Workers’ Compensation Procedure

The Colorado Court of Appeals affirmed an order by the Industrial Claim Appeals Office (“Panel”), which held that because a division-sponsored independent medical examination (“DIME”) had not been completed, the ALJ lacked jurisdiction to conduct a hearing in claimant’s case.

After sustaining a work-related injury, the respondents sent claimant to Dr. Hattem to assume the role of “claimant’s designated provider.” At the fourth visit, Dr. Hattem placed claimant at MMI and issued an impairment rating. Respondents filed a filed a final admission of liability (“FAL”) consistent with the opinion.

That same day, the claimant filed for hearing requesting medical benefits to reach MMI, and to strike the FAL.  Respondents argued  that because a DIME had not been conducted, the ALJ did not have jurisdiction to hear the medical benefit issue, as  disputes regarding an MMI determination by the claimant’s ATP must be resolved by a DIME. See C.R.S. § 8-42-107(8)(b)(II).

Although the ALJ recognized the lack of a DIME could deprive him of jurisdiction to hear the case, he proceeded with the hearing because the recommended treatment would be identical regardless of whether claimant was pre- or post-MMI.

The ALJ did not resolve the issue of whether Dr. Hattem was an ATP or an IME.  Instead he offered the statement that  if a physician “walks, talks, and squawks” like an IME, it probably is an IME.

On review, the Panel determined that despite the ALJ’s “duck” reference suggesting Dr. Hattem was an IME, the facts of the case supported a contrary result and in the absence of a specific finding by the ALJ which required deference, Dr. Hattem was an ATP and claimant’s remedy was with the DIME process, not the hearing.  Accordingly, the Panel concluded the ALJ lacked jurisdiction to hear the matter.

The claimant appealed, arguing that Dr. Hattem was instead a IME physician and that his MMI determination is nothing more than an opinion to be weighed. The Court of Appeals determined that Dr. Hattem was claimant’s ATP, and therefore his opinion effectively cut off further curative treatment, triggered employer’s FAL filing, and imposed a hurdle to a hearing that could be overcome only by claimant undergoing a DIME.

The Court looked at the Panel’s evidence when it decided Dr. Hattem was an ATP. First, at the hearing, the ALJ denied claimant’s motion to strike the FAL. If Dr. Hattem was not an ATP, then the FAL would be invalid. The ALJ’s decision not to strike the FAL suggests that he considered Dr. Hattem to be an ATP. Second, the ALJ never expressly said in his order that Dr. Hattem is not an ATP. To the contrary, the ALJ quoted Dr. Wakeshima, an undisputed ATP, as saying that claimant “was placed at maximum medical improvement by Dr. Hattem.” This suggests that the ALJ agreed with Dr. Wakeshima’s categorization of Dr. Hattem as “the primary authorized treating physician.” Third, and most tellingly, when the claimant asked the ALJ opportunity to clarify his finding concerning Dr. Hattem’s status, the ALJ declined to do so. Therefore, the Court affirmed the Panel’s holding that Dr. Hattem was an ATP and thus, a DIME needs to be performed before a hearing can occur.

Portillo v. Indus. Claim Appeals Office, NO. 17CA0895 (Mar. 8, 2018)

Would you like to know more? Contact Eric J. Pollart at or 720.488.9586.


From the March 2018 Pollart Miller Newsletter