2013 COA 71
Colo. Ct. App.2013Background
- Claimant Ricardo Meza seeks review of a final order affirming an ALJ’s award of permanent partial disability based on a 10% lower-extremity impairment after a DIME.
- An eighteen-month DIME (under §8-42-107(8)(b)(II)) placed Meza at MMI and assigned impairment ratings totaling 20% of the whole person, which the FAL was based on.
- Claimant moved to strike the FAL arguing the eighteen-month DIME could not impair ratings and that impairment should be rated by the ATP.
- The ALJ struck the FAL and ordered impairment evaluation by the ATP, followed by possible additional proceedings (DIME) under §8-42-107(8)(c).
- A second DIME later affirmed MMI but issued a new impairment rating; the ALJ ultimately awarded PPD based on the ATP’s 10% lower-extremity impairment, with other conditions denied for impairment.
- Panel affirmed, holding the eighteen-month DIME’s impairment rating carried no presumptive weight and was not binding on impairment; the second DIME’s impairment rating was accorded presumptive weight and sustained the ALJ’s decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ALJ was barred from addressing causation of impairment. | Meza argues the eighteen-month DIME bound the ALJ. | Swift Foods contends the eighteen-month DIME only bound MMI, not impairment. | No jurisdictional bar; eighteen-month DIME impairment ratings carry no presumptive weight. |
| Whether eighteen-month DIME has presumptive weight only for MMI, not impairment. | Meza contends impairment ratings from eighteen-month DIME are binding. | Employer contends the eighteen-month DIME limited to MMI. | Eighteen-month DIME carries presumptive weight only for MMI, not impairment. |
| Whether the ALJ properly assigned burden of proof to overcome second DIME. | Meza argues the burden was misallocated. | Employer argues the ALJ correctly required Meza to overcome the second DIME by clear and convincing evidence. | ALJ properly assigned burden to overcome the second DIME’s impairment and causation opinions. |
| Whether maintenance medical benefits should be awarded. | Meza seeks maintenance care if reversal occurs. | No basis for maintenance benefits after affirming causation determinations. | Maintenance benefits denied; not addressed further. |
Key Cases Cited
- Leprino Foods Co. v. Indus. Claim Appeals Office, 134 P.3d 475 (Colo.App.2005) (DIME opinions on threshold impairment carry no presumptive weight)
- Peregoy v. Indus. Claim Appeals Office, 87 P.3d 261 (Colo.) (statutory timing for hearings after DIME; general rules apply)
- Delaney v. Indus. Claim Appeals Office, 80 P.3d 691 (Colo.App.2000) (deferral of resolution of impairment until DIME report filed)
- Mosley v. Indus. Claim Appeals Office, 78 P.3d 1150 (Colo.App.2003) (whether DIME impairment rating can be overcome by clear and convincing evidence)
- Blue Mesa Forest v. Lopes, 928 P.2d 831 (Colo.App.1996) (conflicts between written DIME report and testimony resolved by ALJ)
- Kraus v. Arteraft Sign Co., 710 P.2d 480 (Colo.1985) (court does not read nonexistent statutory provisions)