Overcoming The Division Independent Medical Examination

Secret agent Claimant? Claimant’s surreptitious recording relied upon by ALJ to overturn Division Independent Medical Examination (DIME) opinion.

Claimant sustained a compensable injury to her left knee and was eventually placed at maximum medical improvement (MMI) and rated. Respondents filed a final admission of liability consistent with the impairment rating opinion and claimant proceeded with a DIME.

The DIME determined there was was no ratable condition, and assigned the claimant a 0% impairment rating. The claimant, proceeding as pro se, subsequently filed an application for hearing to overcome the DIME’s opinions.

At hearing, the claimant presented an audio recording that she had secretly made during the DIME evaluation. ALJ Felter commented that the tape showed the DIME “gravitating” towards a no impairment designation from the very beginning of the exam, and tended to show the DIME’s bias against the claimant. Based in part on this evidence, the ALJ concluded that the claimant had overcome the DIME’s rating by clear and convincing evidence. The respondents appealed.

On appeal, respondents argued that ALJ Felter erred when he admitted the surreptitious recording into evidence and therefore erred in holding that the DIME rating had been overcome. The Panel disagreed, first explaining that surreptitious recording is allowed in Colorado since Colorado is a “one party consent state” and citing the ALJ’s “broad discretion to conduct evidentiary proceedings.” The Panel noted that the recording was properly admitted over respondents’ hearsay objection and that respondents’ counsel failed to object to the admission of the recording as a matter of law contemporaneously at hearing. The Panel also found that admission was a “harmless error” because the ALJ cited other evidence to support his determination that the DIME was incorrect.

King v. The Children’s Hospital, W.C. No. 5-004-801-02 (ICAO Sept. 11, 2018)

Would you like to know more? Contact Jacqui Condon at jcondon@pollartmiller.com or 877-259-5693.

From the November 2018 Pollart Miller Newsletter