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Brownson-Rausin v. Industrial Claim Appeals Office of the State of Colorado10/20/2005
a FAL in 2002, which terminated her TTD benefits effective April 1995, employer impermissibly withdrew the 2001 GAL, which had reinstated TTD benefits effective April 1995. She argues that a GAL can be withdrawn only in certain circumstances which are not present here. We perceive no error.
Claimant's assertion notwithstanding, employer's 2002 FAL did not constitute an attempt to "withdraw" the GAL. See Johnson v. Indus. Comm'n, 761 P.2d 1140 (Colo. 1988)(rejecting argument that retroactive application of the offset was equivalent to retroactive withdrawal or revocation of an insurer's admission of liability); cf. HLJ Mgmt. Group, Inc. v. Kim, 804 P.2d 250 (Colo. App. 1990)(discussing requirements for withdrawal of admissions). The GAL was filed to implement the holding in the appellate opinion that determination of MMI was premature because no ATP had placed claimant at MMI. In contrast, the 2002 FAL was filed after the DIME physician properly determined that claimant reached MMI in April 1995.
Furthermore, it was not improper for employer to claim an offset of overpaid TTD benefits against the award of PPD benefits. See Dep't of Labor & Employment Rule IV(G)(2) (insurer shall receive credit against permanent disability benefits for any temporary disability benefits paid beyond the date of MMI); Am. Comp. Ins. Co. v. McBride, supra. Such offsets do not abrogate admissions or discontinue benefits, but instead adjust the amount of benefits accurately to reflect the correct amount of benefits to which a claimant is entitled. Johnson v. Indus. Comm'n, supra; Jiminez v. Indus. Claim Appeals Office, 51 P.3d 1090 (Colo. App. 2002)(retroactive assertion of an offset is not tantamount to an improper retroactive correction of a mistaken admission).
IV.
Claimant's final contention is that the second ALJ erred in finding that she failed to overcome by clear and convincing evidence the DIME physician's finding that she reached MMI in 1995. She asserts that she cannot be at MMI until certain diagnostic procedures are complete, particularly those recommended by her ATP relating to Complex Regional Pain Syndrome (CRPS). She argues that employer obstructed her obtaining these diagnostic procedures until 2004, when employer's IME physician requested some of them. We perceive no error.
Pursuant to ยง 8-42-107(8)(b)(III), C.R.S. 2005, a DIME physician's finding of MMI is binding on the parties unless overcome by clear and convincing evidence. Because an MMI determination requires the DIME physician to ascertain the cause of the claimant's medical conditions, the DIME physician's determination of causation must also be overcome by clear and convincing evidence. Cordova v. Indus. Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002).
MMI exists when "any medically determinable physical or mental impairment as a result of injury has become stable and when no further treatment is reasonably expected to improve the condition." Section 8-40-201(11.5), C.R.S. 2005; see Whiteside v. Smith, supra. Moreover, " he requirement for future medical maintenance which will not significantly improve the condition or the possibility of improvement or deterioration resulting from the passage of time shall not affect a finding of ." Section 8-40-201(11.5).
The ALJ made exhaustive findings of fact and found that the DIME physician's opinion that claimant reached MMI is supported by other medical opinions. In accordance with the DIME physician's opinion, the ALJ also found that claimant does not have CRPS as suggested by the ATP. Furthermore, the ALJ awarded ongoing medical benefits after MMI, which included a number of independent medical evaluations and diagnostic
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