MMI: Rethinking Filing Applications to Challenge Opinion of Division IME

Administrative Law Judge (ALJ) cannot designate maximum medical improvement (MMI) date if authorized treating physician (ATP) and 24 month Division Independent Medical Examination (DIME) have not done so.

Under C.R.S. § 8-42-107, an ATP shall make a determination as to when a claimant reaches MMI. If disputed by either party, then a DIME may be pursued.

But what happens when neither the ATP nor a 24 month DIME physician has first placed the claimant at MMI? Can the claimant be placed at MMI by an ALJ?

In Burren, the claimant had an admitted injury for which she was not placed at MMI within 2 years. Respondents obtained an IME who opined claimant was at MMI, and then initiated the 24 month DIME process. The DIME physician determined that claimant was not at MMI. Respondents filed an application for hearing (AFH) to overcome the DIME determination, and the ALJ agreed with respondents’ position, finding that the testimony from their expert satisfied the clear and convincing standard to overcome the DIME. Consequently, the ALJ determined that the claimant was at MMI, utilizing the date provided by the respondents’ IME had obtained to initiate the 24 month DIME.

On review, the Industrial Claims Appeals Office (Panel) agreed with the ALJ, concluding the evidence on the record supported the decision. The Panel disagreed with claimant’s contention that an ALJ could not find her to be at MMI unless an ATP or the DIME had placed her there first. In support of this finding, the Panel reasoned that once the ALJ determined that the evidence had clearly and convincingly overcome the DIME physician’s MMI finding, the ALJ was required to determine Claimant’s MMI date as a matter of fact.

The Court of Appeals reversed, holding that if neither the Division IME nor any of Claimant’s treating physicians had placed her at MMI, then the claimant must return for treatment with the ATP.

Interestingly, the Court noted an employer could always “re-invok[e]” the 24-month DIME process at an “appropriate time in the future” thereby providing the employer with the continued ability to challenge treatment that seems interminable. The Court did not provide any guidance as to what an “appropriate time in the future” may mean.

Susan Burren v. ICAO, Destination Maternity, and Liberty Mutual Insurance Company, W.C. 4-962-740, No. 18CA0565 (Colo. Ct. App. March 7, 2019).

Claims Administration Tip: This decision will likely be appealed, but presently, it means that if a 24 month DIME determines the claimant is not at MMI, options other than filing and application to overcome the conclusion need to be examined. This includes potentially filing for a second 24 month Division after the claimant has been returned to the ATP for treatment. The decision seems to open the door for this avenue under the broad language:  “appropriate time in the future”. Consult with your counsel to map out a clear strategy prior to initiating the 24 month DIME process and be prepared to deal with the contingency of a “not at MMI determination”.

Would you like to know more? Contact Eric Pollart at epollart@pollartmiller.com or 877-259-5693.

 

From the March 2019 Newsletter 

2019-04-01T11:06:51+00:00