Burren v. Indus. Claim Appeals Office of Colo.
| Decision Date | 07 March 2019 |
| Docket Number | Court of Appeals No. 18CA0565 |
| Citation | 467 P.3d 1163 |
| Parties | Susan BURREN, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado, Destination Maternity, and Liberty Mutual Insurance Company, Respondents. |
| Court | Colorado Court of Appeals |
Irwin Fraley, PLLC, Roger Fraley, Jr., Centennial, Colorado, for Petitioner
No Appearance for Respondent Industrial Claim Appeals Office
Ruegsegger Simons Smith & Stern, Michele Stark Carey, Denver, Colorado, for Respondents Destination Maternity and Liberty Mutual Insurance Company
Opinion by JUDGE WELLING
¶ 1 This workers' compensation action requires us to address whether a claimant can be placed at maximum medical improvement (MMI) by an administrative law judge (ALJ) despite the lack of an MMI finding from any treating physician or the physician conducting the division-sponsored independent medical examination (DIME). We conclude that an ALJ cannot determine MMI when neither a treating physician nor a DIME physician has placed the injured worker at MMI. We therefore set aside the order of the Industrial Claim Appeals Office (Panel) upholding the ALJ's order, and we remand the matter to the Panel to return the case to the ALJ to enter an order consistent with this opinion.
¶ 2 Claimant, Susan Burren, worked for employer, Destination Maternity, in a store called A Pea in the Pod. On September 25 and 26, 2014, she sustained admitted work-related injuries to her arm and shoulder. Several physicians treated her for her injuries well into 2017. Despite several years of treatment, claimant complained that her pain continued to worsen. She testified that none of the treatment she received improved her condition. None of claimant's treating physicians placed her at MMI.
¶ 3 In June 2015, employer retained Dr. Allison Fall to perform a medical examination of claimant. Dr. Fall opined that claimant was not at MMI at that time, but anticipated that claimant would reach MMI "in three to six months."
¶ 4 Dr. Fall examined claimant a second time in August 2016. In her ensuing report, Dr. Fall set forth her impressions of claimant's condition as follows:
1. Work-related right ulnar neuritis
without current complaints, essentially resolved.
2. Right upper trapezius and levator scapular myofascial pain with subjective complaints outweighing objective findings.
3. Somatoform or conversion disorder, ruled out as work-related.
She also opined that claimant had reached MMI with "no permanent impairment for subjective complaints of upper quadrant myofascial pain."
¶ 5 Several weeks after receiving Dr. Fall's opinion, employer requested a twenty-four-month DIME pursuant to section 8-42-107(8)(b)(II), C.R.S. 2018, because no treating physician had placed claimant at MMI in the two years that had elapsed since her work-related injury. Dr. Clarence Henke was selected to perform the DIME. He examined claimant and opined that claimant suffered from right ulnar nerve compression
, right median nerve compression at wrist level, right rotator cuff tendinitis, and cervical myalgia. As now pertinent, he also determined claimant was not at MMI.
¶ 6 Not satisfied with this result, employer applied for a hearing to overcome Dr. Henke's DIME opinion. Dr. Fall testified at the hearing that the mechanism of claimant's injury could not have injured her cervical spine
. Dr. Fall also criticized Dr. Henke's DIME report, pointing out that Dr. Henke did not rate claimant's impairment as required, failed to explain why he concluded claimant was not at MMI, and recommended follow-up treatment without specifying the treatment needed. Hearing this and claimant's testimony, the ALJ ruled that employer clearly and convincingly overcame the DIME. The ALJ expressly found Dr. Fall's opinions and testimony to be more "well-informed, thorough, credible and persuasive than those of DIME Dr. Henke." The ALJ also noted:
The DIME doctor reviewed only a portion of Claimant's medical records and failed to consider Dr. Fall's second [independent medical exam] report. He did not rate any impairment as required. Dr. Henke failed to provide any details or analysis as to why Claimant is not at MMI, or what needs to be done for Claimant to reach MMI. Dr. Henke failed to state what body part Claimant should follow up with, what type of orthopedic evaluation Claimant needs, or why further orthopedic evaluation is necessary, despite nearly three years of treatment without any perceived benefit.
She therefore concluded that the evidence employer presented to overcome the DIME "is unmistakable and free from serious or substantial doubt showing it highly probable the DIME physician is incorrect." Having found that employer overcame the DIME, the ALJ determined that claimant reached MMI on June 28, 2016, the date on which one of her treating physicians placed her cervical spine at MMI.
¶ 7 On review, the Panel upheld the ALJ's order, concluding that substantial evidence supported the decision. The Panel also rejected claimant's contention that the ALJ misapplied the statute when she found claimant at MMI as of June 28, 2016. The Panel disagreed with claimant's position that an ALJ cannot find a claimant to be at MMI unless a treating physician or the DIME has placed the claimant at MMI. In the Panel's view, once an ALJ determines that a DIME physician's MMI opinion has been clearly and convincingly overcome, "the ALJ [is] required to determine the claimant's MMI date as a matter of fact."
¶ 8 On appeal, claimant contends that the Panel and the ALJ have misinterpreted section 8-42-107(8)(b). In claimant's view, by permitting the ALJ to determine a claimant's MMI date as a matter of fact, the Panel disregards the requirement of section 8-42-107(8)(b)(I) that "[a]n authorized treating physician shall make a determination as to when the injured employee reaches maximum medical improvement as defined in section 8-40-201(11.5)[, C.R.S. 2018]." According to claimant, once the ALJ determined employer overcame the DIME, the ALJ should have ordered her treatment resumed until her authorized treating physician (ATP) placed her at MMI. We agree that the ALJ and the Panel have misapplied the statute, but not for the reason argued by claimant.
¶ 9 Section 8-42-107 provides, in relevant part, as follows:
¶ 10 When we interpret a provision of the Workers' Compensation Act (Act), "we interpret the statute according to its plain and ordinary meaning" if its language is clear. Davison v. Indus. Claim Appeals Office , 84 P.3d 1023, 1029 (Colo. 2004). In addition, "when examining a statute's language, we give effect to every word and render none superfluous because we ‘do not presume that the legislature used language idly and with no intent that meaning should be given to its language.’ " Lombard v. Colo. Outdoor Educ. Ctr., Inc. , 187 P.3d 565, 571 (Colo. 2008) (quoting Colo. Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist. , 109 P.3d 585, 597 (Colo. 2005) ).
¶ 11 We review an issue of statutory construction de novo. Ray v. Indus. Claim Appeals Office , 124 P.3d 891, 893 (Colo. App. 2005), aff'd , 145 P.3d 661 (Colo. 2006). Although we defer to the Panel's reasonable interpretations of the statute it administers, Sanco Indus. v. Stefanski , 147 P.3d 5, 8 (Colo. 2006) ; Dillard v. Indus. Claim Appeals Office , 121 P.3d 301, 304 (Colo. App. 2005), aff'd , 134 P.3d 407 (Colo. 2006), we are not bound by the Panel's interpretation or its earlier decisions. Olivas-Soto v. Indus. Claim Appeals Office , 143 P.3d 1178, 1180 (Colo. App. 2006). "The Panel's interpretation will ... be set aside ‘if it is inconsistent with the clear language of the statute or with the legislative intent.’ " Town of Castle Rock v. Indus. Claim Appeals Office , 2013 COA 109, ¶ 11, 373 P.3d 609 (quoting Support, Inc. v. Indus. Claim Appeals Office , 968 P.2d 174, 175 (Colo. App. 1998) ), aff'd , 2016 CO 26, 370 P.3d 151.
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