Denied April 4, 2019.
Claim Appeals Office of the State of Colorado WC No.
Fraley, PLLC, Roger Fraley, Jr., Centennial, Colorado, for
Appearance for Respondent Industrial Claim Appeals Office.
Simons Smith & Stern, Michele Stark Carey, Denver, Colorado,
for Respondents Destination Maternity and Liberty Mutual
This workers' compensation action requires us to address
whether a claimant can be placed at maximum medical
improvement (MMI) by an administrative law judge (ALJ)
despite the lack of an MMI finding from any treating
physician or the physician conducting the division-sponsored
independent medical examination (DIME). We conclude that an
ALJ cannot determine MMI when neither a treating physician
nor a DIME physician has placed the injured worker at MMI. We
therefore set aside the order of the Industrial Claim Appeals
Office (Panel) upholding the ALJ's order, and we remand
the matter to the Panel to return the case to the ALJ to
enter an order consistent with this opinion.
Claimant, Susan Burren, worked for employer, Destination
Maternity, in a store called A Pea in the Pod. On September
25 and 26, 2014, she sustained admitted work-related injuries
to her arm and shoulder. Several physicians treated her for
her injuries well into 2017. Despite several years of
treatment, claimant complained that her pain continued to
worsen. She testified that none of the treatment she received
improved her condition. None of claimant's treating
physicians placed her at MMI.
In June 2015, employer retained Dr. Allison Fall to perform a
medical examination of claimant. Dr. Fall opined that
claimant was not at MMI at that time, but anticipated that
claimant would reach MMI "in three to six months."
Dr. Fall examined claimant a second time in August 2016. In
her ensuing report, Dr. Fall set forth her impressions of
claimant's condition as follows:
1. Work-related right ulnar neuritis without current
complaints, essentially resolved.
2. Right upper trapezius and levator scapular myofascial
pain with subjective complaints outweighing objective
3. Somatoform or conversion disorder, ruled out as
also opined that claimant had reached MMI with "no
permanent impairment for subjective complaints of upper
quadrant myofascial pain."
Several weeks after receiving Dr. Fall's opinion,
employer requested a twenty-four-month DIME pursuant to
section 8-42-107(8)(b)(II), C.R.S. 2018, because no treating
physician had placed claimant at MMI in the two years that
had elapsed since her work-related injury. Dr. Clarence Henke
was selected to perform the DIME. He examined claimant and
opined that claimant suffered from right ulnar nerve
compression, right median nerve compression at wrist ...