2020 CO 41
Colo.2020Background
- Susan Burren suffered work-related neck, arm, and shoulder injuries in September 2014 and received ongoing treatment; no authorized treating physician (ATP) initially placed her at MMI.
- Destination Maternity (employer) obtained a third‑party exam (Dr. Fall) and later requested a 24‑month Division Independent Medical Examination (DIME); the DIME doctor (Dr. Henke) found Burren was not at MMI.
- Employer challenged the DIME MMI finding under § 8-42-107(8)(b)(III); at hearing the ALJ found the employer had overcome the DIME opinion by clear and convincing evidence and placed Burren at MMI (June 28, 2016) with no permanent impairment.
- The Industrial Claim Appeals Office affirmed the ALJ; a division of the court of appeals reversed, holding an ALJ cannot place a claimant at MMI when neither an ATP nor the DIME doctor has done so and treatment should resume with ATPs.
- The Colorado Supreme Court granted certiorari and reversed the court of appeals: once an employer overcomes a DIME doctor’s MMI opinion by clear and convincing evidence, the ALJ may decide MMI status and permanent impairment as factual questions.
Issues
| Issue | Burren (Plaintiff) | Destination Maternity (Defendant) | Held |
|---|---|---|---|
| May an ALJ place a claimant at MMI after an employer overcomes a DIME doctor’s MMI opinion? | ALJ lacks authority; only ATPs or the DIME doctor can place MMI; ALJ cannot substitute her judgment. | Once employer overcomes DIME by clear and convincing evidence, the ALJ may resolve MMI as a question of fact. | ALJ may determine MMI as a factual matter after employer overcomes the DIME doctor’s opinion. |
| May an ALJ determine permanent impairment when no ATP or DIME rating exists? | Only an ATP or DIME doctor may assign the impairment rating; allowing ALJ to do so deprives claimant of statutory protections. | Level‑II‑accredited physicians (not only ATP/DIME) may rate; DWC procedures allow provisional ratings; ALJ may resolve impairment factually. | ALJ may resolve permanent impairment as a factual issue; parties may obtain provisional ratings and ALJ weighs evidence. |
| Who resolves whether the employer overcame the DIME finding and by what standard? | Argues ALJ cannot override ATP/DIME consensus that claimant is not at MMI. | ALJ is the factfinder; employer must prove by clear and convincing evidence that the DIME finding was incorrect. | ALJ is the sole arbiter of conflicting medical evidence and decides whether clear and convincing evidence overcomes the DIME finding. |
| Does allowing ALJ authority conflict with the legislature’s intent for the 24‑month DIME process? | (Dissent) Permits a ‘‘third bite’’ for employers and upsets statutory balance; employers can re‑invoke DIME instead. | The 24‑month DIME contemplated hearings to resolve disputes; barring ALJ resolution would render the remedy ineffective. | Court interprets the statute to permit ALJ resolution to effectuate the legislative purpose of providing a meaningful 24‑month DIME remedy. |
Key Cases Cited
- Harman‑Bergstedt, Inc. v. Loofbourrow, 320 P.3d 327 (Colo. 2014) (describing interplay of medical treatment and disability benefits under the Act)
- Williams v. Kunau, 147 P.3d 33 (Colo. 2006) (ATP’s role in determining MMI and deference to treating physicians)
- Magnetic Eng’g, Inc. v. Indus. Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000) (DIME opinions have presumptive effect)
- Metro Moving & Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995) (definition of clear and convincing evidence standard)
- Davison v. Indus. Claim Appeals Office, 84 P.3d 1023 (Colo. 2004) (ALJ authority and deference to agency interpretations)
- Pinnacol Assurance v. Hoff, 375 P.3d 1214 (Colo. 2016) (deference to ICAO interpretations where reasonable)