Peitz v. Industrial Claim Appeals Office.
2024 COA 102. No. 24CA0250. Workers’ Compensation Benefits—Workers’ Compensation Rule of Procedure 11-5—Division Independent Medical Examination—Scope of Evaluation—Issue Preclusion.
September 12, 2024
Peitz suffered an admitted work-related injury to his lower back while working as a mechanic for the Board of Water Works of Pueblo (board). He was initially diagnosed with lower back issues and received injections, massage, and chiropractic care. The board and its insurer, Travelers Casualty & Surety Co. (jointly, respondents), subsequently requested an independent medical exam (IME). At that time, Peitz’s complaints included right hip pain, with a burning sensation in his groin. The IME doctor opined that the hip issue should be addressed before Peitz received further treatment for his spine. Peitz later received a successful bilateral hip replacement but continued to complain of lower back pain, for which he had a lumbar fusion. Peitz filed an Application for Hearing (AFH) seeking medical benefits for treatment related to his hips and groin. An administrative law judge (ALJ) relied on the IME physician’s opinion that Peitz’s left groin pain was likely idiopathic or related to the hip replacement and was not likely related to the back surgery. The ALJ found that Peitz had failed to prove that his hip or groin symptoms were related to his work injury and denied Peitz benefits for the hips and groin treatment but reserved on all other issues. Peitz then returned to his authorized treating physician, who determined he was at maximum medical improvement (MMI) and had a 30% impairment rating. Respondents then applied for a division independent medical examination (DIME), checking the boxes for spine/lumbar as the body part to be evaluated. Dr. Ogden conducted the DIME and diagnosed Peitz with chronic pain disorder, axial low back pain, and left hip flexion weakness. Dr. Ogden opined that Peitz was not at MMI because his chronic pain disorder and left hip pain still needed to be addressed, and he stated that to reach MMI, Peitz would need treatment for the chronic pain disorder, including psychosocial evaluations and cognitive behavioral therapy. He assigned a whole person impairment rating of 27%. Respondents then filed an AFH on May 12, 2023, checking the box for “other issues,” which they listed as “Overcome DIME, not at MMI, compensable components.” Respondents moved for summary judgment, asserting that they did not ask for Peitz’s hip to be evaluated during the DIME, so under Workers’ Compensation Rule of Procedure (Rule) 11-5, Dr. Ogden could not address that body part. The ALJ found that respondents overcame the DIME determination that Peitz was not at MMI but failed to overcome the impairment rating.
Peitz petitioned the Industrial Claim Appeals Office (panel) to review the ALJ’s order, arguing that the ALJ erred by concluding that Dr. Ogden’s DIME should have been limited to the lumbar spine because that was the only body part respondents had selected on the DIME form. The panel agreed with Peitz that Rule 11-5 does not prevent a DIME physician from evaluating all body parts in determining MMI. But the panel also concluded that the ALJ did not err by rejecting the DIME physician’s opinion on MMI as to the hips and groin because of the ALJ’s earlier final adjudication that Peitz’s hip and groin problems were unrelated to his work injury. The panel affirmed the ALJ’s determination that Peitz had reached MMI for all work-related conditions.
On appeal, the court of appeals first considered the parties’ arguments on whether Rule 11-5 precludes a DIME physician from considering body parts not designated on the DIME form when assessing whether a claimant is at MMI. Rule 11-5 establishes a fee schedule for physicians performing a DIME that is based primarily on the designated body parts and date of injury on the DIME application. But the applicable statute and rules do not prohibit a DIME physician from addressing all relevant body parts when assessing whether a claimant has reached MMI. Therefore, the panel properly concluded that Rule 11-5 uses the list of body parts to compute the DIME fee, not to limit the scope of the DIME evaluation.
Peitz contended that the panel erred by not remanding the case back to the ALJ after it ruled in his favor on the DIME’s scope. Respondents asserted that Dr. Ogden was precluded from considering Peitz’s hips, groin, and related psychological issues stemming from chronic pain based on the preclusive effect of the ALJ’s prior order. Here, the ALJ’s first order addressed whether Peitz had proved entitlement to medical benefits for treatment to his groin and hips. This issue was not identical to the issues presented at the second hearing, which were related to overcoming the DIME. Thus, each ALJ order addressed different issues. Further, different burdens of proof applied at the first and second hearings. Therefore, the panel erred by concluding that issue preclusion barred any portion of Dr. Ogden’s determination of MMI.
Peitz also argued that the panel erred by concluding that his need for psychological treatment arose only from his hip and groin pain. Here, the evidence showed that Dr. Ogden felt that the need for psychological treatment was mainly associated with Peitz’s back injury. Accordingly, the panel’s conclusion was clearly erroneous.
The panel’s order was set aside with instructions to remand this case to the ALJ to address the issues raised in respondents’ AFH.