AUGUST

2005

Berg v. ICAO, 04CA1130 (Colo. App., Aug. 11, 2005):  Claimant sustained a compensable back injury and Respondents requested a DIME after Claimant was placed at maximum medical improvement.  The DIME physician issued an impairment rating and did not recommend surgery.

   Respondents filed a Final Admission (FA) based on the DIME.  Five days later, Claimant underwent surgery performed by his own physician.  Claimant did not request a hearing within 30 days of the FA and the claim was closed.

   Two months after the claim was closed, Claimant filed a petition to reopen and alleged the treating physician and DIME physician were “mistaken” as to the cause of Claimant’s back symptoms.  Claimant’s physician opined that Claimant’s symptoms were caused by a disc herniation he discovered during surgery.

      At hearing, the ALJ agreed with Claimant and reopened the claim.  Claimant was awarded additional benefits.

   The Industrial Claim Appeals Office (ICAO) set aside the ALJ’s order and found Claimant was precluded from circumventing the proper procedures to challenge a DIME.  

   The Court of Appeals (CA) set aside the ICAO, and reinstated the ALJ order, find-ing an uncontested DIME may be reopened and overcome based on a “mistake of fact.”  However, the CA acknowledged allowing a Claimant to wait until a claim was closed to challenge a DIME would allow a Claimant to contest the DIME with a diminished burden of proof.  

   If Claimant properly contested a DIME before a claim was closed, Claimant would be required to overcome the DIME by clear and convincing evidence.  However,

if Claimant waited until the claim was closed to contest a DIME based on a petition to reopen, Claimant would only need a preponderance of evidence. 

   The CA held if a Claimant filed a petition to reopen in an attempt to circumvent the DIME process and gain the advantage of a lower burden of proof, the ALJ would have authority to deny it.

   In this case, the CA found it was not until

after Claimant’s surgery that the “true” extent of Claimant’s symptoms became known.

      Note:  Although an ALJ will have discretion to deny improper attacks on a DIME under a “mistake of fact” petition to reopen, Respondents should be aware of Claimants attempting to circumvent the DIME process by waiting until the claim is closed to contest a DIME.

  

Claimant Allowed to Contest DIME with Lower Burden of Proof

Practice Pointer

How To Decrease Workers’ Compensation Costs

 By Richard A. Bovarnick

 

 

   Have you ever been in a meeting where the topic of cost savings is discussed?  Have you ever been asked how can we decrease our worker’s compensation costs?  The answer is timely reporting, recording, documenting and communicating to your risk manager, third party administrator, insurance adjuster and/or your former insurance adjuster the specifics of the claim. 

   The sooner the pertinent information is transmitted the more effective the investigation.  The sooner the claim is reported the quicker appropriate healthcare can be provided.  The sooner appropriate healthcare is provided the faster the employee can be brought back to work decreasing time loss payments.  The sooner the employee can return to work the faster they heal.  The sooner the employee heals the less impairment they sustain. 

   In a recent case the employee reported the incident to the employer but the em-ployer neglected to advise the third party administrator.  Months went by without proper investigation, appropriate health-care or return to work.  A small claim geo-

metrically progressed into a six figure claim.  The moral to the story; timely reporting would have saved tremendously on the recalculated mod rating; not to mention the amount the carrier ended up paying in healthcare and indemnity.

   In another case the employer had changed carriers during the pendency of one claim.  While claim one was ongoing the employee had claim two covered by the new carrier.  Unfortunately, the employer neglected to notify carrier one of carrier two’s claims.  Instead of working together the two carriers duplicated some of the work.  The moral to the story; timely notice of subsequent claims to your carrier/third party administrator will decrease the costs of the claims.

   Keeping worker’s compensation costs down is of paramount importance in a day of rising costs.  Remember the division of worker’s compensation and the office of administrative courts interpret the law liberally to effectuate the “beneficent” purposes of the act i.e. give the injured workers as much as they can.  Let’s not help them effectuate their goal.