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A PUBLICATION BY THE LAW FIRM OF

Clifton, Mueller & Bovarnick, P.C.

ATTORNEYS AT LAW
Text Box: CURRENT EVENTS, ARTICLES, AND SUMMARIES OF RECENT CASES AND LEGISLATION IN THE AREAS OF WORKERS’ COMPENSATION, LIABILITY, INSURANCE, AND EMPLOYMENT LAW

2007

July
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FOLLOW-UP DIMES REVISITED BY ICAO

A previous Defense Talk article discussed the Colorado Supreme Court’s holding in Williams v. Kunau, 147 P.3d 33 (Colo. 2006), requiring employers to return a claimant to the Division IME physician for follow-up when the DIME previously found the claimant was not at MMI, the claimant returned to the authorized treating physician for treatment, and was again placed at MMI.  In a recent decision cited as Davila v. General Ceilings & Partitions, W.C. No. 4-531-067 (July 17, 2006), the Industrial Claim Appeals Office held that a follow-up DIME is not always necessary and, in some situations, the Respondent may file a Final Admission of Liability after the authorized treating physician returns the claimant to MMI.

In Davila, the claimant sustained an admit-ted low back injury in a work-related acci-dent.  The treating physician placed him at MMI without impairment.  The claimant timely requested a DIME.  The DIME phy-sician’s impression was not at MMI.  The parties stipulated to a new treating physi-cian who subsequently placed the claimant at MMI.  This treating physician assigned a 17 percent whole person impairment for the back injury and a 6 percent mental impairment rating.  The Respondents filed a Final Admission of Liability consistent with this rating, without returning the claimant to the Division Examiner for a follow-up DIME.  The claimant did not object to the Final Admission.  However, he subsequently petitioned to reopen his

claim, arguing, in part, that the Final Admission of Liability was “void” for Respondents’ failure to return the claimant for a follow-up DIME pursuant to Williams.  ICAO held that Williams did not apply to situations where the claimant fails to object to the Final Admission of Liability even when the Respondents file it based on the report of the treating physician after a Division Examiner issues an opinion of “not at MMI.”

Williams specifically holds that “when the treating physician again determines the employee to be at MMI, the parties may stipulate to that fact and the employer or insurer may move directly to filing the Final Admission instead of returning the

Section 8-42-105(2)(a), C.R.S. , provides that if respondents deny liability for a claim that the claimant may request an expedited hearing on the issue of compen-sability, provided the application is filed within 45 days of the date of mailing of the notice of contest. The hearing shall then be held within 40 days of the date of the application. Although the statute goes on to provide that the time schedule for such an expedited hearing is subject to extension as set forth in § 8-43-209, the provision does not mean that a motion to extend will be automatically extended. Section 8-43-209 provides that one extension of time of no more than 60 days may be granted by an administrative law judge upon written request and for good cause shown in the

EXPEDITED HEARINGS — RUSH TO JUDGMENT?

By Richard A. Bovarnick

 
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case where compensability is contested.

However, AU Stuber thinks that granting such a motion would gut the legislative intent of the expedited hearing process because the hearing would not take place within 100 days from the date of the application. AU Stuber pointed to the last sentence of this statutory section which states, “such extensions may be granted only when the interest of all parties will be served.”

If you receive an application for hearing within 45 days after the date of mailing the notice of contest, recognize that the Direc-tor shall set the case for hearing within 45 days of the date of the application. This procedure coupled with the re-introduction of the “20 day rule” (now statutorily

enacted at 8-43-2 10) which statute requires that all relevant medical records, vocational reports, expert witness reports and employer records be exchanged with all of the parties at least 20 days prior to the hearing date, or they may not be accepted as evidence, severely handcuffs your attorney’s ability to prepare and defend respondents at hearing.

We recommend that as soon as you receive the application for expedited hearing you immediately send it and the file to your attorney to allow time for submitting discovery, obtaining healthcare and employment records, scheduling independent medical examinations, and scheduling the depositions or hearing appearances of lay witnesses and experts.