Overcoming the DIME findings on impairment does not require an ALJ to revert to the ATP’s impairment rating.

In Niedzielski, the Panel was tasked with determining what impairment rating an ALJ may impose after a party has overcome the Division Independent Medical Examination findings by clear and convincing evidence.

The Panel held that when calculating the appropriate impairing rating, the ALJ need not agree with any particular medical opinion, and may adopt portions of one and parts of another. The ALJ should consider all relevant evidence in assessing the appropriate impairment rating.

In September 2016, the claimant sustained a compensable injury when he hurt his back while he was stocking a shelf and hit his back on the front bar of a loaded industrial cart. Claimant’s authorized treating provider placed claimant at maximum medical improvement in June 2018 and assigned a 0% impairment rating as claimant only exhibited subjective pain complaints. In a Division Independent Medical Examination (“DIME”) performed by Dr. Pham, he assigned a 12% whole person rating based on the “chronic low back pain” diagnosis. After respondents filed an application to overcome the DIME, opinions from other physicians were obtained. Dr. Sacha recommended a 7% impairment rating and Dr. Hughes supported Dr. Pham’s 12% impairment rating. The ALJ determined that because Dr. Pham’s rating did not have objective findings to support claimant’s subjective complaints as required under Colorado law, the impairment rating could not be upheld. The ALJ then defaulted to the authorized treating provider’s impairment rating without considering the impairment ratings of Dr. Hughes or Dr. Sacha.

The Panel reaffirmed the law that once the DIME is overcome by clear and convincing evidence, the ALJ must arrive at a determination of the impairment rating. The ALJ is not bound to revert to the authorized treating physician’s rating. The only limitation is that the ALJ’s findings must be supported by the record and consistent with the AMA Guides and other rating protocols. The Panel held the ALJ should have considered the other physicians’ ratings when calculating claimant’s impairment rating. The ALJ’s order was set aside and remanded to make additional findings and determine the appropriate permanent impairment rating upon consideration of all the relevant facts and opinions before him.

Niedzielski v. Target Corporation, W.C. No. 5-036-773-001 (ICAO March 9, 2020)

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

From the April 2020 Newsletter