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Town of Ignacio v. Industrial Claim Appeals Office of the State of Colorado11/7/2002
termination that claimant had not reached MMI, based upon the ALJ's resolution of the conflicts in the opinions of the three physicians. We agree, but conclude further proceedings are necessary.
Section 8-42-107(8)(b)(I) & (II), C.R.S. 2002, provide that, if either party disputes an MMI finding by "an authorized physician," a division-sponsored independent medical examination (DIME) may be requested, and the opinion of the DIME physician will carry presumptive effect unless overcome by clear and convincing evidence. See Magnetic Eng'g, Inc. v. Indus. Claim Appeals Office, 5 P.3d 385, 388 (Colo. App. 2000).
A DIME is a prerequisite to any hearing concerning the validity of an authorized treating physician's finding of MMI, and, absent such a DIME, an ALJ lacks jurisdiction to resolve a dispute concerning that determination. See Story v. Indus. Claim Appeals Office, 910 P.2d 80, 82 (Colo. App. 1995).
Here, the issue is whether the specialist qualified as an authorized treating physician, for purposes of § 8-42-107(8)(b)(I) & (II). We conclude that he did.
The specialist was a "treating" physician because he examined claimant not in anticipation of litigation or simply for purposes of providing a disability rating, but to determine whether additional surgery was needed to alleviate claimant's pain. See Miller v. Lake Forest, Inc., 370 So. 2d 647, 651 (La. Ct. App. 1979)(rejecting, in workers' compensation action, argument that bills should be disallowed because physicians did not treat claimant: "While these specialists did not provide a course of treatment, they did examine plaintiff for purposes of medical assistance and not merely in preparation for the . . . trial."); see also Hester v. Ford, 130 So. 203, 206 (Ala. 1930)(medical malpractice action: "In common parlance and often in the law, `treatment' is the broad term covering all the steps taken to effect a cure of the injury or disease; it includes examination and diagnosis as well as application of remedies."); Robinson v. Howard Hall Co., 219 So. 2d 688, 691 (Fla. 1969)(workers' compensation case: "The statute in requiring remedial treatment to be provided an employee contemplates that a preliminary medical examination may be necessary as an incident to such treatment.").
Further, the specialist qualified as an "authorized" treating physician because claimant had been referred to him by another authorized treating physician, namely the physician selected by employer. See Bestway Concrete v. Indus. Claim Appeals Office, 984 P.2d 680, 684 (Colo. App. 1999)(" he designation 'authorized treating physician' includes not only those physicians to whom an employer directly refers a claimant, but also those to whom a claimant is referred by an authorized treating physician.").
Because the specialist was an "authorized treating physician," under the plain language of § 8-42-107(8)(b), C.R.S. 2002, the exclusive method of challenging his MMI opinion was through a DIME. The ALJ could not, then, determine MMI, in derogation of the specialist's opinion, based on the opinions of the other two authorized treating physicians in this case.
In finding to the contrary, the ALJ and the Panel relied upon Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo. App. 1996). However, that case was decided under the former version of § 8-42-107(8)(b), which required a DIME to dispute an MMI determination made by "the authorized treating physician who has provided the primary care" to the employee (emphasis added). In Blue Mesa Forest, a conflict arose when the primary treating physician retracted his opinion of the date of MMI and adopted a later date as determined by a specialist. The division in t
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