W.C. No. 4-401-197Industrial Claim Appeals Office.
March 31, 2004
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) that denied the claimant’s request for a second Division-sponsored independent medical examination (DIME). We affirm.
The claimant requested a DIME and suggested that one of three specific doctors, including Dr. Griffis, be appointed to perform the DIME. The respondents agreed to the appointment of Dr. Griffis and therefore, Dr. Griffis was appointed to perform the DIME. In the DIME report dated April 22, 2003, Dr. Griffis noted that he previously treated the claimant, but that the Division of Workers’ Compensation (Division) told that him he could perform the DIME because the parties had agreed to his appointment. Dr. Griffis assigned zero impairment for the industrial injury.
Upon receipt of the DIME report, the claimant’s attorney moved to strike the report and requested a new DIME. The claimant alleged that the failure of respondents’ counsel to remind claimant’s attorney of Dr. Griffis’ previous role as a treating physician deprived the claimant of the opportunity to timely object to the appointment of Dr. Griffis. See
Rules of Procedure, Part XIV(L)(2)(h), 7 Code Colo. Reg. 1101-3 at 51 (2003). The claimant also asserted that her attorney should have been included in all contact between Dr. Griffis and the Division, which would refreshed her attorney’s memory and resulted in a timely objection to Dr. Griffis’ appointment as the DIME physician.
The ALJ determined the respondents’ counsel had no duty to remind claimant’s counsel that Dr. Griffis was an authorized treating physician. Further, the ALJ determined the claimant waived her objection to the appointment of Dr. Griffis by waiting until she received the DIME physician’s adverse rating to raise the objection. Based on these findings, the ALJ denied the claimant’s request for a new DIME and determined the DIME physician’s zero rating was binding on the parties.
On review, the claimant contends the ex-parte communication between the Division and Dr. Griffis rendered the DIME invalid. The claimant equates the role of the DIME physician with the fact-finder in a jury trial. We perceive no basis for disturbing the ALJ’s order.
In a workers’ compensation claim, the ALJ is the ultimate fact finder on the issue of permanent impairment. Whiteside v. Smith 67 P.3d 1240
(Colo. 2003); Mosley v. Industrial Claim Appeals Office, 78 P.3d 1150
(Colo.App. 2003). In contrast, the DIME physician merely offers an expert medical opinion on the issue of permanent impairment, which the ALJ may find is overcome by other evidence. Wackenhut Corporation v. Industrial Claim Appeals Office, 17 P.3d 202 (Colo.App. 2000); Adams v. Sunburst Properties and Financial Corp., W.C. No. 4-261-472 (September 24, 1996). Thus, we reject the claimant’s contention that communication between the Division and the DIME physician is the equivalent of ex-parte communication with the “finder of fact” in a civil trial.
Further, the Division is the agency responsible for administration of the DIME program. Lobato v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA1145, June 5, 2003) `Colorado Dept. of Labor and Employment v. Esser, 30 P.3d 189 (Colo 2001) Within her statutory authority, the Director of the Division has adopted rules and procedures to govern the program. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002); Monfort Transportation v. Industrial Claim Appeals Office, 942 P.2d 1358 (Colo.App. 1997). Those rules preclude contact between the parties and the DIME physician, but allow contact between the Division and the DIME physician as necessary to arrange for the completion of the DIME. See Rule XIV(L)(2)(k). The claimant’s arguments do not persuade us that the contact between the Division and Dr. Griffis exceeded the ministerial function of the Division, so as to implicate the claimant’s due process rights.
Finally, the rules provide that there shall be “only one” DIME rating per case. See Rule XIV(L)(5) at 5 ; see also Director of the Division of Workers’ Compensation Interpretative Bulletin, February 24, 2004; Perales v. Napier Enterprises Inc., W.C. No. 4-516-705 (December 12, 2003). Consequently, the ALJ did not err in denying the request for a new DIME.
IT IS THEREFORE ORDERED that the ALJ October 10, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Dona Halsey
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. 2003. 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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on March 31, 2004 by A. Hurtado.
Cynthia Woolsey Fooshee, P. O. Box 465, Victor, CO 80860-0465
Pikes Peak Rock Shop, Inc., P. O. Box 447, Cascade, CO 80809
Donelle Hewett, Republic Indemnity Company of America, P. O. Box 15388, Phoenix, AZ 85060
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Eric J. Pollart, Esq., 5600 S. Quebec St., #130D, Greenwood Village, CO 80111 (For Respondents)