Morris v. Industrial Claim Appeals Office

2020 COA 129. No. 19CA1039. Workers’ Compensation—Division Sponsored Independent Medical Examination—Whole Person Impairment Rating—Issue Preclusion.

August 27, 2020

Claimant sustained an admitted work-related injury when he slipped on scaffolding and sprained his left ankle. Several months later, he reported pain in his lower back. Claimant’s treating physician placed him at maximum medical improvement (MMI) with no impairment. Claimant disagreed with the determination that he had no permanent impairment and requested a division sponsored independent medical examination (DIME). The DIME physician, Dr. Gray, agreed with the treating physician that claimant reached MMI but assigned claimant a 14% impairment rating for his left lower extremity and noted that this could be converted to a 6% impairment of the whole person. Dr. Gray also recommended that claimant receive ongoing maintenance medical care. Claimant’s employer and its insurer (collectively, employer) filed a final admission of liability (FAL) admitting to the scheduled 14% permanent impairment of claimant’s left leg but not the 6% whole person impairment rating. Claimant objected to the FAL. An administrative law judge (ALJ) thereafter denied and dismissed claimant’s request for whole person permanent partial disability (PPD) and disfigurement benefits. A panel of the Industrial Claim Appeals Office (Panel) upheld the ALJ’s decision.

As an initial matter, employer contended that claimant’s argument on PPD benefits was barred by issue preclusion. Because claimant’s argument here deviates slightly from the argument he asserted previously, it is not barred by issue preclusion.

On the merits, claimant contended that employer was bound by the DIME physician’s whole person impairment rating because employer did not apply for a hearing contesting it. A DIME’s findings and determinations as contemplated by CRS § 8-42-107.2(4)(c) do not include a DIME’s recommendation to convert a scheduled impairment to a whole person impairment. Further, because a DIME opinion does not carry presumptive weight on the conversion of a scheduled impairment to a whole person impairment rating, employer did not have to apply for a hearing to challenge the conversion. Accordingly, employer was not bound by the DIME’s suggestion that claimant’s impairment rating be converted from 14% of the lower extremity to 6% of the whole person even though it filed an FAL admitting to the scheduled impairment and did not also file an application for a hearing contesting the conversion recommendation. And because substantial evidence supported the ALJ’s finding that claimant’s work-related injury was limited to his left lower extremity and did not extend to his back, the Panel properly upheld the ALJ’s determination that claimant sustained a scheduled impairment under CRS § 8-42-107(2).

The order was affirmed.

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