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Brownson-Rausin v. Industrial Claim Appeals Office of the State of Colorado10/20/2005
ORDER AFFIRMED
Carparelli and Criswell, JJ., concur
In this workers' compensation case brought against Valley View Hospital and its insurer, Colorado Hospital Association Trust (collectively employer), Wendy Brownson-Rausin (claimant) seeks review of a final order of the Industrial Claim Appeals Office (Panel) determining that she was at maximum medical improvement (MMI) on April 5, 1995, and denying her claim for temporary total disability (TTD) benefits after that date. We affirm.
Claimant sustained a compensable back injury in 1991. An authorized treating physician (ATP) found that claimant was at MMI in December 1994, but retracted that opinion in January 1995. The law at the time required, without exception, an ATP's finding of MMI prior to a request for a division-sponsored independent medical examination (DIME). Colo. Sess. Laws 1991, ch. 219, § 8-42-107(8)(b) at 1309; Aren Design, Inc. v. Becerra, 897 P.2d 902 (Colo. App. 1995). Relying on the ATP's 1994 MMI determination, employer requested a DIME on the MMI issue.
The DIME physician determined that claimant reached MMI in April 1995. In a 1996 order, the administrative law judge (ALJ) found that claimant failed to overcome the DIME. However, the Panel remanded for the ALJ to resolve the conflicts between the ATP's two MMI opinions.
In the 1999 order on remand, the ALJ resolved the conflict by finding that the ATP had not placed claimant at MMI. Because the DIME requirements in former § 8-42-107(8)(b) had not been met, the ALJ determined that the "DIME" was not actually a DIME and was therefore "irrelevant." Claimant's TTD benefits were reinstated from October 1994 "and continuing until terminated pursuant to law."
Both the Panel and a division of this court affirmed. Valley View Hosp. v. Indus. Claim Appeals Office, (Colo. App. No. 99CA2190, May 25, 2000)(not published pursuant to C.A.R. 35(f)). In accordance with the division's opinion, employer filed a general admission of liability (GAL) in 2001 admitting for TTD benefits from 1994 and continuing.
During this litigation, the DIME statute was amended to allow the employer or insurer to request a DIME even though an ATP had not determined that the claimant reached MMI. The amended statute allowed a DIME without MMI if at least eighteen months had passed since the date of injury ; the ATP had been requested to, but did not, find the claimant at MMI; and a physician other than the ATP had found MMI. Colo. Sess. Laws 1996, ch. 112, § 8-42-107(8)(b)(II) at 457 (now codified at § 8-42-107(8)(b)(II), C.R.S. 2005, with subsequent amendments not pertinent here).
In accordance with the amended statute, employer gathered the evidence necessary to obtain a DIME without an ATP's finding of MMI. The Division of Workers' Compensation appointed the same physician who had performed the earlier "DIME" to perform a "follow-up" DIME. In 2002, the DIME physician examined claimant and issued a report reiterating his prior opinion that claimant reached MMI in April 1995, and issued a forty-four percent whole person impairment rating. Employer filed a final admission of liability (FAL) in 2002 terminating TTD benefits as of the 1995 MMI date, and claiming an offset against permanent partial disability (PPD) benefits for all TTD benefits paid after that date.
Claimant objected to the FAL and requested a hearing, arguing that the FAL should be struck because it violated principles of collateral estoppel. She asserted that the 2002 FAL sought to redetermine issues of MMI and TTD, which had been conclusively determined by the appellate court in 2000. She also argued that because the ALJ found that the physician
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