Respondents also successfully argued that the claimant failed to meet his burden to overcome the DIME. The ALJ found that the claimant’s IME was merely a difference of opinion in part because Respondents argued the treatment to reach MMI recommended by the claimant’s IME was virtually identical to the treatment the DIME recommended as maintenance. The claimant also sought impairment ratings for his knee and psychological condition. Relying on the AMA Guides, Respondents successfully argued that there was no impairable entity or specific diagnosis related to these conditions. Lastly, the claimant sought to convert his hip rating to a whole person rating due to pain in parts of the body beyond the hip and his severely altered gait. Respondents effectively argued that the claimant was able to return to his pre-injury functional status earning full wages and doing 95% of his previous job duties with the exception of snow removal. The ALJ concurred and found the claimant failed to prove the hip injury should be converted.

Brian Linden vs. Aramark/Red Rocks Amphitheater and Indemnity Insurance Company of North America, W.C. No. 5-045-590 (February 27, 2020)

Would you like to know more?  Contact Ilene H. Feldmeier at or 877-259-5693.

From the April 2020 Newsletter