W.C. No. 4-516-629.Industrial Claim Appeals Office.
February 14, 2005.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which determined the claimant failed to overcome the Division-sponsored independent medical examination (DIME) physician’s finding that there was no compensable psychological impairment. We set aside the ALJ’s order and remand for the entry of a new order.
In September 2001 the claimant suffered an admitted lumbar injury. On January 7, 2003, Dr. Marshall opined the claimant reached MMI for the lumbar injury. The respondents filed a Final Admission of Liability (FAL) which admitted liability for permanent medical impairment to the lumbar spine. The claimant objected to the FAL on April 16 and applied for a DIME on the issues of MMI and permanent impairment. On the DIME application the claimant requested an evaluation of impairment caused by headaches and injuries to the neck and back.
In March 2003, Dr. Marshall prescribed medication for anxiety and depression. On April 20, 2003, Dr. Marshall reported: “As I stated earlier in previous notes, his headaches, depression, anger management and neck pain issues due [sic] not seem to be causally related to his Workers’ Compensation injury.” When the claimant complained the medications were not effective, Dr. Marshall noted that he was not an expert in psychiatry and referred the claimant to Dr. Leopoldt for a psychological evaluation. On May 1, 2003, Dr. Leopoldt, diagnosed a major depressive disorder secondary to the industrial injury.
In July 2003 the DIME physician agreed with Dr. Marshall that the headaches and cervical condition were unrelated to the industrial injury. The DIME physician also agreed the claimant was at MMI and assigned 20 percent impairment to the lumbar spine. The DIME did not explicitly address the claimant’s psychological condition. The respondents filed an amended FAL consistent with the DIME physician’s rating.
The claimant objected to the amended FAL and applied for a hearing to overcome the DIME. The claimant argued the DIME physician erroneously failed to attribute the depression to the industrial injury. The respondents argued the claimant “waived” litigation of whether the depression was work-related by failing to request an evaluation of mental impairment on the April 16 DIME application. Relying on §8-42-107.2(2)(a)(II), C.R.S. 2004, the claimant argues he could not be expected to request a DIME on mental impairment where he was not diagnosed or treated for depression until after requesting the DIME. The ALJ took the matter under advisement and allowed the claimant to present evidence on the issue.
Ultimately, the ALJ agreed with the respondents that the claimant waived the claim of a compensable psychological injury. Further, the ALJ determined the claimant failed to overcome the DIME concerning the cause of the headaches and cervical pain. Therefore, the ALJ approved the amended FAL and denied the claim for additional benefits due to depression.
On review, the claimant argues the ALJ erroneously failed to consider the issue of whether the claimant overcame the DIME physician’s implicit finding that the depression was not work-related. We agree.
Waiver is the intentional relinquishment of a known right. A waiver must be made with full knowledge of the relevant facts, and the conduct should be free from ambiguity and clearly manifest the intention not to assert the right. Johnson v. Industrial Commission, supra; Department of Health v. Donahue, 690 P.2d 243 (Colo. 1984).
Under § 8-42-107(8), C.R.S. 2004, the initial determinations of MMI and medical impairment are to be made by an authorized treating physician. The claimant waives any dispute with the treating physician’s opinions if the claimant does not request a DIME within 30 days of the FAL which admits liability for medical impairment. Lobato v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo. January 18, 2005); Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000).
As argued by the respondents, the Rules of Procedure, Part XIV(L)(3)(a)(3), 7 Code Colo. Reg. 1101-3 at 53 provide that a DIME shall be requested on a form proscribed by the Division of Workers’ Compensation (Division). The Division form requires that the party requesting the DIME designate “the body part(s) or medical conditions to be evaluated, including whether mental impairment shall be evaluated.”
Although a claimant must timely request a DIME to preserve litigation on the issues of MMI, the DIME process does not require the claimant to know the exact nature and severity of his impairment to request a DIME See City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967). To the contrary the purpose of the DIME process is to reduce litigation on the issues of MMI and medical impairment by deferring the determinations of MMI and medical impairment to a neutral, medical expert. Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). Indeed, the claimant’s subjective perception of his condition is not grounds for further treatment once the DIME process has been triggered. See Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995).
Rather, the DIME process contemplates that the DIME physician will evaluate all components of the claimant’s condition and determine the cause of the various medical components. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998). The DIME physician’s findings are then presumed to be correct, subject to the claimant’s right to overcome that presumption by “clear and convincing evidence” to the contrary. Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995).
Furthermore, Rule XIV(L)(3)(b)(2) at 54 also requires the party requesting a DIME to designate the preferred geographic location for the DIME; and list other physicians that have previously evaluated, treated, or are currently treating the claimant. Based on this language, we consider the requirement to list the body parts to be evaluated as designed to aid the Division in determining what medical specialty is needed for the DIME.
Indeed, the respondents’ theory would preclude the ALJ from considering a DIME physician’s opinion that a particular diagnosis was caused by the industrial injury if that condition was not explicitly listed on the DIME application for evaluation. That construction undermines the special weight to be afforded the DIME physician. Therefore, we disagree with the ALJ that the listing of body parts or conditions to be evaluated on a DIME application constitutes a knowing waiver of the claimant’s right to litigate the accuracy of the DIME physician’s opinions on the cause of all other conditions or impairment.
Here, the record contains evidence the claimant was aware of his need for treatment of anxiety and depression prior to April 16, when he applied for a DIME. However, as of April 16, the treating physician declined to associate the symptoms to the industrial injury. Instead, the treating physician acknowledged his lack of expertise and referred the claimant to a psychiatrist for further evaluation and diagnosis. Certainly, the claimant cannot be expected to understand the cause of his psychological condition better than it was understood by Dr. Marshall.
Rather, it was a medical issue for the DIME physician to determine whether the claimant had permanent impairment from depression and whether that impairment was caused by the industrial injury. Insofar as the DIME physician determined there was no such impairment or no impairment related to the injury, the claimant retained the right to a hearing to overcome that determination. Therefore, the ALJ erred insofar as he failed to consider the evidence presented by the claimant to overcome the DIME physician’s implicit findings on the issue of mental impairment.
On remand the ALJ shall determine based on the existing record whether the claimant sustained his burden to overcome the DIME physician’s finding that there was no compensable psychological injury.
In view of our disposition we need not consider the claimant’s remaining arguments. Therefore, we do not consider whether the issue of mental impairment was ripe for adjudication before May 1, 2003, when Dr. Leopoldt issued the diagnosis of depression.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 8, 2004, is a set aside and the matter is remanded to the ALJ for the entry of a new order which determines whether the claimant sustained his burden to overcome the DIME physician’s opinion the claimant is at MMI without permanent mental impairment from the industrial injury.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
Justin W. Gray, Grand Junction, CO, Dunning Construction, Grand Junction, CO, Legal Department, Pinnacol Assurance — Interagency Mail, Luke A. Brennan, Esq., Grand Junction, CO, (For Claimant).
Eliot Wiener, Esq. and T. Paul Krueger, II, Esq., Denver, CO, (For Respondents).