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Rosten v. Industrial Claim Appeals Office.

2023 COA 62. No. 22CA1663. Workers’ Compensation—Medical Impairment Benefits—Final Admission of Liability—Division-Sponsored Independent Medical Examination—Records-Only Review—Impeachment Testimony.

June 29, 2023

Rosten was a bus driver for the City of Durango (City). He claimed to have suffered a traumatic brain injury and a neck injury when he slipped and fell on ice in his employer’s parking lot. He received treatment for his injuries from Centura Centers for Occupational Medicine (Centura). In October 2020, Dr. Owens noted that Rosten was at maximum medical improvement (MMI) and that he was tentatively scheduled to receive an impairment rating from Dr. Centi, another Centura doctor who practiced primarily in Colorado Springs and Pueblo. However, in 2020, Centura prohibited its employees from air travel because of the COVID-19 pandemic, and Centura did not have the capability to conduct virtual health visits. As a result, Dr. Centi conducted a records review to obtain the information necessary to complete Rosten’s impairment rating and medical report. In November 2020, Dr. Centi noted that Rosten had been placed at MMI in October 2020, and he assigned a zero percent permanent partial impairment (PPI) rating. On December 7, 2020, the City and its insurer, Colorado Intergovernmental Risk Sharing Agency (collectively, respondents), filed a final admission of liability (FAL), together with Dr. Centi’s report and the workers’ compensation form completed by Dr. Owens. The FAL included forms for filing an objection to the FAL and for requesting a division-sponsored independent medical examination (DIME) if Rosten objected to the MMI date or impairment rating. Rosten filed an objection to the FAL on January 6, 2021, but he did not file a Notice and Proposal with an Application for a DIME (collectively, the DIME application) until seven days later. Respondents moved to strike the DIME application as untimely. An administrative law judge (ALJ) determined that the FAL was valid, and an Industrial Claim Appeals Office panel (panel) affirmed the ALJ’s order.

On appeal, Rosten contended that the panel erred by upholding the ALJ’s determination that the FAL was valid. He maintained that, as a matter of law, an FAL is invalid if the PPI was completed based solely on a record review, without an in-person exam. However, neither the Workers’ Compensation Act of Colorado, the Workers’ Compensation Rules of Procedure, nor the American Medical Association Guides to the Evaluation of Permanent Impairment require the physician doing the impairment rating to conduct an in-person examination on the claimant. While a records-only review is not the preferred method of conducting an impairment rating, any associated deficiencies or limitations are relevant to the report’s persuasiveness, not its validity. Further, the statutory exception allowing for record reviews for out-of-state claimants does not reflect a legislative intent to require in-person exams for in-state claimants. Because the applicable authorities do not mandate that physicians perform an in-person examination to determine a PPI rating when the physician determines the claimant has no impairment, the FAL entered in this case based on Dr. Centi’s report was valid and triggered Rosten’s deadline for filing a timely DIME.

Rosten also argued that because Dr. Centi’s report and the FAL were invalid, the 30-day time limit for pursuing a DIME had yet to be triggered because only the mailing of a valid FAL starts the clock for seeking a DIME. However, as discussed above, the FAL was valid, and if a claimant does not contest the FAL in writing within 30 days of the FAL’s mailing, the case automatically closes. Accordingly, the panel and ALJ properly concluded that Rosten was foreclosed from challenging the MMI and PPI determinations because he did not timely file his DIME application.

Lastly, Rosten contended that the ALJ erred by prohibiting him from presenting impeachment testimony from a doctor who would have challenged the accuracy of Dr. Centi’s MMI determination and PPI rating. Here, the sole issue before the ALJ was whether Rosten showed that the FAL was invalid because it relied on Dr. Centi’s report, so the proposed impeachment testimony was not pertinent. Thus, the panel correctly determined that it had no basis to disturb the ALJ’s order regarding that witness’s testimony.

The order was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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