Destination Maternity & Liberty Mut. Ins. Co. v. Burren

• Decision Date: 18 May 2020
• Docket Number: Supreme Court Case No. 19SC298
• Citation: 463 P.3d 266
• Parties: DESTINATION MATERNITY and Liberty Mutual Insurance Company, Petitioners v. Susan BURREN, Respondent.
• Court: Colorado Supreme Court

463 P.3d 266

DESTINATION MATERNITY and Liberty Mutual Insurance Company, Petitioners

v.Susan BURREN, Respondent.

Supreme Court Case No. 19SC298

Supreme Court of Colorado.

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, Denver, Colorado

En Banc

JUSTICE HOOD delivered the Opinion of the Court.

¶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 employer's insurer sought a second opinion regarding Burren's MMI status, and Burren subsequently underwent a Division Independent Medical Examination ("DIME"). The DIME doctor who examined Burren also declined to place her at MMI. The employer and insurer then challenged the DIME doctor's opinion under section 8-42-107(8)(b)(III), C.R.S. (2019), of the Workers' Compensation Act ("Act"). For the reasons discussed below, an administrative law judge ("ALJ") concluded that the employer and insurer had overcome the DIME doctor's finding. The ALJ then placed Burren at MMI with a finding of no permanent impairment, making Burren ineligible to receive permanent disability benefits. An administrative panel agreed with the ALJ. Burren appealed.

¶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 section 8-42-107(8)(b)(III), the ALJ may determine the claimant's MMI status and permanent impairment rating as questions of fact.

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, § 8-42-105(3)(a), C.R.S. (2019), the "point in time when any medically determinable physical or mental impairment

as a result of [workplace] injury has become stable and when no further treatment is reasonably expected to improve the condition," § 8-40-201(11.5), C.R.S. (2019). After reaching MMI, a claimant stops receiving temporary disability benefits, and if the injury resulted in permanent medical impairment, the claimant begins receiving permanent disability benefits. Harman-Bergstedt , ¶ 13, 320 P.3d at 330.

¶7 Generally, an ATP determines whether a claimant has reached MMI. § 8-42-107(8)(b)(I) ("An authorized treating physician shall make a determination as to when the injured employee reaches maximum medical improvement."). If an ATP places the claimant at MMI and "permanent medical impairment has resulted from the injury, the [ATP] shall determine a medical impairment rating as a percentage of the whole person." Id. at -107(8)(c). A claimant's medical impairment rating dictates how much the claimant will receive in permanent disability benefits. Id. at -107(8)(d).

¶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.

Id. at -107(8)(b)(II)(A)–(D). If the DIME doctor determines that a claimant has reached MMI, the doctor "shall also determine the injured worker's permanent medical impairment rating." Id. at -107(8)(b)(III).

¶9 Because an employer cannot request such an exam until twenty-four months after the injury, that exam is known as a "twenty-four-month DIME." See Burren v. Indus. Claim Appeals Office , 2019 COA 37, ¶ 5, ––– P.3d ––––. As the party requesting the twenty-four-month DIME, the employer must pay the full cost of the exam. § 8-42-107.2(5)(a), C.R.S. (2019).

¶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, section 8-42-107(8)(b)(III) allows a party to overcome the DIME doctor's "finding regarding [MMI] ... by clear and convincing evidence." Clear and convincing evidence is "stronger than a mere ‘preponderance’; it is evidence that is highly 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]." § 8-43-201(1), C.R.S. (2019). Thus, an ALJ is the arbiter of disputes under section 8-42-107(8)(b)(III) and determines whether the appealing party has overcome the twenty-four-month DIME doctor's MMI determination by clear and convincing evidence. Magnetic Eng'g , 5 P.3d at 387.

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 section 8-42-107(8)(b)(II).

¶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 section 8-42-107(8)(b)(III).

¶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]...