Meza v. Indus. Claim Appeals Office of State

• Decision Date: 09 May 2013
• Docket Number: Court of Appeals No. 12CA0797
• Citation: 303 P.3d 158
• Parties: Ricardo MEZA, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado; Swift Foods Company; and Zurich American Insurance Company, Respondents.
• Court: Colorado Court of Appeals

303 P.3d 158

Ricardo MEZA, Petitioner,

v.INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado; Swift Foods Company; and Zurich American Insurance Company, Respondents.

Court of Appeals No. 12CA0797

Colorado Court of Appeals, Div. VII.

Announced May 9, 2013

Industrial Claim Appeals Office of the State of Colorado, WC No. 4–625–053

Hoggatt Law Office, P.C., Darby L. Hoggatt, Fort Collins, Colorado, for Petitioner

John W. Suthers, Attorney General, Alice Q. Hosley, Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office

Ritsema & Lyon, P.C., Michael A. Perales, Denver, Colorado, for Respondents Swift Foods Company and Zurich American Insurance Company

Opinion by JUDGE RICHMAN

¶ 1 In this workers' compensation action, claimant, Ricardo Meza, seeks review of a final order of the Industrial Claim Appeals Office (Panel) affirming an administrative law judge's order awarding claimant permanent partial disability (PPD) benefits based on an impairment rating of ten percent of the lower right extremity given claimant after a division-sponsored independent medical examination (DIME).

¶ 2 Claimant argues that the ALJ: (1) lacked jurisdiction because employer did not appeal from an earlier eighteen-month DIME; (2) failed to give appropriate presumptive weight to the eighteen-month DIME, and (3) rendered an impairment decision not supported by substantial evidence. We address and reject each argument in turn, concluding that an eighteen-month DIME carries presumptive weight only with respect to maximum medical improvement (MMI), but not as to impairment; and because the ALJ correctly determined that the eighteen-month DIME's impairment rating was consequently not binding, substantial evidence supported the ALJ's PPD determination and therefore affirm the Panel's order.

I. Background

¶ 3 Claimant sustained an admitted, compensable injury in 2004 when a cow bone fell on his right foot. On November 26, 2004, his authorized treating physician (ATP) placed him at MMI with no impairment and released him to work without restrictions. Plaintiff continued to experience pain, however, including the development of low back pain about four years after his initial injury.

¶ 4 Based on these pain complaints, employer, Swift Foods Company, and its insurer, Zurich American Insurance Company (collectively employer), agreed to reopen the claim in 2008. Upon reopening, claimant was treated by a new ATP who suspected that claimant had developed complex regional pain syndrome (CRPS) and that his low back pain was related to the foot injury. A physicianretained by employer to conduct an independent medical examination (IME) disagreed. He opined that claimant had reached MMI, that any low back pain claimant was experiencing was unrelated to the 2004 injury, and that “within medical probability” claimant did not have CRPS.

¶ 5 Because the ATP had not placed claimant at MMI within eighteen months of commencing treatment, employer requested a DIME, as authorized by section 8–42–107(8)(b)(II). The DIME physician performed the eighteen-month DIME in January 2010, and placed claimant at MMI effective the date of the exam. In addition, the eighteen-month DIME physician issued a rating of claimant's impairment at ten percent of the whole person for CRPS and eleven percent for claimant's spine, giving claimant a combined impairment rating of twenty percent of the whole person.

¶ 6 Employer filed a final admission of liability (FAL) based upon the eighteen-month DIME physician's MMI and impairment ratings. However, claimant moved to strike the FAL, arguing that under section 8–42–107(8)(b)(II) and (8)(c), C.R.S.2012, a physician performing an eighteen-month DIME is limited to determining MMI and may not properly give an impairment rating. Under section 8–42–107.5, C.R.S.2012, a claimant with an impairment rating of twenty-five percent or less of the whole person, such as the rating given claimant by the eighteen-month DIME physician, is limited to receiving no more than $75,000 in partial and permanent disability. Claimant's counsel stated at the hearing before the ALJ that he challenged the eighteen-month DIME physician's twenty percent whole person impairment rating because claimant was “trying to get over the cap.” Claimant therefore requested that he be sent back to his ATP for an impairment rating under section 8–42–107(8)(c).

¶ 7 An ALJ agreed that the eighteen-month DIME physician had overstepped his statutory authority, struck the FAL, and ordered claimant to see his ATP for a permanent impairment evaluation. The ALJ specifically ordered:

Claimant shall return to his [ATP] for a permanent impairment evaluation. Following that determination by the [ATP, employer] shall, as provided by statute, either file a [FAL] reflecting the MMI determination of [the eighteen-month DIME physician] and the impairment rating of the [ATP], or may request a [DIME] regarding either issue. If [employer] file[s] a [FAL], [c]laimant may then request a DIME by following statutory procedures.

¶ 8 Claimant returned to his ATP, who disagreed with the eighteen-month DIME physician's conclusion that claimant had reached MMI. Nonetheless, he rated claimant's impairment, giving claimant a higher impairment rating than the eighteen-month DIME physician had: eighteen percent for his spinal injuries, ten percent for CRPS, and four percent for the lower extremity, resulting in a total impairment rating of twenty-seven percent of the whole person.

¶ 9 Pursuant to the ALJ's order and section 8–42–107(8)(c), employer requested a second DIME to review the ATP's impairment rating. The parties selected a different physician to perform this second DIME. The second DIME physician agreed with the eighteen-month DIME physician that claimant had reached MMI in January 2010, but provided different impairment ratings. In her written report, the second DIME physician rated claimant's impairment as eighteen percent of the whole person, incorporating impairment ratings for his lower extremity injury, spine, and CRPS. However, in her deposition, the second DIME physician testified that the CRPS rating in the written report was “incorrect,” and opined that claimant's impairment relating to his work injury was limited to his lower extremity. She therefore testified that his corrected impairment rating was ten percent of the lower extremity or four percent of the whole person.

¶ 10 At the hearing, claimant objected to the second DIME physician's opinions. Contrary to what he had stated in his motion to strike the FAL, he argued that the second DIME physician was bound by the impairment ratings and causality findings made by the eighteen-month DIME physician because neither party had objected to those determinations. Alternatively, he argued that he had overcome the second DIME physician's opinions by clear and convincing evidence, warranting a finding that the ATP's impairment rating should prevail.

¶ 11 The ALJ disagreed, concluding that when claimant moved to strike the FAL he waived his opportunity to rely on any presumptive weight that might otherwise have been given to the eighteen-month DIME's impairment rating. Finding the testimonial opinions of the second DIME physician persuasive and credible, the ALJ also concluded that claimant had not overcome her opinions by clear and convincing evidence. The ALJ therefore awarded claimant PPD benefits based on an impairment rating of ten percent of the lower extremity, but found claimant's spine injury and CRPS unrelated and therefore awarded no benefits for those two conditions. As a result, the ALJ also denied and dismissed claimant's request “for maintenance medical care ... treatment for his lower back and ... CRPS-like complaints.”

¶ 12 On claimant's petition for review, the Panel held that employer's FAL had properly been stricken. It further held that when an eighteen-month DIME is conducted, MMI and impairment are “bifurcated” such that the eighteen-month DIME physician's opinion is presumptive only with respect to MMI; a later DIME, conducted after an ATP has issued an impairment rating, is presumptive regarding impairment. Thus, although the Panel did not adopt the ALJ's conclusion that claimant had waived his argument regarding the weight to be given to the eighteen-month DIME, the Panel nonetheless affirmed the ALJ's decision.

II. Analysis

¶ 13 On appeal, claimant seeks to have “[the second DIME physician]'s impairment ratings on CRPS and the lower back condition” added to the ALJ's PPD benefits award based on a ten percent lower extremity impairment rating. He argues that he is entitled to the higher impairment rating because (1) the ALJ was bound by the eighteen-month DIME physician's opinions and therefore lacked jurisdiction to rule on the relatedness of his alleged CRPS and low back conditions, and (2) the ALJ improperly assigned him the burden of overcoming the second DIME physician's opinion. In addition, he also seeks an award for maintenance medical care, arguing that the ALJ erred by denying him these benefits. We reject these arguments.

A. Jurisdiction

¶ 14 Claimant first contends that the ALJ was jurisdictionally barred from finding that claimant's CRPS condition, if any, and his low back complaints were unrelated to the May 2004 work-related injury. Contrary to his motion to strike the FAL, claimant argues that the determination of the eighteen-month DIME physician—who opined that claimant's low back pain and CRPS impairments were caused by claimant's 2004 work injury—was binding on the ALJ because neither party had requested a hearing to challenge his opinions. We disagree.

1. Scope of Eighteen–Month DIME

¶ 15 In general, “a DIME physician's opinions concerning MMI and permanent medical impairment are given presumptive effect,” and therefore must be overcome by clear and convincing evidence. Leprino Foods Co. v. Indus. Claim Appeals Office, 134 P.3d 475, 482 (Colo.App.200...