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What is Maximum Medical Improvement?

May 10, 2019 by Sean Knight

Doctor putting bandage to patient's injured arm.

Colorado Court of Appeals limits ALJ’s authority to determine issue of Maximum Medical Improvement (”MMI”):

When an injured workers’ medical condition has stabilized, or plateaued, there is a medical determination that the injured worker has reached MMI.  The Colorado Workers’ Compensation Act sets forth the statutory rules for the parties to challenge a physician’s determination of MMI, or failure to place the injured worker at MMI, depending on the case.   The procedures follow 2 main avenues:  (1) Apply for Division Independent Medical Examination (“DIME”), or; (2) Apply for hearing in front of Administrative Law Judge (“ALJ”).  The Colorado Court of Appeals recently held that an ALJ cannot determine MMI when neither a treating physician nor a DIME physician has placed the injured worker at MMI. 

Background

Claimant sustained admitted work-related injuries to her arm and shoulder in September 2014. Several physicians treated her for her injuries well into 2017. Despite several years of treatment, claimant complained that her pain continued to worsen. Claimant testified that none of the treatment she received improved her condition. None of claimant’s treating physicians (“ATPs”) placed her at MMI.

In June 2015, Respondents retained Dr. Allison Fall to perform an independent medical examination of claimant. Dr. Fall opined that claimant was not at MMI at that time, but anticipated that claimant would reach MMI in 3-6 months.

Several weeks after receiving Dr. Fall’s opinion, Respondents requested a twenty-four-month DIME 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 level, right rotator cuff tendinitis, and cervical myalgia. Dr. Henke determined claimant was not at MMI.

Respondents applied for a hearing to overcome Dr. Henke’s DIME opinion. Following the hearing, during which Dr. Fall testified that Claimant was at MMI, the ALJ found that Respondents overcame the DIME and the ALJ determined that claimant reached MMI on June 28, 2016.

On review, the Industrial Claims Appeal Office (“ICAO) upheld the ALJ’s order.

Holding

The Court of Appeals reversed and remanded the case back to the ALJ.  In reviewing The Act and interpretive case law on the issue of MMI, the Court of Appeals highlighted a factor common to cases in which MMI could be decided as a matter of fact: in each instance, a conflict existed between the DIME and the ATP whether the Claimant was at MMI which required resolution by the ALJ. There were no cases when the only physician placing the claimant at MMI was a doctor selected by the Respondents. To the contrary, in all the cases reviewed, either an ATP or the DIME had placed the claimant at MMI. 

Impact

The primary impact of this holding is to effectively preclude Respondent’s ability to challenge a twenty-four-month DIME when the DIME agrees with the ATP that a claimant is not at MMI, and necessitates  that treatment should continue until either the DIME or the ATP places the claimant at MMI notwithstanding the opinions of an IME hired by Respondents.

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