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Berg v. Industrial Claim Appeals Office of the State of Colorado8/11/2005
ORDER SET ASIDE AND CASE REMANDED WITH DIRECTIONS
Taubman and Kapelke, JJ., concur
In this workers' compensation proceeding, Randy Berg (claimant) seeks review of the final order issued by the Industrial Claim Appeals Office (Panel) which denied his petition to reopen. We set the order aside and remand with directions.
I.
In January 2002, claimant sustained a compensable back injury. His treating physician placed him at maximum medical improvement (MMI) on October 23, 2002, with a ten percent whole person impairment rating. The treating physician reported that claimant had experienced little, if any, improvement from epidural steroid and facet joint injections; opined that he was not a candidate for surgery because he had no significant radicular symptoms and multilevel involvement; noted claimant's complaints of continuing pain; and recommended only limited maintenance care and an active exercise program with proper posture and body mechanics.
United Parcel Services and its insurer, Liberty Mutual Group (collectively employer), requested a division-sponsored independent medical examination (DIME). In a February 4, 2003, report, the DIME physician agreed with the date of MMI, but assigned a whole person impairment rating of twelve percent. The DIME physician reviewed claimant's medical records and noted that he had received two opinions recommending against surgery and that claimant had obtained a second opinion on his own from a neurosurgeon who recommended surgical exploration. The DIME physician, however, did not recommend surgery based upon the lack of neurological findings and the localized myofascial pain claimant had been experiencing.
On March 7, 2003, employer filed a final admission of liability (FAL) based upon the DIME report. On March 12, 2003, claimant underwent surgery performed by his own surgeon.
The following day, claimant's attorney filed a response to the FAL accepting the permanent medical impairment rating assigned by the DIME physician, but contesting the remainder of the FAL. Claimant did not file an application for hearing within thirty days of employer's FAL. Claimant filed a petition to reopen the claim on May 21, 2003, alleging that claimant's treating physicians and the DIME physician were mistaken as to the actual cause of his back symptoms, which was not discovered until the surgery. The petition to reopen was based upon a May 2003 letter from the surgeon stating that during surgery he found a prominent disc herniation causing compression, which was the likely cause of the right- and left-side radiculopathy and back pain experienced by claimant.
Following an evidentiary hearing, the administrative law judge (ALJ) granted claimant's petition to reopen, awarded additional temporary disability and medical benefits, and authorized claimant to change physicians. The ALJ found that claimant proved his treating physician mistakenly believed he was at MMI on October 23, 2002, that no further treatment would cure or relieve him of the effects of the industrial injury, and that claimant's medical providers were under a "mutual mistake of fact" about the nature of claimant's condition.
On review, the Panel set aside the ALJ's order. The Panel found that claimant was, in effect, challenging the FAL and the DIME physician's determination of MMI, but that he had not followed the requirements of § 8-43-203(2)(b)(II), C.R.S. 2004. Therefore, the Panel determined that claimant was precluded from circumventing the conclusive effect of the DIME by seeking to reopen the MMI determination based upon mistake of fact under § 8-43-303(1), C.R.S. 2004.
II.
Cl
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