2019 COA 37
Colo. Ct. App.2019Background
- Susan Burren sustained admitted work-related right arm/shoulder injuries in Sept. 2014 and treated with multiple physicians through 2017; no treating physician (ATP) ever found her to be at MMI.
- Employer retained Dr. Allison Fall (retained examiner) in 2015 and again in Aug. 2016; Dr. Fall later opined Burren had reached MMI with no permanent impairment.
- Employer requested a 24-month DIME under § 8-42-107(8)(b)(II); Dr. Clarence Henke (DIME) examined Burren and concluded she was not at MMI.
- Employer sought a hearing to overcome the DIME; the ALJ found employer clearly and convincingly overcame the DIME based largely on Dr. Fall’s testimony and placed Burren at MMI as of June 28, 2016.
- The Industrial Claim Appeals Office (Panel) affirmed the ALJ, but the Court of Appeals concluded both the ALJ and Panel misapplied § 8-42-107(8)(b) and remanded for an order consistent with the opinion.
Issues
| Issue | Plaintiff's Argument (Burren) | Defendant's Argument (Employer) | Held | |
|---|---|---|---|---|
| Whether an ALJ may place a claimant at MMI when neither an ATP nor the DIME physician has found MMI | ALJ cannot find MMI; statute requires an ATP to make the MMI determination under subparagraph (I) and claimant should continue treatment until ATP finds MMI | Once the DIME is overcome, ALJ may determine MMI as a factual matter based on record evidence (including retained examiner opinion) | Held: ALJ may not set MMI absent an ATP or DIME finding of MMI; where both ATP and DIME find no MMI, claimant must be returned for continued treatment or follow-up DIME before MMI is fixed | |
| Proper interpretation of § 8-42-107(8)(b) when DIME finds no MMI | Statute requires continued treatment until ATP places claimant at MMI | ALJ may resolve MMI as fact once DIME opinion is overcome | Held: Subparagraphs (I) and (II) are alternative paths; but where both ATP and DIME agree no MMI, treatment continues until either ATP or DIME later finds MMI; ALJ cannot unilaterally set MMI then | |
| Whether employer may re-invoke 24-month DIME if DIME and ATP agree no MMI | N/A | Employer argued the ALJ’s approach is permissible; practical need to challenge ongoing treatment | Held: Employers may re-invoke the 24-month DIME later, but cannot short-circuit continued care when both ATP and DIME say no MMI | |
| Whether the ALJ’s factual findings require review on substantial evidence | Burren argued misapplication of statute; also challenged sufficiency | Employer relied on ALJ credibility findings favoring retained examiner | Court did not reach substantial-evidence review after resolving statutory error | Held: Court declined to address substantial evidence because statutory interpretation required remand |
Key Cases Cited
- Davison v. Industrial Claim Appeals Office, 84 P.3d 1023 (Colo. 2004) (statutory interpretation follows plain meaning; give effect to every word)
- Lombard v. Colorado Outdoor Educ. Ctr., Inc., 187 P.3d 565 (Colo. 2008) (do not render statutory language superfluous)
- Williams v. Kunau, 147 P.3d 33 (Colo. 2006) (after a DIME finds no MMI, DIME process remains open and follow-up DIME is required before employer may close the case)
- Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo. App. 1996) (resolving conflicts in treating physicians’ MMI opinions is a factual question for the ALJ)