There’s No Crying in Baseball . . . or in Division IME’s

In a claim successfully handled by Pollart Miller’s R. Jake Johnson, the Court of Appeals affirmed the ICAO’s decision upholding the ALJ’s denial of permanent partial disability (PPD) and penalties.

Claimant was employed as a janitor and injured her back. The third party administrator (TPA) filed a “medical only” General Admission of Liability (GAL) accepting the claim on April 30, 2015.

Claimant received a 5% rating per the authorized treating physician (ATP) which was challenged by the Respondents.  The Division IME, Dr. Chen, issued a 0% impairment.  The Division IME specifically noted that she was unable to complete the spinal examination because the Claimant would not allow the examination, “crying and asking for a break after 5 seconds of motor exam” and “crying from pain after muscle testing” making it “impossible to perform” the examination.

Unlike situations where a failure to comply with the AMA Guides may provide the basis to overcome the Division IME’s opinion, the Court affirmed the Panel’s holding that here Dr. Chen tried to complete the evaluation, but Claimant’s behavior prevented her from doing so.  As such, there was no basis to disturb Dr. Chen’s opinions.

Additionally, the Claimant’s allegation that the medical only GAL violated W.C.R.P 5-5 because it did not state the basis for the denial of temporary disability was time barred.  The Court affirmed that any request for penalties must be brought within 1 year from the date the Claimant knew or reasonably should have known of the facts giving rise to the penalty. Claimant conceded she received the GAL seventeen months prior to filing her application alleging penalties.  The Claimant asserted  that her 1 year deadline did not begin until she had counsel. The Court rejected this assertion, noting that a pro se litigant is presumed to have knowledge of the applicable statutes, and that regardless, Claimant retained counsel a full seven months before the 1 year deadline expired, so that her failure to timely file her penalty claim cannot be excused.

Claims Representation Pointer: 

Any time a medical-only admission is filed, it should state the basis for the denial of temporary or permanent benefits within the remarks section of the admission.

Mulgeta v. ICAO, 17CA0568 (Colo. App. 2018).

Would you like to know more? Contact R. Jake Johnson or 720.488.9586


From the February 2018 Pollart Miller Newsletter