In Dean, the claimant was placed at MMI and received a 40% whole person impairment rating by his ATP, Dr. Anderson-Oeser. The respondents requested a Division IME and Dr. Mathwich was selected as the physician. Dr. Mathwich emailed the parties letting them know that while he had never examined the claimant, Dr. Anderson-Oeser had examined the claimant while she was at Dr. Mathwich’s practice. All parties agreed that they were comfortable proceeding with Dr. Mathwich as the Division IME physician.
Prior to the Division IME, the claimant had a regularly scheduled maintenance appointment with Dr. Anderson-Oeser. The claimant mentioned that he had an upcoming Division IME with Dr. Mathwich and Dr. Anderson-Oeser revealed that she had left Dr. Mathwich’s practice, which resulted in a majority of her patients following her to her new practice, causing Dr. Mathwich a substantial financial loss, which led him to close his practice. The claimant’s counsel subsequently alerted the parties that the claimant would not be attending the Division IME appointment with Dr. Mathwich, based on the information received from Dr. Anderson-Oeser and the potential conflict of interest. The claimant did not attend the Division IME appointment and the respondents had to pay the $1,400 rescheduling fee. The respondents rescheduled the Division IME and scheduled a pre-hearing conference to compel the claimant to attend the Division IME and to pay the $1,400 rescheduling fee.
The pre-hearing ALJ (PALJ) found there was no good cause to strike Dr. Mathwich as the Division IME physician because the claimant had the opportunity to request financial disclosures from the Division IME physicians and failed to do so under Rule 11-4(4). The PALJ also compelled the claimant to attend the Division IME and ordered him to reimburse Respondents for the $1,400 rescheduling fee. The claimant filed an Application for Hearing for review of the PALJ Order and did not attend the rescheduled Division IME.
At the hearing, Dr. Anderson-Oeser testified that she had told the claimant that she knew Dr. Mathwich personally and that she was concerned about Dr. Mathwich’s ability to be impartial. The ALJ determined that the PALJ had the authority to compel the claimant to attend the rescheduled Division IME and to reimburse respondents for the rescheduling fee. Further, the ALJ denied the claimant’s request to dismiss Dr. Mathwich as the Division IME physician for potential conflict of interest as neither party had requested summary disclosures under Rule 11-4(4).
The claimant appealed to the Industrial Claim Appeals Office (the Panel) and argued that the PALJ did not have the authority to compel the claimant to attend the Division IME or to reimburse respondents. The claimant also argued that the ALJ erred by failing to find that Dr. Mathwich had a conflict of interest based on Dr. Anderson-Oeser’s testimony. The Panel examined the amendments to C.R.S. § 8-43-207.5 and found that the amendments to the statute relaxed the limitations to PALJ authority and allowed PALJ’s to issue interlocutory orders on procedural matters and to resolve pre-hearing evidentiary and discovery disputes. The Panel stated that Division IME disputes are evidentiary and discovery in nature. The Panel affirmed the ALJ’s opinion that the PALJ had the authority to compel the claimant to attend the rescheduled Division IME and to pay the $1,400 rescheduling fee. With respect to the claimant’s argument regarding the conflict of interest, the Panel noted that generally speaking, Division IME requests are evidentiary rulings and therefore, not final and appealable and did not rule on that issue.
Dean v. NGL Energy Partners, W.C. No. 5-095-928 (I.C.A.O. Sept. 2, 2022)
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