Overcoming Division IME

In Brooks, the Industrial Claim Appeals Office (“Panel”) affirmed the ALJ’s decision to affirm the DIME physician’s determination that Claimant was at MMI and assigned an impairment rating.

Here, the Claimant worked for the Respondent as a substitute schoolteacher and suffered a work-related injury when she slipped and fell in the school parking lot. She alleged injuries to her right knee, left leg, shoulders and back.

The Claimant presented to Dr. Lugliani, the authorized treating physician (ATP) and began receiving conservative treatment including physical therapy and chiropractic manipulation. By May of 2016, the Claimant was noted by her physical therapist to have attained full range of motion of her shoulders. Claimant “requested” that Dr. Lugliani rate her for her back, shoulders and right knee, who declined and found only the right knee to be appropriate to assign work-related impairment.

The Claimant received surgery on her shoulders outside of the workers’ compensation system to repair rotator cuff tears which she maintained were due to the injury.  The surgeon performing the procedures opined that the injuries “certainly could be as a direct result of the fall.”

Thereafter, the Claimant requested a Division IME review of Dr. Lugliani’s MMI determination, which was performed by Dr. Fall. Dr. Fall agreed with Dr. Lugliani’s date of MMI and concurred that the shoulder issues were non-occupational.   She noted the prior full range of motion measurements regarding the shoulders and sporadic reports of pain.

The Claimant challenged the Division IME at hearing.  The ALJ concluded that the Claimant had failed to overcome Dr. Fall’s opinion regarding MMI by clear and convincing evidence, specifically noting that Claimant’s personal physician offered no more than an opinion stating the conditions “could” be related.

The ICAO affirmed, noting that it was the ALJ’s prerogative to resolve the conflicts in the evidence, and the ALJ’s findings would not be disturbed on appeal as long as supported by substantial evidence.

Brooks v. Aurora Public School Dist., W.C. No. 5-013-170-02 (ICAO Feb. 2, 2018).

Would you like to know more? Contact Eric J. Pollart at epollart@pollartmiller.com or 303.414.0782.


From the February 2018 Pollart Miller Newsletter