Special weight given to DIME’s “Findings and Determinations” does not include whether a scheduled injury should be converted to whole person impairment

In Morris, Claimant sustained a work-related injury when he slipped and fell on scaffolding in 2015. Almost a year later, Claimant reached maximum medical improvement (“MMI”) for that injury. The authorized treating provider found no permanent impairment. Claimant disagreed with this finding and requested evaluation by a Division Independent Medical Examiner (”DIME”). The DIME agreed that MMI had been reached, but found a 14% scheduled impairment to Claimant’s left leg. The DIME noted that the 14% scheduled impairment converted to 6% whole person impairment. In May 2017, Respondents filed a Final Admission based upon the DIME report and admitted to the 14% scheduled impairment.


Claimant objected and requested that permanent partial disability benefits be automatically calculated based on the whole person rating due to the DIME converting the rating. In March 2018, the ALJ determined that the preclusive effect of a DIME’s opinion is limited to determinations regarding either MMI or whole person medical impairment, not to conversion of a rating. For that reason, the ALJ rejected Claimant’s request and the Industrial Claim Appeals Office (“the Panel”) affirmed the ALJ’s decision.


Claimant then filed a new hearing application on the issues of disfigurement and permanent partial disability benefits. Claimant again argued for the whole person rating from the DIME based on the argument that Respondents were bound by the DIME’s whole person impairment rating because Respondents had not objected to the suggested conversion. The ALJ ruled that because conversion of a scheduled impairment – the 14% impairment of the left leg – is not one of the two areas in which a DIME opinion carries presumptive weight, the employer did not have to apply for a hearing to challenge that suggested conversion. Rather, Claimant had the burden of proof to show by a preponderance of the evidence that he suffered permanent functional impairment that was not limited to the scheduled body part. The DIME’s opinion could be one piece of evidence, but was not enough by itself to prove conversion or the situs of impairment. At hearing, Claimant failed to prove conversion to whole person was applicable and was denied additional permanent partial disability benefits for the whole person rating and disfigurement benefits. The Panel upheld this decision, finding it to be supported both by law and by substantial evidence in the record. Claimant appealed to the Colorado Court of Appeals (“the Court”).


Respondents argued that the ALJ’s order in March 2018 precluded Claimant from requesting that his impairment rating be converted per DIME’s recommendation. The Court disagreed and explained that issues may be precluded so long as:

  1. The issue sought to be precluded is identical to an issue actually determined in the prior proceeding;
  2. The party against whom estoppel is asserted has been a party to or is in privity with a party to the prior proceeding;
  3. There is a final judgment on the merits in the prior proceeding; and
  4. The party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding


The party seeking to preclude an issue bears the burden of establishing these above elements. The Court found similarities between the issues, seeing that both rely on the ALJ’s interpretation of the scope of DIME’s “findings or determinations.” However, the Court held that the issues are not identical because each issue raised necessitated separate discussion and analysis.


Next, the Court agreed with both the ALJ and the Panel that the DIME’s suggested conversion to a whole person impairment rating did not fall under the “findings or determinations” which have presumptive effect. In considering the Workers’ Compensation Act of Colorado (“Act”), the Court found that the legislature did not intend for a DIME physician’s findings or determinations to be unlimited in scope. The Court reiterated that there are only two “determinations” which are given presumptive weight: 1) whether Claimant has reached MMI and 2) whether Claimant has sustained permanent whole person medical impairment due to the injury. If the DIME finds that Claimant has sustained a scheduled impairment, then the rating of that impairment is not granted presumptive weight. Additionally, the Act does not give presumptive effect to a DIME’s recommendation to covert a scheduled impairment to a whole person impairment. The conversion of a scheduled injury to a whole person rating falls under the ALJ’s discretionary authority. For those reasons, the Court affirmed the ALJ and Panel’s decisions.

Morris v. Indus. Claim Appeals Office, 19CA1039 (Colo. Ct. App. Aug. 27, 2020) 

Want to know more? Contact Brianna Tancher at btancher@pollartmiller.com or 877-259-5693.

October 2020 Newsletter