The Colorado Court of Appeals (the Court) determined in Peitz, as a matter of first impression, that Rule 11-5 of the Workers’ Compensation Rules of Procedure (WCRP) does not prohibit a physician performing a DIME from evaluating all aspects of a worker’s injury in determining whether the worker has obtained maximum medical improvement (“MMI”).
In February 2020, the claimant sustained an admitted work injury to his lower back while working as a mechanic for the Board of Water Works of Pueblo. Initial treatment of the injury resulted in a diagnosis of a strain of muscle, fascia, and tendon in claimant’s lower back. Respondents eventually requested an independent medical examination (IME), wherein the claimant additionally complained of right hip pain, with a burning sensation in his groin. The IME doctor opined that the hip issues should be mitigated before the claimant received further treatment for the lower back injury. Claimant thus received a bilateral hip replacement in December 2020, and subsequently underwent a lumbar fusion. At a hearing to determine whether the claimant was entitled to medical benefits for his hip and groin issues, the ALJ held that claimant had failed to prove that the hip or groin symptoms were related to his work injury.
In December of 2022, the claimant was placed at MMI with a 30% whole person impairment rating by his authorized treating provider. The claimant sought a DIME and checked the boxes for “Region 4: Spine/Lumbar” on the “Notice and Application” as the body part to be evaluated in the DIME. The DIME physician, Dr. Paul Ogden, concluded that the claimant was not yet at MMI due to chronic pain disorder and left hip pain that still needed to be addressed, but assigned a 27% whole person impairment rating for claimant’s injuries. The respondents filed an Application for Hearing to overcome the DIME, its compensable components, and Dr. Ogden’s determination regarding MMI. Specifically, respondents argued that, because the claimant did not ask for his hip to be evaluated during the DIME, Dr. Ogden could not address that body part. Respondents cited to WCRP 11-5(A), which provides a schedule for the fees a DIME physician may charge based on the number of body parts selected, the date of injury, and, in exceptional circumstances, the number of medical records. Additionally, respondents argued that, because the ALJ had already ruled on the issue of compensability regarding claimant’s hip and groin issues, such body parts could not be included in the calculation of permanent impairment.
The ALJ ruled in respondents’ favor regarding Dr. Ogden’s overstepping of the scope of his examination, but found that respondents failed to overcome the DIME’s 27% impairment rating.
On appeal, the Industrial Claim Appeals Office (the Panel) reversed in part, holding that WCRP 11-5 does not prevent a DIME physician from evaluating all body parts in determining MMI, regardless of the particular body parts selected on the DIME form.
Notwithstanding, the Panel also reasoned that, because the ALJ had made a previous determination regarding compensability of the hip and groin issues, the claimant was barred from making the same argument again (referring to the legal concept of issue preclusion). Claimant appealed to the Court.
The Court first analyzed the language of WCRP 11-5 to determine whether it restricts a DIME physician’s scope of examination. The Court found that the rule was silent on the matter; in addition, the statute addressing DIME’s, §8-42-107.2, was also silent on the matter. In giving effect to the rule’s plain language, and keeping in mind the fact that the Court could not read language into the rule, the Court held that, when assessing MMI, a DIME physician may consider all relevant body parts, even if those body parts were not designated on the DIME form.
Next, the Court reversed the Panel’s decision regarding issue preclusion, stating that the Panel erred by determining that the issue of whether claimant could receive benefits of his hip and groin was identical to the issues presented at the second hearing. Citing to prior case law rulings in Ortega v. JBS USA, LLC, W.C. No. 4-804-825, 2013 WL 3325150 (Colo. I.C.A.O. June 27, 2013), and Sunny Acres Villa, Inc. v. Cooper, 25 P.3d 44 (Colo. 2001), the Court held that issue preclusion did not apply because “prelitigation” of the DIME process is inconsistent with the DIME statute (i.e. set forth different standards of proof), the issues addressed by the ALJ and DIME physician were not identical, and the claimant did not have the same information and incentive to litigate causation prior to the DIME physician’s determination of MMI. Therefore, the Court reasoned, the ALJ’s initial resolution of causation in the treatment context could not be given preclusive effect and thereby usurp the DIME process for purposes of determining MMI.
Peitz v. Indus.l Claim Appeals Office, No. 24CAO0250 (Colo. App. Sep. 12, 2024).
Want to know more? Contact Katherine Lee at [email protected] or 877-259-5693.
