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Burren v. Industrial Claim Appeals Office of State

Court of Appeals of Colorado, Third Division

March 7, 2019

Susan Burren, Petitioner,
v.
Industrial Claim Appeals Office of the State of Colorado, Destination Maternity, and Liberty Mutual Insurance Company, Respondents.

          Industrial Claim Appeals Office of the State of Colorado WC No. 4-962-740

          Irwin Fraley, PLLC, Roger Fraley, Jr., Centennial, Colorado, for Petitioner

          No Appearance for Respondent Industrial Claim Appeals Office

          Ruegsegger Simons Smith & Stern, Michele Stark Carey, Denver, Colorado, for Respondents Destination Maternity and Liberty Mutual Insurance Company

          OPINION

          WELLING JUDGE.

          ¶ 1 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.

         I. Background

         ¶ 2 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.

          ¶ 3 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."

         ¶ 4 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 findings.
3. Somatoform or conversion disorder, ruled out as work-related.

         She also opined that claimant had reached MMI with "no permanent impairment for subjective complaints of upper ...


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