Claimant had an accepted injury to his right shoulder in 2015. After appropriate treatment, he was placed at MMI by his orthopedic treater on July 11, 2019. The treater noted that Claimant was stable for an impairment rating, but none was undertaken at that time. That treater is Level II accredited, and therefore was tasked with providing an impairment rating within 20 days, per DOWC Rule 5-5(D)(1)(b).
Respondents obtained an order to compel Claimant to attend a demand appointment in order to obtain an impairment rating for his shoulder. Claimant failed to attend that appointment, and Respondents suspended TTD benefits as of the date of that missed appointment. Respondent set yet another demand appointment that Claimant did attend, and the provider finally did provide an impairment rating at that appointment. Claimant’s TTD benefits were reinstated after he attended this last appointment.
Claimant requested penalties against Respondents for allegedly violating the prohibition against dictating medical care, and for suspending the Claimant’s TTD benefits after Claimant failed to attend a demand appointment.
The ALJ denied the penalty requests, finding no violation of the Act by Respondents. The ALJ concluded that setting demand appointments with Claimant’s ATP for purposes of obtaining an impairment rating was not the dictation of medical care. The ALJ also concluded Respondents did not violate the Act when they suspended TTD benefits after Claimant failed to attend a demand appointment after being ordered to attend by a PALJ.
Finally, the ALJ concluded that Claimant’s entitlement to TTD benefits for the period they were suspended was barred, pursuant to Sect. 8-43-404(3) C.R.S., which states: “If the employee refuses to submit to such examination after direction by the director or any agent, referee, or administrative law judge of the division appointed pursuant to section 8-43-208 (1) or in any way obstructs the same, all right to weekly indemnity which accrues and becomes payable during the period of such refusal or obstruction shall be barred.”
PRACTICE TIP: Respondents generally would have to pay TTD for the period it was suspended due to Claimant not attending a demand appointment. However, by obtaining an order compelling attendance, TTD can be barred if Claimant does not attend the appointment in violation of the order.
MARTIN FITZSIMMONS vs. LINCOLN SURGERY CENTER and ACE AMERICAN INSURANCE, Workers’ Compensation No. 4-995-913