DIME Procedure: Kazazian Revisited

Claimant experienced an incident at work, missed no time and eventually was placed at MMI by the authorized treating physician and issued no impairment.  Respondents eventually filed an FAL.   Consequently, the claimant requested a DIME.  The DIME agreed with the date of MMI, and awarded a 10% impairment.

Claimant challenged the DIME’s findings.  At hearing, the ALJ ultimately held that the DIME’s MMI finding was mistaken. Respondents appealed.

In the course of affirming the ALJ’s order the Panel announced a clarification  of its prior opinion in Kazazian v. Vail Resorts, W.C. No. 4-915-969-03 (April 24, 2017):

“In Kazazian v. Vail Resorts  . . . we held the FAL to be ineffective to close the claim or to close the period  within which  the claimant may request a DIME review. However to the extent we also noted in that opinion the claimant would be unable to initiate the DIME process, we now modify that language as stated in the text above to interpret the statute to allow the claimant to request a DIME.”

Judge DeFalco-Galvin wrote a concurring opinion in which she noted that the Loofborrow case (upon which the holding in Kazazian was based) and its statement that “MMI has no applicability for injuries insufficiently serious to entail disability indemnity in the first place,” was limited solely to the specific facts of Loofborrow in which no workers’ claim for compensation had been filed and the analysis focused on a statute of limitations issue.  In claims like the case at hand in which there is a workers’ claim for compensation filed, a general or final admission issued, permanent disability benefits “payable” (because the DIME determined there was permanent disability, Judge DeFalco-Galvin opined that the principles of Loofborrow should not be read to invalidate an otherwise final admission of liability that follows both the statute and the workers’ compensation rules of procedure.

Ramirez-Chavez v. In-Out Oil Field Services, W. C. No. 5-019-466-01 (ICAO Apr. 12, 2018).

Claims Administration Tip:

The ICAO has now rolled back its prior position prohibiting a claimant from requesting a DIME in a medical-only claim.  At this point, it likely no longer is advisable to move to strike claimants’ applications for a DIME in these circumstances but rather to allow the process to proceed.

Would you like to know more? Contact Eric Pollart at epollart@pollartmiller.com or 720-488-9586.

 

From the May 2018 Pollart Miller Newsletter

2019-01-29T08:55:59-07:00