v. Industrial Claims Appeals Office

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
March 7, 2019

2019COA37

No. 18CA0565, Burren v. Industrial Claims Appeals Office —
Labor and Industry — Workers’ Compensation — Determination
of Maximum Medical Improvement

In this workers’ compensation case, a division of the court of

appeals addresses 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). The division concludes that an ALJ

cannot determine MMI when neither a treating physician nor a

DIME physician has placed the injured worker at MMI.

Consequence, the division sets aside the order of the Industrial

Claim Appeals Office (Panel) upholding the ALJ’s order and
remands the matter to the Panel to return the case to the ALJ to

enter an order consistent with this opinion.
COLORADO COURT OF APPEALS 2019COA37

Court of Appeals No. 18CA0565
Industrial Claim Appeals Office of the State of Colorado
WC No. 4-962-740

Susan Burren,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado, Destination Maternity,
and Liberty Mutual Insurance Company,

Respondents.

ORDER SET ASIDE AND CASE
REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE WELLING
Webb and Harris, JJ., concur

Announced March 7, 2019

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
¶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.

I. Background

¶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.

1
¶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

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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:

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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

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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.”

II. Statutory Interpretation

¶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.

A. Relevant Statute

¶9 Section 8-42-107 provides, in relevant part, as follows:

5
(8)(b)(I) An 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).

(II) If either party disputes a determination by
an authorized treating physician on the
question of whether the injured worker has or
has not reached maximum medical
improvement, an independent medical
examiner may be selected in accordance with
section 8-42-107.2[, C.R.S. 2018]; except that,
if an authorized treating physician has not
determined that the employee has reached
maximum medical improvement, the employer
or insurer may only request the selection of an
independent medical examiner if all of the
following conditions are met:

(A) At least twenty-four months have passed
since the date of injury;

(B) A party has requested in writing that an
authorized treating physician determine
whether the employee has reached maximum
medical improvement;

(C) Such authorized treating physician has not
determined that the employee has reached
maximum medical improvement; and

(D) A physician other than such authorized
treating physician has determined that the
employee has reached maximum medical
improvement.

(III) Notwithstanding paragraph (c) of this
subsection (8), if the independent medical
examiner selected pursuant to subparagraph

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(II) of this paragraph (b) finds that the injured
worker has reached maximum medical
improvement, the independent medical
examiner shall also determine the injured
worker’s permanent medical impairment
rating. The finding regarding maximum
medical improvement and permanent medical
impairment of an independent medical
examiner in a dispute arising under
subparagraph (II) of this paragraph (b) may be
overcome only by clear and convincing
evidence. A hearing on this matter shall not
take place until the finding of the independent
medical examiner has been filed with the
division.

B. Rules of Statutory Construction and Standard of Review

¶ 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)).

7
¶ 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 (quoting Support, Inc. v. Indus. Claim Appeals Office, 968 P.2d

174, 175 (Colo. App. 1998)), aff’d, 2016 CO 26.

C. MMI Finding Must Be Made by Either ATP or DIME Physician

¶ 12 Claimant contends that if neither a DIME physician nor an

ATP has found a claimant to be at MMI, section 8-42-107(8)(b)(I)

mandates that the claimant continue treating with the ATP until the

ATP places the claimant at MMI. In other words, under claimant’s

interpretation of section 8-42-107(8)(b), if a DIME conducted under

8
section 8-42-107(8)(b)(II) finds a claimant is not at MMI, treatment

should then proceed until an MMI determination is made under

section 8-42-107(8)(b)(I). To do otherwise, according to claimant,

would be to “ignore” the requirements of section 8-42-107(8)(b)(I).

¶ 13 Claimant’s interpretation is overly broad and consequently

flawed. The legislature intended subparagraphs (I) and (II) of

section 8-42-107(8)(b) to serve as alternative paths by which a

determination of MMI can be reached. As the Panel noted,

subparagraph (II) was added to the Act in 1996 to provide

employers an avenue to seek an MMI finding if an ATP’s treatment

continued despite an independent physician’s determination that

the claimant had reached MMI. See Ch. 112, sec. 1, § 8-42-

107(8)(b)(II), 1996 Colo. Sess. Laws 456-57; see also Clark v. Mac-

Make-Up Art Cosmetics, W.C. No. 4-858-859-06, 2016 WL 4361576,

at *2 (Colo. I.C.A.O. Aug. 3, 2016) (“The General Assembly first

added to the statute a provision to allow a DIME review prior to a

finding of MMI by an ATP in 1996. The purpose was to allow an

employer and its insurer a mechanism to challenge an over-treating

or inattentive physician, or an injured employee persisting in

unreasonable complaints of disability.”). The legislative goal of

9
providing employers with an alternative path toward MMI would be

thwarted and the alternative statutory avenue closed if, as claimant

suggests, every case required an ATP to make an MMI finding.

Indeed, this is the very scenario the legislature sought to remedy

when it added subparagraph (II).

¶ 14 But the Panel also erred in its interpretation. It is true that

the Panel has “long held that once the ALJ determined the DIME

physician’s MMI opinion was overcome by clear and convincing

evidence, then the ALJ was required to determine the claimant’s

MMI date as a matter of fact,” as it observed in its decision below.

And numerous Panel decisions follow this reasoning or espouse this

interpretation. See, e.g., York v. Manpower Int’l, Inc., W.C. No. 4-

837-612-04, 2016 WL 2619516, at *3 (Colo. I.C.A.O. May 4, 2016)

(Once an ALJ determines that a DIME MMI opinion has been

overcome, “the question of the claimant’s correct MMI date becomes

a question of fact for the ALJ. The only limitation is that the ALJ’s

findings must be supported by substantial evidence in the record.”)

(citations omitted), aff’d sub nom. York v. Indus. Claim Appeals

Office, (Colo. App. No. 16CA0877, Jan. 26, 2017) (not published

pursuant to C.A.R. 35(e)); Nixon v. City & Cty. of Denver, W.C. No.

10
4-770-139, 2011 WL 5234800, at *2 (Colo. I.C.A.O. Oct. 24, 2011)

(after finding DIME physician’s opinion of no MMI had been

overcome, ALJ properly determined claimant’s MMI date based on

opinion of one treating physician); Solis v. Sunshine Bldg. Maint.,

W.C. No. 4-726-043, 2009 WL 1674886, at *2-6 (Colo. I.C.A.O.

June 12, 2009) (after finding DIME physician’s determination of no

MMI had been overcome, ALJ properly determined claimant’s MMI

date based on ATP’s opinion). These Panel decisions are

distinguishable, however. As claimant points out, in those cases,

even though a DIME had found the claimant not at MMI, the ALJ

turned to the opinion of a treating physician when determining an

MMI date for the claimant. For example, in both Solis and Nixon, a

treating physician had placed the claimant at MMI; the claimant

challenged that finding by requesting a DIME; the DIME determined

the claimant was not at MMI; but the ALJ ruled the DIME had been

overcome and adopted the MMI date originally recommended by the

ATP. See Nixon, 2011 WL 5234800, at *1; Solis, 2009 WL 1674886,

at *1. York followed a different procedural path, but ultimately in

that case, too, the ALJ adopted an MMI date that was precisely six

weeks post-surgery, which adhered to the treating surgeon’s

11
opinion that claimant should reach MMI by that date. York, 2016

WL 2619516, at *1-2.

¶ 15 These scenarios highlight a factor common to cases in which

MMI could be decided as a matter of fact: in each instance, a

conflict existed between the DIME and the ATP, which required

resolution by the finder of fact. Indeed, the rule authorizing ALJs to

decide MMI as a matter of fact grew out of a case of conflicting MMI

determinations by different ATPs. See, e.g., Blue Mesa Forest v.

Lopez, 928 P.2d 831, 833 (Colo. App. 1996) (“[R]etraction of the

authorized treating physician’s first opinion merely presents a

question of fact for the ALJ concerning whether claimant was at

MMI on March 9 or December 1, 1994.”); see also Kilpatrick v.

Indus. Claim Appeals Office, 2015 COA 30, ¶ 39 (MMI determination

was within ALJ’s discretion where ATP had signed statement

retracting his earlier MMI decision). In Blue Mesa and Kilpatrick, as

in those Panel cases in which the DIME and the ATP disagreed on

MMI, there was a conflict in medical opinions between treaters or

between a treater and a DIME physician that the ALJ had to resolve

as a matter of fact. But in this case, there is no conflict between

the ATP’s and DIME physician’s opinions; both agree that claimant

12
had not reached MMI. Consequently, there was no conflict for the

ALJ to resolve.

¶ 16 We know of no case, and employer has not pointed us to any,

in which the only physician placing the claimant at MMI was a

doctor selected by the employer pursuant to section 8-42-

107(8)(b)(II)(D). To the contrary, in all the cases we have reviewed,

as well as each case cited by the parties, either an ATP or the DIME

had placed the claimant at MMI. But those circumstances are

absent here, distinguishing this case from those in which MMI

became a fact question for the ALJ to decide.

¶ 17 In our view, the situation resembles the supreme court case of

Williams v. Kunau, 147 P.3d 33 (Colo. 2006), which traveled a

different procedural path but evoked concerns similar to those

claimant expresses. In Williams, a DIME physician disagreed with

an ATP’s opinion that the claimant had reached MMI. Because the

DIME physician opined that the claimant had not yet reached MMI,

the DIME procedure remained open. The claimant received more

treatment, and was eventually placed at MMI a second time by the

ATP. Id. at 34-35. Based on the ATP’s second MMI determination,

the employer filed a final admission of liability (FAL). Id. The

13
supreme court held that the employer prematurely filed its FAL;,

the employer could not file an FAL until the DIME physician had

re-examined the claimant and made an independent determination

that the claimant had reached MMI. Citing a Panel interpretive

bulletin, the supreme court observed that “[h]istorically, the

Division’s policy has been that, after an independent medical

examiner determines the employee not to be at MMI, the

independent medical examiner must make the final determination

of MMI following additional care from the treating physician.” Id. at

38 (citing Colo. Dep’t of Labor & Emp’t, Interpretive Bulletin 11A:

Follow Up Division Independent Medical Examinations (Mar. 6,

2006), https://perma.cc/H247-YG4D). Having taken the Panel’s

practice into consideration, the supreme court summarized its new

rule as follows:

We hold that, once a claimant has successfully
challenged a finding of MMI through the DIME
process, the DIME process remains open and,
when the treating physician makes a second
finding of MMI, the employer or insurer may
not file an FAL to close the case prior to
returning the claimant to the independent
medical examiner for a follow-up examination
and determination of MMI.

Id. at 36.

14
¶ 18 Similarly, in this case, the DIME did not find claimant to be at

MMI. Unlike in Williams, though, the ALJ did not return claimant

for additional treatment and a follow-up DIME. Instead, the ALJ

was persuaded by the opinions of employer’s retained physician to

place claimant at MMI. In our view, this course runs counter to the

statute and the Panel’s historical practice of having the DIME

physician who found a claimant was not at MMI later make the

MMI determination. We therefore conclude claimant should have

been returned to the ATP for continued treatment after the DIME

physician found she was not at MMI.

¶ 19 We recognize that our 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. However, we note that, prior to the addition of section 8-42-

107(8)(b)(II) in 1996, employers were at the mercy of ATPs and had

no recourse to challenge perpetual care; treatment simply

continued until an ATP placed the claimant at MMI. See 1996 Colo.

Sess. Laws at 456-57. We conclude simply that where the DIME

and the ATP agree that a claimant is not at MMI, treatment should

continue until either the DIME or the ATP places the claimant at

15
MMI, which comports with the statute and the Panel’s historical

practices. We note, too, that nothing in our opinion prohibits an

employer from re-invoking the twenty-four-month DIME process at

an appropriate time in the future. Thus, our decision will leave

employers avenues to challenge treatment that seems interminable.

III. Substantial Evidence

¶ 20 Having concluded that the ALJ and the Panel misinterpreted

section 8-42-107(8)(b)(II), we need not address whether substantial

evidence supported the ALJ’s findings of fact.

IV. Conclusion

¶ 21 The order is set aside and the case remanded to the Panel with

directions to return it to the ALJ to enter an order consistent with

this opinion.

JUDGE WEBB and JUDGE HARRIS concur.

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