Destination Maternity and Liberty Mutual Insurance Company, v. Susan Burren.
No. 19SC298
The Supreme Court of the State of Colorado
May 18, 2020
2020 CO 41
Opinions of the Colorado Supreme Court are available to the public and can be accessed through the Judicial Branch‘s homepage at http://www.courts.state.co.us. Opinions are also posted on the Colorado Bar Association‘s homepage at http://www.cobar.org.
ADVANCE SHEET HEADNOTE
May 18, 2020
2020 CO 41
No. 19SC298, Destination Maternity v. Burren—Workers’ Compensation—Maximum Medical Improvement.
In this workers’ compensation case, the supreme court considers whether an Administrative Law Judge may place a claimant at maximum medical improvement (“MMI“) after concluding that an employer or an employer‘s insurer has overcome the finding of a Division Independent Medical Examination doctor that a claimant hasn‘t reached MMI.
The supreme court holds that once an Administrative Law Judge concludes that an employer or an employer‘s insurer has overcome a Division Independent Medical Examination doctor‘s MMI opinion, the Administrative Law Judge may determine the claimant‘s MMI status and permanent impairment rating as questions of fact.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2020 CO 41
Supreme Court Case No. 19SC298
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 18CA565
Petitioners:
Destination Maternity and Liberty Mutual Insurance Company,
v.
Respondent:
Susan Burren.
Judgment Reversed
en banc
May 18, 2020
Attorneys for Petitioners:
Ruegsegger Simons & Stern, LLC
Michele Stark Carey
Denver, Colorado
Attorneys for Respondent:
Irwin Fraley, PLLC
Roger Fraley, Jr.
Centennial, Colorado
Attorneys for Amicus Curiae Colorado Self Insurers Association:
Hall & Evans, L.L.C.
Douglas J. Kotarek
Matthew J. Hegarty
JUSTICE HOOD delivered the Opinion of the Court.
JUSTICE MARQUEZ dissents.
¶1 “Maximum medical improvement” (“MMI“) is often a pivotal point in a workers’ compensation case. It marks when an injured employee stops receiving certain temporary statutory benefits and potentially starts receiving permanent disability benefits, the costs of which are borne by employers and their insurers. Because of the economic implications for all concerned, MMI can become a legal battleground. This case has been fought on that battleground for years now.
¶2 Susan Burren was injured at work, and she received temporary workers’ compensation benefits after her employer admitted liability. Many months passed, with many efforts to treat her injuries, but none of her authorized treating physicians (“ATPs“) placed her at MMI. Her employer and her
¶3 A division of the court of appeals concluded that the ALJ had no authority to place Burren at MMI. Instead, Burren should have been allowed to resume treatment with her ATPs until either an ATP or a DIME doctor placed her at MMI. The employer and its insurer asked for our review.
¶4 We reverse. We hold that once an ALJ concludes that an employer or an employer‘s insurer has overcome a DIME doctor‘s MMI opinion under
I. Facts and Procedural History
A. MMI, Permanent Impairment, and the DIME Process
¶5 The Act provides both medical treatment and disability compensation for employees injured in the workplace. Harman-Bergstedt, Inc. v. Loofbourrow, 2014 CO 5, ¶ 10, 320 P.3d 327, 329. In the parlance of workers’ compensation law, these employees are generally referred to as claimants. If an employer or the employer‘s insurer (for ease of reference, we‘ll just refer to them collectively as “employer“) admits liability, it typically offers a claimant a list of ATPs, who are available to provide medical care to the claimant. Williams v. Kunau, 147 P.3d 33, 36 (Colo. 2006). A claimant might also receive temporary lost-wage benefits. Harman-Bergstedt, ¶ 13, 320 P.3d at 330.
¶6 A claimant receives such care and benefits until she reaches MMI,
¶7 Generally, an ATP determines whether a claimant has reached MMI.
¶8 But the Act also allows an employer to dispute the ATP‘s conclusion. The employer may do so by requesting that the claimant undergo a DIME, but only when:
- at least twenty-four months have passed since the date of injury;
- a party has requested in writing that an ATP determine whether the claimant has reached MMI;
- the ATP has not determined that the claimant has reached MMI; and
- a physician other than the ATP has determined that the claimant has reached MMI.
¶10 A twenty-four-month DIME doctor‘s MMI determination typically controls. See City of Manassa v. Ruff, 235 P.3d 1051, 1059 (Colo. 2010) (Martinez, J., dissenting) (“The findings of a[] [D]IME physician are all but dispositive.“); Magnetic Eng‘g, Inc. v. Indus. Claim Appeals Office, 5 P.3d 385, 387 (Colo. App. 2000) (noting that a DIME doctor‘s opinion “has presumptive effect“). However,
probable and free from serious or substantial doubt.” Metro Moving & Storage Co. v. Gussert, 914 P.2d 411, 414 (Colo. App. 1995). Thus, to carry that burden, an employer must produce evidence showing that it‘s “highly probable” the DIME doctor‘s MMI determination was incorrect. Id.
¶11 ALJs “have original jurisdiction to hear and decide all matters arising under [the Act].”
B. Burren‘s Claim
¶12 Burren suffered work-related injuries in September 2014 at her job as the manager of a retail clothing store owned by Destination Maternity, her employer. Burren testified that she injured herself after installing a steel and Plexiglas shelf above her head and moving a fourteen-foot ladder across an uneven floor. She first reported pain in her right arm and shoulder but later complained of additional pain in her neck. She received treatment for those injuries from multiple ATPs; however, none of her ATPs placed her at MMI.
¶13 In June 2015, Destination Maternity and its insurer, Liberty Mutual Insurance Company (collectively, “Destination Maternity“), hired a third-party physician, Dr. Allison Fall, to examine Burren. Dr. Fall concluded that Burren had
not suffered any work-related neck injury and predicted that she would reach MMI for her right arm and shoulder injuries “in three to six months.” Dr. Fall also noted that Burren‘s subjective pain complaints did not “match the injury and the objective findings,” and she recommended that Burren “pursu[e] a psychological evaluation.”
¶14 After that appointment, Burren continued to receive medical treatment from her ATPs. One of those physicians, Dr. Michael Horner, placed Burren at MMI for her neck injury on June 28, 2016. Dr. Fall re-examined Burren about one month later, at which point she placed Burren at MMI for her right arm and shoulder injuries as of August 9, 2016, with no permanent impairment. Destination Maternity then properly petitioned for a twenty-four-month DIME under
¶15 The DIME doctor, Dr. Clarence Henke, examined Burren on December 27, 2016, and he concluded that: (1) Burren suffered work-related injuries to her right arm, right shoulder, and neck; and (2) none of those injuries had reached MMI. Destination Maternity challenged Dr. Henke‘s conclusions under
¶16 After a hearing at which both Burren and Dr. Fall testified, the ALJ concluded that Destination Maternity produced enough evidence contradicting
the DIME to prove that it‘s “highly probable” that Dr. Henke was incorrect. Further, the ALJ noted that:
- Dr. Henke‘s examination and report were incomplete, as he proceeded “without having numerous relevant and necessary medical records, including Dr. Fall‘s [second] report“;
- Dr. Henke “failed to provide any details or analysis as to why [Burren] [wa]s not
at MMI, or what needs to be done for [her] to reach MMI“; - although Dr. Henke recommended that Burren follow-up with one of her ATPs for further medical care, he “failed to state what body part [she] should follow up with,” and what type of future care she needed “despite nearly three years of treatment without any perceived benefit“; and
- Dr. Henke failed to provide an impairment rating, “a required step in the DIME process.”
The ALJ also found that Burren‘s testimony that no medical treatment provided her relief, her “ambivalence” about continued treatment, her “exaggerated” reports of pain and symptoms, and her refusal to undergo a psychological exam, “undermine[d] [Burren‘s] credibility concerning the presence of an actual injury.” The ALJ concluded that Destination Maternity had overcome the DIME doctor‘s conclusions by clear and convincing evidence, and the ALJ placed Burren at MMI for her workplace injuries as of June 28, 2016, with no permanent impairment.1
¶17 Burren appealed the ALJ‘s decision to the Industrial Claim Appeals Office (“ICAO“). She argued that because none of her ATPs, nor the DIME doctor, placed her at MMI for all of her workplace injuries, the ALJ lacked authority to do so.2 Burren further asserted that because neither the ATPs nor the DIME doctor placed her at MMI, those physicians couldn‘t calculate her permanent impairment rating; therefore, the ALJ erred by interpreting that lack of rating as an indication that Burren suffered no permanent impairment from her injuries.
¶18 The ICAO panel concluded that, even if a claimant‘s ATPs and a twenty-four-month DIME doctor agree the claimant isn‘t at MMI, once an ALJ determines that an employer has overcome the DIME doctor‘s opinion, the ALJ must determine the claimant‘s MMI status and permanent impairment rating as a question of fact. Burren v. Destination Maternity, W.C. No. 4-962-740-06, 2018 WL 1403659, at *5 (Colo. I.C.A.O. Mar. 15, 2018). The panel noted that an appellate court will uphold an ALJ‘s factual findings that are supported by substantial evidence in the record. Id. at *3. And the panel concluded that substantial evidence (“namely the opinions of Dr. Fall and Dr. Horner“) supported the ALJ‘s finding that Burren reached MMI on June 28, 2016, with no permanent impairment.3 Id. at *4.
¶19 A division of the court of appeals reversed the ICAO‘s decision. Burren, ¶ 1. The division concluded that an ALJ may only determine MMI as a question of fact when the ATP and the DIME doctor disagree regarding a claimant‘s MMI status. Id. In the
either the DIME or the ATP places the claimant at MMI.” Id. at ¶ 19. The division thus concluded that once the DIME physician found Burren was not at MMI, she “should have been returned to the ATP for continued treatment.” Id. at ¶ 18.
¶20 We granted Destination Maternity‘s petition for certiorari review.4
II. Analysis
¶21 We begin with the standard of review, then examine (1) the authority of an ALJ under the plain language of the Act generally and under the plain language of
A. Standard of Review
¶22 “We review the proper construction of statutes de novo.” Williams, 147 P.3d at 36. When interpreting a statute, the reviewing court “must determine and put into effect the intent of the legislature.” Davison v. Indus. Claim Appeals Office, 84 P.3d 1023, 1029 (Colo. 2004). We “‘give considerable weight to an agency‘s interpretation of its own enabling statute‘; however, we set aside actions or interpretations that are clearly erroneous, arbitrary, or otherwise not in accordance with the law.” Id. (quoting Colo. Dep‘t of Labor & Emp‘t v. Esser, 30 P.3d 189, 193 (Colo. 2001)).
B. Whether an ALJ Can Determine MMI Status
¶23 Burren contends that in this context only ATPs and DIME doctors are statutorily authorized to place a claimant at MMI. Under Burren‘s interpretation, even if an employer overcomes a DIME doctor‘s opinion that a claimant isn‘t at MMI, the ATP‘s existing finding that a claimant hasn‘t reached MMI remains fully intact. And ALJs are powerless to overrule an ATP and conclude otherwise.
¶24 Destination Maternity asserts that once an ALJ concludes that an employer has overcome the DIME doctor‘s finding that a claimant isn‘t at MMI, the ALJ can determine the claimant‘s MMI status as a question of fact.
¶25 As always, in resolving such a dispute, we start with the language and structure of the statutory scheme in question. We begin by widening our lens and
looking at the authority of ALJs under the Act generally before narrowing our focus to the language of
1. ALJs’ Authority Under the Act
¶26 The Act empowers ALJs to “decide all matters arising under [the Act].”
¶27 Before an ALJ concludes that an employer has overcome the DIME doctor‘s opinion, conflicting evidence regarding whether a claimant has reached MMI must exist. After all, the clear-and-convincing-evidence standard requires an employer
doctor who didn‘t place the claimant at MMI or the third-party physician who did. See Postlewait v. Midwest Barricade, 905 P.2d 21, 24 (Colo. App. 1995) (noting that an ALJ is not bound to credit any one physician‘s opinion regarding MMI when weighing the sufficiency of medical evidence under
¶28 Contrary to the division‘s opinion below, an ALJ‘s statutory power to render evidentiary decisions does not disappear merely because the ATP and the DIME doctor agree that a claimant hasn‘t reached MMI. The court of appeals concluded that when “there is no conflict between the ATP‘s and DIME physician‘s opinions . . . there [i]s no conflict [in medical opinions] for the ALJ to resolve.” Burren, ¶ 15. But the statute expressly injects the opinions of third-party physicians into the twenty-four-month DIME process: Before an employer may request a twenty-four-
month DIME, a third-party physician must have placed the claimant at MMI.
¶29 Accordingly, if an employer overcomes a twenty-four-month DIME doctor‘s MMI opinion, an ALJ may determine an employee‘s MMI status as a question of fact.
2. The ICAO‘s Interpretation of Section 8-42-107(8)(b)(III)
¶30 The ICAO has interpreted
¶31 In McFadden, the employer and the insurer requested a DIME after none of the ATPs placed the employee at MMI. Id. at *1. The DIME doctor agreed with the ATPs and found that the employee wasn‘t at MMI; however, the employer and insurer challenged the DIME doctor‘s opinion under subsection (8)(b)(III),
presenting evidence by a third-party physician that the claimant had reached MMI. Id. at *1–2. The ALJ concluded that the employer and insurer had overcome the DIME doctor‘s findings by clear and convincing evidence and placed the claimant at MMI, crediting the employer‘s third-party physician‘s testimony. Id.
¶32 The ICAO upheld the ALJ‘s decision. Id. at *3. Like the panel that reviewed Burren‘s claim, the McFadden panel approved: (1) the ALJ‘s reliance on a third-party physician‘s testimony regarding the employee‘s MMI status, id. at *2; and (2) the ALJ‘s decision to place the claimant at MMI even though neither the DIME doctor nor the ATP had placed the employee at MMI, id. at *2–3. Thus, McFadden supports allowing an ALJ to place a claimant at MMI as part of the DIME dispute process, even if a third-party physician is the only doctor who found the employee at MMI.
3. The Legislature‘s Intent in Adding the Twenty-Four-Month DIME Provisions
¶34 Finally, by adding the twenty-four-month DIME provisions in
¶35 Originally, the Act allowed only ATPs to place an employee at MMI. See Ch. 112, sec. 1, § 8-42-107(8)(b), 1996 Colo. Sess. Laws 456, 456-57. If an ATP refused to do so, the Act did not provide employers the opportunity to obtain a second opinion from a neutral, division-sponsored physician. But in 1996 the General Assembly added the twenty-four-month DIME provisions in
accurate second opinion. See 1996 Colo. Sess. Laws at 457. The division‘s holding severely limits the remedial power of these provisions.
¶36 The division relied on this court‘s decision in Williams to hold that a claimant must return to the ATP for continued treatment if the ATP and DIME doctor agree that the claimant isn‘t at MMI. Burren, ¶¶ 17-18. But in Williams, the employer did not challenge the DIME doctor‘s MMI opinion. 147 P.3d at 34–35. Thus, the DIME doctor‘s determination that the claimant hadn‘t reached MMI retained its presumptive effect. Magnetic Eng‘g, 5 P.3d at 387. Here, Destination Maternity not only challenged but overcame the DIME doctor‘s opinion by clear and convincing evidence. Therefore, Williams is inapposite.
¶37 The division recognized that its “interpretation of the statute effectively precludes an employer‘s ability to challenge a twenty-four-month DIME when the DIME agrees with the ATP that a claimant is not at MMI.” Burren, ¶ 19. The division justified its holding by noting that “prior to the addition of
¶38 While the division‘s observation is correct, its holding fails to give full effect to the statutory amendments. First, the division‘s approach returns the claimant to the ATP for continued treatment, even though the legislature added the twenty-
four-month DIME provision to prevent unending care by an ATP when conflicting medical evidence indicates the claimant has reached MMI and two years have passed since the date of injury. See 1996 Colo. Sess. Laws at 457. And, just as the division noted, it would essentially prevent employers from challenging a DIME doctor‘s determination that a claimant isn‘t at MMI if the ATP also found the claimant isn‘t at MMI. Yet courts should avoid statutory constructions that would render certain provisions “without practical effect.” Howard v. People, 2020 CO 15, ¶ 13, 458 P.3d 893, 897 (quoting Roberts v. Bruce, 2018 CO 58, ¶ 9, 420 P.3d 284, 286). Therefore, we avoid such a construction here.
¶39 The division also proposed an alternate solution for employers in this situation
C. Whether an ALJ Can Determine Permanent Impairment
¶40 Burren also argues that we shouldn‘t allow an ALJ to place an employee at MMI on these facts because of the effect on a claimant‘s permanent impairment rating. More pointedly, Burren contends that only an ATP or a DIME doctor can determine a claimant‘s permanent impairment rating, and those physicians cannot provide that rating until placing the claimant at MMI. Thus, allowing an ALJ to place a claimant at MMI in such cases and then determine a claimant‘s permanent impairment would deprive claimants of their statutory right to an ATP- or DIME-doctor-approved rating and force injured employees to undertake the financially burdensome task of presenting their own evidence regarding permanent impairment.
¶41 We disagree. First, the Act doesn‘t specify that only ATPs and twenty-four-month DIME doctors may determine a claimant‘s permanent impairment rating. ATPs and DIME doctors may calculate a claimant‘s impairment rating. See
¶42 We also reject Burren‘s assertion that allowing an ALJ to determine a claimant‘s impairment rating under these circumstances forces an injured employee to undertake the financially burdensome task of producing evidence of impairment from a third-party physician. Both the Act and the procedures of the Division of Workers’ Compensation (the “DWC“) include safeguards that prevent such an outcome. Notably, the statute doesn‘t require that an ATP or a twenty-four-month DIME doctor first place an employee at MMI before calculating the employee‘s permanent impairment rating. True, if an ATP or DIME doctor determines that a claimant has reached MMI, then that physician must determine the claimant‘s impairment rating.
¶44 Here, the DWC directed Dr. Henke, the twenty-four-month DIME doctor who examined Burren, to address permanent impairment. Thus, Dr. Henke should have provided Burren with a provisional impairment rating that she could have introduced at the DIME dispute hearing. Although Dr. Henke failed to provide the rating as requested by Destination Maternity, the DWC again offered both parties the opportunity to solicit a provisional rating from Dr. Henke. In the Division‘s letter to Burren notifying her that Dr. Henke did not place her at MMI, the Division stated: “If the physician did not provide a rating, and either or both parties desire that a rating (for informational purposes) be provided, please convey your request to the [Independent Medical Examination] Unit and we will forward it to the physician.”
¶45 Thus, neither the Act nor the DWC‘s procedural rules prevented Burren from obtaining a DIME-doctor-approved provisional rating, free of charge to her. Burren simply elected not to do so.
¶46 We therefore decline to deprive ALJs of their authority to place an employee at MMI because of the effect on an employee‘s permanent impairment rating. Once an ALJ determines an employee has reached MMI, the employee‘s permanent impairment rating becomes a question of fact that the ALJ can resolve after considering any conflicting medical evidence regarding impairment.9
III. Conclusion
¶47 We reverse the judgment of the court of appeals and remand this case to the court of appeals for further proceedings consistent with this opinion.
JUSTICE MÁRQUEZ dissents.
JUSTICE MÁRQUEZ, dissenting.
¶48 Where an employer-selected authorized treating physician (“ATP“) and a Division Independent Medical Examination (“DIME“) physician reach opposite conclusions about whether a claimant has reached maximum medical improvement (“MMI“) for a work-related injury, I agree that an administrative law judge (“ALJ“) may resolve the conflict as a factual matter by crediting one physician‘s determination over the other. But where both the ATP and DIME physician conclude that a claimant has not reached MMI, I disagree that the Workers’ Compensation Act authorizes the ALJ to conclude otherwise based on the opinion of an employer-retained third-party physician.
¶50 I would affirm the court of appeals and hold that the Act does not authorize an ALJ to find MMI where neither an ATP nor a DIME physician has placed the claimant at MMI. Like the court of appeals, I conclude that nothing prevents an employer from reinvoking the twenty-four-month DIME process, and thus, employers still have avenues to challenge a claimant‘s ongoing treatment. But unlike the majority, I would not read into the Act a remedy that the legislature did not provide for the relatively rare situation presented here. Because I disagree with the majority‘s construction of the Act, and because the record does not support the June 28, 2016 MMI date in any event, I respectfully dissent.
I. Facts and Procedural History
¶51 Susan Burren sustained work-related injuries to her neck, arm, and shoulder in September 2014. Burren received treatment from several ATPs, none of whom placed her at MMI. Destination Maternity retained a third-party physician, Dr. Allison Fall, to examine Burren. On June 24, 2015, Dr. Fall opined that Burren was not at MMI, but she anticipated that Burren would reach MMI “in three to six months.”
¶52 On June 28, 2016, one of Burren‘s ATPs, Dr. Homer, placed Burren at MMI for her cervical spine injury only, but no ATP placed Burren at MMI for her other injuries; consequently, no ATP assigned her an overall MMI status or a permanent impairment rating.
¶53 Dr. Fall examined Burren a second time on August 9, 2016. At that time, Dr. Fall opined that Burren had reached MMI with no permanent impairment.
¶54 Several weeks after receiving Dr. Fall‘s opinion, Destination Maternity requested a twenty-four-month DIME under
¶55 Unsatisfied, Destination Maternity requested a hearing to overcome the DIME physician‘s finding. At that hearing, Dr. Fall criticized the DIME report and testified that Burren had not suffered a work-related injury to her cervical spine. Dr. Fall did not modify the findings in her June 2015 or August 2016 reports regarding MMI.
¶56 Following the hearing, the ALJ concluded that Destination Maternity had overcome the DIME‘s findings by clear and convincing evidence. Notably, in its November 22, 2017 supplemental order, the ALJ incorrectly stated that Dr. Fall opined that Burren was at MMI as of June 24, 2015: “On June 24, 2015, Allison Fall, M.D., performed a second Respondents sponsored [examination]. Dr. Fall reported that [Burren] was at MMI without impairment, and that there was no work-related injury to [Burren]‘s cervical spine.” In fact, Dr. Fall‘s reports reflect that she did not conclude that Burren was at MMI until August 9, 2016.
¶57 In the conclusions of law portion of the order, the ALJ noted that “[t]he determination of MMI must be made by an authorized treating physician.
¶58 The ALJ ultimately concluded that Destination Maternity had overcome the DIME report by clear and convincing evidence. Regarding MMI, the ALJ concluded that “[Burren] reached MMI as of June 28,
¶59 Burren petitioned for ICAO review, contending that the ALJ erred in finding her at MMI and assigning her a permanent impairment rating when no ATP or DIME had found that she had reached MMI or assigned her an overall permanent impairment rating. Burren also argued that the ALJ erred by finding she was at MMI for only one of her three injuries, noting that the court of appeals has long held that the Workers’ Compensation Act contains no provision for “partial” MMI. See Paint Connection Plus v. Indus. Claim Appeals Office, 240 P.3d 429, 433 (Colo. App. 2010).
¶60 The ICAO panel affirmed the ALJ‘s order. In so doing, it agreed with Burren that “MMI is not divisible and cannot be parceled out among the various components of a multi-faceted industrial injury,” but concluded “that is not what the ALJ did here.” Burren v. Destination Maternity, W.C. No. 4-962-740-06, 2018 WL 1403659, at *4 (Colo. I.C.A.O. Mar. 15, 2018). Instead, the panel reasoned, the ALJ had found Burren was at MMI as of June 28, 2016, for all of her work-related injuries based on the opinions of Dr. Fall and the ATP:
The ALJ essentially adopted the opinions of . . . Dr. Fall and [the ATP], that the claimant reached MMI for all of her industrial injuries as of June 28, 2016 . . . . [S]ince the ALJ‘s finding regarding the [June 28, 2016] MMI date is supported by substantial evidence, namely the opinions of Dr. Fall and [the ATP], we have no basis to set aside the ALJ‘s supplemental order on this ground. . . .
Again, relying upon the opinions of Dr. Fall, the ALJ here found that the claimant was at MMI for all her industrial injuries on June 28, 2016, with no impairment.
Id. at *4-5.
¶61 The ICAO panel reached this conclusion, even though
- the ATP placed Burren at MMI as of June 28, 2016, for her cervical spine injury only;
- the ALJ‘s order finds MMI only with respect to Burren‘s cervical spine injury, not all her injuries;
- no doctor opined that Burren reached MMI as of June 28, 2016, for her shoulder and arm injuries; and
- Dr. Fall did not place Burren at MMI for her injuries until August 9, 2016.
¶62 Burren appealed, and the court of appeals set aside the panel‘s order, concluding that
II. Analysis
¶63 Understood in context,
¶64 Thus, I disagree with the majority‘s interpretation of the Act. But I also believe the record before us does not support the June 28, 2016 MMI date upheld by the majority in any event.
A. Section 8-42-107(8) and Determination of MMI
¶65 The declared purpose of the Workers’ Compensation Act is to “assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of any litigation.”
¶66 As the majority correctly observes, maj. op. ¶¶ 5-6, a claimant under the Act receives both medical treatment and temporary disability benefits until the worker reaches MMI,
¶67
¶68 Because the employer or the employer‘s insurer selects the ATPs who treat an employee‘s workplace injuries,2 see Kunau, 147 P.3d at 36, ATPs have been viewed as potentially favoring the employer‘s position. In fact, when the legislature first created the DIME process in 1991, Ch. 219, sec. 15,
¶69 For many years, employers had no opportunity to challenge the ATP‘s finding that a claimant had not reached MMI. See Aren Design, Inc. v. Becerra, 897 P.2d 902, 904 (Colo. App. 1995). But in 1996, the legislature amended the Act to give employers a second bite at the MMI apple by providing an opportunity to request a DIME where an ATP has determined that the claimant has not reached MMI. See Ch. 112, sec. 1,
¶70 Notably, under this scheme, the employer-retained third-party physician‘s examination
¶71 Under
¶72
¶73 Viewed in the context of
B. The Act Does Not Authorize the ALJ to Find MMI Based Solely on the Opinion of an Employer-Hired Third-Party Physician
¶74 I believe the majority errs by interpreting
¶75 The majority reasons that its interpretation avoids rendering provisions of the statute without practical effect. Maj. op. ¶ 38. But the provision allows an employee to challenge a DIME physician‘s determination that a claimant has reached MMI. Thus, the provision continues to have important, practical application where the ATP and DIME physician do not agree. And as the court of appeals observed, even when the ATP and DIME physician agree a claimant has not reached MMI, nothing precludes the employer from reinvoking the DIME process. However, I am unwilling to read into the statute a remedy that the legislature did not provide for the relatively rare situation where both an employer-selected ATP and a DIME physician agree that a claimant has not reached MMI.
¶76 Finally, to the extent the majority relies on the nonbinding ICAO opinion in McFadden v. Sun Health Care, W.C. No. 4-710-119, 2011 WL 737114 (Colo. I.C.A.O. Feb. 25, 2011), to support its interpretation of the Act, its deference to that opinion is troubling. Maj. op. ¶¶ 30-33. Although we may defer to an agency‘s reasonable interpretation
C. The Record Does Not Support the June 2016 MMI Date
¶77 Although I disagree with the majority‘s statutory interpretation, I also note that the June 28, 2016 MMI date is simply not supported by the record. As set out above, the ICAO panel concluded that the ALJ had found Burren was at MMI as of June 28, 2016, for all of her work-related injuries based on the opinions of Dr. Fall and the ATP, even though the ATP placed Burren at MMI as of June 28, 2016, for her cervical spine injury only; the ALJ‘s order finds MMI only with respect to Burren‘s cervical spine injury, not all her injuries; no doctor opined that Burren reached MMI as of June 28, 2016, for her shoulder and arm injuries; and Dr. Fall did not place Burren at MMI for her injuries until August 9, 2016.
¶78 The majority sidesteps this issue by reasoning that these factual questions are not within the scope of our certiorari review. Maj. op. ¶¶ 16-17 nn.1-2. I disagree. The question in this case is whether the ALJ has the authority to find a claimant at MMI where no ATP or DIME physician found the claimant at MMI. But here, the ALJ‘s order found the claimant at MMI as of June 2016 only for her cervical spine injury, based on the ATP‘s conclusion that Burren had reached MMI as of June 2016 only for the cervical spine injury. In my view, the ICAO panel erroneously construed the ALJ‘s order to mean more than it said and arrived at an MMI date that is simply unsupported by the record or the ALJ‘s findings and order.5
III. Permanent Impairment Rating
¶79 Because I conclude that the ALJ could not find Burren had reached MMI based on a third-party physician‘s opinion, I need not reach the issue of the permanent impairment rating.
¶80 First, the majority relies on
¶81 Second, the majority appears to blame Burren for the shortcomings in the DIME physician‘s report. The DIME physician did fail to issue a provisional permanent impairment rating. But such a rating is merely
IV. Conclusion
¶82 Because I disagree with the majority‘s statutory interpretation, and because the MMI date is unsupported by the record in this case, I respectfully dissent.
Notes
Whether the court of appeals erred in holding that an administrative law judge cannot determine when an injured worker has reached maximum medical improvement when neither an authorized treating physician nor a division independent medical examiner has placed an injured worker at maximum medical improvement, despite the plain language of section 8-42-107(8)(b)(III), C.R.S. (2019), which permits the finding(s) of a division independent medical examiner to be overcome by clear and convincing evidence. The DIME then has that third-party physician‘s report available to her when she makes her MMI determination.