W.C. No. 4-376-028Industrial Claim Appeals Office.
August 19, 2002.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which denied her claim for additional medical and temporary disability benefits. The claimant contends the ALJ erred in determining these issues without requiring the claimant to undergo a Division-sponsored independent medical examination (DIME). We affirm.
The respondents admitted liability for a February 26, 1998 injury to the claimant’s left upper extremity which occurred when the claimant was working at a conveyor belt. The claimant was treated conservatively for this condition, and was placed at maximum medical improvement (MMI) on May 21, 1998, after it was determined she failed to comply with treatment recommendations.
At the hearing, the claimant testified she sustained injuries to both upper extremities and her low back on February 25, 1998, when her hands became caught in a “rotating” machine. In June 1998, she underwent surgery by Dr. Turner to treat a degenerative condition in her low back. The claimant sought compensation for medical treatment and temporary disability caused by the back condition.
Prior to the commencement of the hearing, the claimant argued the ALJ could not proceed to adjudicate the issues without requiring the claimant to undergo a DIME. The claimant reasoned that the issue of whether the back condition was caused by the industrial injury is inherent in determining MMI and permanent impairment. However, the ALJ denied the request for a continuance concluding that the issues for determination did not require a DIME and that permanent partial disability was not before him. (Procedural Orders, February 5, 2001).
On April 12, 2001, the ALJ entered an order denying the claim for temporary disability and medical benefits. The ALJ concluded the claimant failed to prove by a preponderance of the evidence that she injured both upper extremities and her low back on February 25. (Conclusion of Law 8). The ALJ found the claimant’s testimony concerning the injuries and the circumstances surrounding the alleged February 25 accident was internally inconsistent, contradicted by the credible testimony of other witnesses, and not consistent with the history she gave to several medical providers in the days and months following the alleged injury.
On review, the claimant argues the ALJ erred in determining the issue of “causation” without requiring the claimant to undergo a DIME. Under the circumstances of this case, we perceive no error.
Generally, the opinion of the treating physician concerning when the claimant reaches MMI is binding unless a party disputes that determination by seeking a DIME. If a party challenges the treating physician’s determination of MMI by seeking a DIME, the ALJ lacks jurisdiction to consider the issue until the DIME physician’s finding is filed. Section 8-42-107(8)(b)(I) and(III), C.R.S. 2001; Magnetic Engineering, Inc., v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000); Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995). Because MMI inherently involves a determination of whether a particular condition warranting treatment is causally related to the industrial injury, a DIME physician’s finding on that issue has a presumptive effect. Cordova v. Industrial Claim Appeals Office,
___ P.3d ___ (Colo.App. No. 01CA0852, February 28, 2002). The same principles apply when determining whether a particular impairment is causally related to the industrial injury for purposes of §8-42-107(8)(c), C.R.S. 2001. See Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590
(Colo.App. 1998).
However, no DIME is required when the issue is whether or not the claimant sustained an injury proximately caused by an injury arising out of and in the course of employment for purposes of § 8-41-301(1)(c), C.R.S. 2001. To the contrary, that question is a “threshold” issue which the claimant must prove by a preponderance of the evidence. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000) (DIME’s opinion that claimant sustained impairment as a result of injury-related vocal cord impairment not entitled to presumptive effect with respect to the threshold issue of whether claimant’s injury was physical or a non-compensable psychological condition). Similarly, no DIME is required to determine which of two injuries is the cause of the need for treatment provided the ALJ does not presume to decide the issue of MMI without a DIME. See Ward v. Sievers Instruments, W.C. No. 4-301-616 (August 17, 1998).
Here, the claimant was not seeking to prove the extent of the admitted injury of February 26. If she had been, the argument in favor of requiring a DIME to resolve the causation issue might be persuasive. Instead, the claimant was sought to prove an entirely different injury which allegedly occurred on February 25, and involved both upper extremities and the low back. The claimant had the initial burden of proof to establish the occurrence of this injury, and no DIME was required to determine the issue. Faulkner v. Industrial Claim Appeals Office, supra. Thus, there was no error in the ALJ’s order.
Neither is this a case in which the claimant had a due process right to the DIME. Unlike the situation in Delaney v. Industrial Claim Appeals Office, 30 P.3d 691 (Colo.App. 2000), the claimant was not forced to a hearing on issues defined by the respondents, nor is there any showing the DIME physician’s opinion might have been outcome determinative. Indeed, the claimant was examined by numerous physicians. Moreover, the central issue was not the medical opinions but the claimant’s own credibility concerning the events alleged to have occurred on February 25.
In light of this determination, we need not consider the claimant’s representations concerning the results of the DIME examination which was conducted.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 12, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed August 19, 2002 to the following parties:
Maria C. Alvarado, 3636 Latham Court, Evans, CO 80620 Corestaff Services, Inc., 800 8th Ave., #131, Greeley, CO 80631-1128
Hartford Casualty Insurance Co., c/o Nhu Miller, ITT Specialty Risk Services, Inc., P. O. Box 221700, Denver, CO 80222
Rebecca Greben, IME Coordinator, Tower 2, #610, Division of Workers’ Compensation — Interagency Mail
Jack Taussig, Esq., 1919 14th St., #805, Boulder, CO 80302 (For Claimant)
Tama L. Levine, Esq., 999 18th St., #1755, Denver, CO 80202 (For Respondents)
By: A. Hurtado