Peitz v. Industrial Claim Appeals Office

2024 COA 102

• Court: Colorado Court of Appeals
• Decided: September 12, 2024
• Docket: 24CA0250
• Status: Published

Opinion

SUMMARY

September 12, 2024

2024COA102

No. 24CA0250, Peitz v. Industrial Claim Appeals Office —

Labor and Industry — Workers’ Compensation — Workers’

Compensation Rules of Procedure — Division Independent

Medical Examination (DIME) — Payments/Fees — Scope of

Evaluation

In this workers’ compensation proceeding, a division of the

court of appeals considers, for the first time, whether Rule 11-5 of

the Workers’ Compensation Rules of Procedure (WCRP), Div. of

Workers’ Comp. Rule 11-5, 7 Code Colo. Regs. 1101-3, prohibits a

physician performing a division independent medical examination

(DIME) from evaluating all aspects of a worker’s injury in

determining whether the worker has obtained maximum medical

improvement (MMI).

WCRP 11-5 establishes a schedule of fees that a physician

may charge for a DIME, based primarily on the designated body

parts and date of injury on the application for a DIME. The division

The summaries of the Colorado Court of Appeals published opinions

constitute no part of the opinion of the division but have been prepared by

the division for the convenience of the reader. The summaries may not be

cited or relied upon as they are not the official language of the division.

Any discrepancy between the language in the summary and in the opinion

should be resolved in favor of the language in the opinion.

rejects respondents’ argument that the number of body parts

selected pursuant to the fee schedule limits the scope of a DIME

physician’s examination to determine MMI.

COLORADO COURT OF APPEALS 2024COA102

Court of Appeals No. 24CA0250

Industrial Claim Appeals Office of the State of Colorado

WC No. 5-142-174

Jason Peitz,

Petitioner,

v.

Industrial Claim Appeals Office, Board of Water Works of Pueblo, and Travelers

Casualty & Surety Co.,

Respondents.

ORDER SET ASIDE AND CASE

REMANDED WITH DIRECTIONS

Division VI

Opinion by JUDGE SCHUTZ

Lipinsky and Taubman*, JJ., concur

Announced September 12, 2024

Michael W. Seckar, P.C., Lawrence D. Saunders, Pueblo, Colorado for Petitioner

No Appearance for Respondent Industrial Claim Appeals Office

Ray Lego and Associates, Jonathan S. Robbins, Centennial, Colorado for

Respondents Board of Water Works of Pueblo and Travelers Casualty & Surety

Co.

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2024.

1

¶ 1 Jason Peitz appeals an order of the Industrial Claim Appeals

Office (Panel) affirming a determination by an administrative law

judge (ALJ) that he had reached maximum medical improvement

(MMI) for all work-related conditions. We set aside the Panel’s order

and remand with directions.

¶ 2 Resolution of this appeal requires us to consider, for the first

time in a published opinion, whether Workers’ Compensation Rule

of Procedure 11-5, Div. of Workers’ Comp. Rule 11-5, 7 Code Colo.

Regs. 1101-3 (WCRP 11-5), requires a physician who is conducting

a division independent medical examination (DIME) under section

8-42-107.2(2)(a)(I), (b)-(c), C.R.S. 2024, to consider only those body

parts designated on the DIME application form. We conclude that,

when assessing whether a claimant is at MMI, a DIME physician

may consider all relevant body parts, even if those body parts were

not designated on the DIME form.

I. Background

¶ 3 In February 2020, Peitz sustained an admitted work-related

injury to his lower back while working as a mechanic for the Board

of Water Works of Pueblo. The next day, Peitz received treatment

from Dr. Terrence Lakin, who completed a “Physician’s Report of

2

Workers’ Compensation Injury.” Dr. Lakin diagnosed Peitz with a

strain of muscle, fascia, and tendon in his lower back.

¶ 4 Dr. Lakin referred Peitz for x-rays and an MRI. The MRI

showed stenosis at lumbar vertebrae 4-5 and degenerative disc

disease. After conservative treatment did not help, in August 2020,

Peitz consulted Dr. Jennifer Kang, an orthopedist, who

recommended injections and, if the symptoms did not resolve in six

months, a lumbar fusion. Thereafter, Peitz received injections,

massage, and chiropractic care.

¶ 5 In October 2020, at the request of the Board of Water Works of

Pueblo and its insurer, Travelers Casualty & Surety Co. (jointly,

respondents), Peitz saw Dr. David Elfenbein for an independent

medical exam (IME). At that time, Peitz’s complaints included right

hip pain, with a burning sensation in his groin. Dr. Elfenbein

opined that the hip issue should be addressed before Peitz received

further treatment for his spine.

¶ 6 One month later, Peitz was referred to Dr. Todd Miner for

evaluation of the hip pain. Dr. Miner diagnosed Peitz with bilateral

advanced hip osteoarthritis and recommended a bilateral hip

replacement, which was performed in December 2020. Dr. Miner

3

evaluated Peitz virtually in April 2021. Peitz reported to Dr. Miner

that his groin and thigh pain had essentially gone away.

¶ 7 Peitz continued to have low back pain, however, and Dr. Kang

performed a lumbar fusion. According to Peitz’s authorized treating

physician (ATP), Dr. George Johnson, Peitz “had some physical

therapy following the surgery but discontinued [it] due to his left

groin pain that has been present since the surgery.”

¶ 8 In July 2022, Peitz filed an “Application for Hearing” (AFH),

checking the box for “medical benefits” as the issue to be

considered. Under the section entitled “other issues to be heard at

this hearing,” Peitz stated that he had “been denied treatment for

his groin and hips which should be covered under this claim.”

¶ 9 On October 18, 2022, an ALJ conducted a hearing at which no

testimony was taken but exhibits were entered, including Peitz’s

medical records and an IME that Dr. Wallace Larson had performed

at respondents’ request in September 2022. In the IME, Dr. Larson

4

opined that Peitz’s left groin pain was likely an idiopathic

1

condition

or related to the hip replacement and was not likely related to the

back surgery.

¶ 10 In a November 2022 order, the ALJ found that Peitz had failed

to prove that his hip or groin symptoms were related to his work

injury. The ALJ found Dr. Larson’s opinion credible and discounted

as “conclusory” the ATP’s opinion that the hip and groin issues were

related to the back surgery. The ALJ therefore denied Peitz’s

request for benefits to cover treatment of his groin or hips and

1

“Idiopathic” is defined as (1) “arising spontaneously or from an

obscure or unknown cause” or (2) “peculiar to the individual.”

Webster’s Third New International Dictionary 1123 (2002). In City

of Brighton v. Rodriguez, 2014 CO 7, the Colorado Supreme Court

stated,

We have never explicitly defined “idiopathic.”

We have, however, used the term consistently

with the leading treatise in the field: “Generally

understood within the workers’ compensation

framework to mean ‘self-originated,’

[idiopathic] injuries usually spring from a

personal risk of the claimant, e.g., heart

disease, epilepsy, and the like. . . . Idiopathic

injuries, therefore, often are not compensable.”

Id. at ¶ 21 n.2 (quoting LexisNexis, Larson’s Workers’ Compensation

Glossary, https://perma.cc/P6EV-TJSF).

5

reserved all other issues for future determination. Peitz did not

appeal that order.

¶ 11 In December 2022, Peitz again saw his ATP. The ATP found

that Peitz was at MMI and assigned a 30% whole person

impairment rating. Respondents sought a DIME. They checked the

boxes for “Region 4: Spine / Lumbar” on the “Notice and

Application” as the body part to be evaluated in the DIME.

¶ 12 Dr. Paul Ogden conducted the DIME in April 2023, diagnosing

Peitz with chronic pain disorder, axial low back pain, and left hip

flexion weakness. Dr. Ogden opined that Peitz was not at MMI

because his chronic pain disorder and left hip pain still needed to

be addressed. Dr. Ogden stated that, to reach MMI, Peitz would

need to be treated for the chronic pain disorder, including

psychosocial evaluations and cognitive behavioral therapy. He

assigned a whole person impairment rating of 27%.

¶ 13 Respondents filed an AFH on May 12, 2023, checking the box

for “other issues,” which they listed as “Overcome DIME, not at

MMI, compensable components.” The same ALJ conducted a

hearing, at which Peitz did not testify but was represented by

counsel. Dr. Larson testified and Dr. Ogden’s deposition was

6

entered into evidence by agreement of the parties. See § 8-43-210,

C.R.S. 2024 (“Depositions may be substituted for testimony upon

good cause shown.”).

¶ 14 Shortly before the hearing, respondents moved for summary

judgment, asserting that, because they did not ask for Peitz’s hip to

be evaluated during the DIME, Dr. Ogden could not address that

body part, relying on WCRP 11-5. Paragraph (A) of WCRP 11-5

provides a schedule for the fees a DIME physician may charge

based on the number of body parts selected, the date of injury, and,

in exceptional circumstances, the number of medical records.

Because respondents only checked the box for examination of the

lumbar spine, they argued that Dr. Ogden erred when he

considered Peitz’s hip condition in assessing whether he was at

MMI.

¶ 15 The ALJ issued an order listing the issues to be addressed at

the hearing as whether respondents overcame the DIME

determination that Peitz was not at MMI and the 27% whole person

impairment rating. The ALJ found that respondents overcame the

DIME determination that Peitz was not at MMI but failed to

overcome the impairment rating.

7

¶ 16 The ALJ’s order included the following conclusions:

[T]he only body part selected by Respondents

for consideration by the DIME [was] the

lumbar spine. Since no other body part was

selected, the DIME doctor’s inclusion of hip

and psychological [conditions] are beyond the

scope of the DIME. As such, the doctor’s

opinions that [Peitz] is not at MMI for hip and

psychological issues for chronic pain cannot be

considered under [section 8-42-107.2(2)(b)].

The ALJ determined that (1) “[t]he parties are bound by the ATP’s

determination that [Peitz] is at MMI for all work-related conditions

except for the lumbar spine”; (2) “[Peitz] is at MMI for the lumbar

spine”; and (3) respondents failed to overcome the DIME’s 27%

impairment rating of Peitz.

¶ 17 Peitz filed a petition with the Panel to review the ALJ’s order,

arguing that the ALJ erred by concluding that Dr. Ogden was

limited in the scope of his medical exam to the lumbar spine

because that was the only body part respondents had selected on

the DIME form. The Panel agreed with Peitz that WCRP 11-5 does

not prevent a DIME physician from evaluating all body parts in

determining MMI, regardless of the particular body parts selected

on the DIME form. In support of this conclusion, the Panel cited its

opinion in Luis v. Spirit Hospitality, W.C. No. 5-131-365, 2023 WL

8

8606393, at *12 (Colo. I.C.A.O. Dec. 4, 2023) (“Rule 11-5 does not

prevent the DIME physician from evaluating any and all body parts

in determining MMI. This is because Rule 11-5 uses the list of body

regions to compute the DIME fee and not to limit the scope of the

DIME evaluation.”).

¶ 18 But the Panel also reasoned that, in this case — unlike Luis —

the same ALJ had made an earlier final adjudication that Peitz’s hip

and groin problems were unrelated to his work injury. The Panel

determined that the ALJ’s initial order was therefore “res judicata as

to the causation of the hip and groin problems.”

2

The Panel

concluded that the ALJ did not err by rejecting the DIME

physician’s opinion on MMI as to body parts that “had already been

determined were not related to the injury.” The Panel added,

“Because the only basis provided by the DIME physician that [Peitz]

2

Although the Panel initially used the phrase “res judicata,” the

context and subsequent discussion indicate it intended to refer to

“issue preclusion.” Like the parties on appeal, we will use the

phrase “issue preclusion,” which is discussed in greater detail

below. See Argus Real Est., Inc. v. E-470 Pub. Highway Auth., 109

P.3d 604, 608 (Colo. 2005) (noting that the use of the terms “res

judicata” and “collateral estoppel” can cause confusion because “res

judicata” was once commonly used to refer to both claim and issue

preclusion).

9

was not at MMI [was] [his] hip and groin issues and psychological

effects therefrom, we perceive no reversible error in the ALJ’s

conclusion that [Peitz] had reached MMI for the spine injury.” Peitz

now appeals the Panel’s decision to this court.

II. Standard of Review and Legal Principles

¶ 19 We may set aside a Panel order if the factual findings are not

sufficient, there are unresolved evidentiary conflicts, the findings do

not support the order or are unsupported by the record, or the

award or denial of benefits is not supported by the law. § 8-43-308,

C.R.S. 2024.

¶ 20 The Workers’ Compensation Act of Colorado (the Act),

§§ 8-40-101 to -47-209, C.R.S. 2024, is the exclusive remedy

available to employees for workplace injuries in Colorado. To

provide care to an injured employee under the Act, the employer or

the employer’s insurer identifies a list of providers from which the

employee selects an ATP. § 8-43-404(5)(a)(I)(A), C.R.S. 2024. After

providing the perceived necessary care, the ATP determines whether

the employee has reached MMI and, if so, the degree of any

permanent impairment. § 8-42-107(8)(b)(I), C.R.S. 2024.

10

¶ 21 If any party disputes the findings or determinations of the

ATP, the party shall request a DIME. See § 8-42-107.2(2)(a)(I), (b).

The DIME physician then examines the claimant and makes an

independent finding of the claimant’s condition. The DIME

physician’s findings may be overcome only by clear and convincing

evidence. § 8-42-107(8)(b)(III).

III. Issues Presented

¶ 22 Peitz raises three issues in this appeal:

• whether the Panel erred by finding that Dr. Ogden’s

opinion that Peitz was not at MMI due to the need for

chronic pain treatment could be ignored because any

need for such treatment was caused solely by his hip and

groin issues;

• whether the Panel erred by finding that issue preclusion

applied because the ALJ made an earlier finding that

Peitz’s hip and groin problems were unrelated to his work

injury; and

• whether the Panel erred by not remanding the case back

to the ALJ after it ruled in his favor on the scope of the

DIME.

11

¶ 23 In their answer brief, respondents assert the same argument

they unsuccessfully presented to the Panel: that WCRP 11-5

prevents the DIME physician, in determining MMI, from evaluating

any body part not designated on the DIME form. In his reply brief,

Peitz notes that respondents failed to make any arguments to rebut

his first two issues on appeal.

IV. Analysis

¶ 24 We first address the parties’ arguments regarding whether

WCRP 11-5 precludes a DIME physician from considering body

parts not designated on the DIME form when assessing whether a

claimant is at MMI. We then address whether the Panel properly

applied the doctrine of issue preclusion. Finally, we address

whether the Panel erred by concluding that Dr. Ogden determined

that Peitz’s need for psychological treatment was based solely on

the pain associated with his hip and groin issues.

A. WCRP 11-5

¶ 25 As noted, Peitz prevailed before the Panel on his interpretation

of WCRP 11-5, but in defending the Panel’s order before this court,

respondents continue to argue that WCRP 11-5 prohibits a DIME

physician from considering any body part not designated when

12

determining if a claimant is at MMI. We elect to address this issue

first.

¶ 26 WCRP 11-5(A) provides a schedule to determine the amount of

fees that a physician may charge for a DIME, based primarily on the

designated body parts and date of injury. Respondents rely on

WCRP 11-5(A) to argue that the Director of the Division of Workers’

Compensation, who promulgates the WCRP, must have meant to

limit the scope of a DIME physician’s examination to the designated

body parts. But the statute addressing DIMEs makes no mention

of any substantive limitation on the examining physician’s

assessment of MMI based on the number of body parts selected on

the DIME form, see § 8-42-107.2, and WCRP 11-5 is also silent on

the matter. We cannot read language into a rule, and we must give

effect to the rule’s plain language. See Smith v. Exec. Custom

Homes, Inc., 230 P.3d 1186, 1191 (Colo. 2010) (court cannot give a

statute a meaning that the plain language does not support);

Woolsey v. Colo. Dep’t of Corr., 66 P.3d 151, 153 (Colo. App. 2002)

(“In construing an administrative rule or regulation, we apply the

same rules of construction as we would in interpreting a statute.”).

13

¶ 27 Respondents argue that, because they selected only the spine

on the DIME form, Dr. Ogden erred by also considering the impact

of Peitz’s hip and groin conditions — and related chronic pain — in

determining whether he was at MMI. In other words, they argue

that the DIME physician should have reviewed only those body

parts that respondents selected. In rejecting this argument, the

Panel concluded that Rule 11-5 uses the list of body parts to

compute the DIME fee, not to limit the scope of the DIME

evaluation.

¶ 28 We agree with the Panel. Nothing in the applicable statute or

rules prohibits a DIME physician from addressing all relevant body

parts when assessing whether a claimant has reached MMI. See

Leprino Foods Co. v. Indus. Claim Appeals Off., 134 P.3d 475, 482-

83 (Colo. App. 2005) (In determining MMI, the DIME physician may

assess, “as a matter of diagnosis, whether the various components

of the claimant’s medical condition are causally related to the

industrial injury.”); see also Martinez v. Indus. Claim Appeals Off.,

176 P.3d 826, 827 (Colo. App. 2007) (same).

¶ 29 At oral argument, the division asked respondents’ counsel to

identify the specific language in WCRP 11-5 supporting their

14

contention that it was intended to limit the number of body parts a

DIME physician may consider when assessing MMI. Respondents’

counsel pointed generally to that portion of the rule referring to the

number of body parts checked on the form, the date of the injury,

and the extent of the medical records. But as previously noted,

these considerations are contained in WCRP 11-5(A), the portion of

the rule used to set the fee that a physician may charge for a DIME.

No language in the rule evinces any intent to preclude a DIME

physician from considering all relevant body parts — checked or

unchecked — that may be related to MMI.

¶ 30 Thus, we hold that, when assessing MMI, a DIME physician

may consider all relevant body parts, even if those body parts were

not designated on the DIME form.

B. Issue Preclusion

¶ 31 Peitz asserts that, after rejecting respondents’ WCRP 11-5

argument, the Panel should have remanded this case to the ALJ.

But respondents assert that Dr. Ogden was precluded from

considering Peitz’s hips and groin, and his related psychological

issues stemming from chronic pain, when determining whether he

15

had reached MMI due to the preclusive effect of the ALJ’s prior

order. We disagree with respondents for multiple reasons.

¶ 32 The purpose of issue preclusion is “to bar relitigation of an

issue.” Madalena v. Zurich Am. Ins. Co., 2023 COA 32, ¶ 21

(quoting Villas at Highland Park Homeowners Ass’n v. Villas at

Highland Park, LLC, 2017 CO 53, ¶ 29). A party seeking to bar

relitigation of an issue must show that

(1) the issue is identical to an issue actually

litigated and necessarily adjudicated in the

prior proceeding; (2) the party against whom

estoppel was sought was a party to or was in

privity with a party to the prior proceeding; (3)

there was a final judgment on the merits in the

prior proceeding; and (4) the party against

whom the doctrine is asserted had a full and

fair opportunity to litigate the issues in the

prior proceeding.

Id. (quoting Villas at Highland Park, ¶ 29).

¶ 33 The same parties appeared at both hearings, so the second

element of issue preclusion was met. But the remaining elements

of issue preclusion were not satisfied.

¶ 34 We agree with Peitz that the Panel erred as a matter of law by

holding that “whether [Peitz’s] ongoing hip and groin symptoms

were causally related to the work-related injury was resolved, by

16

final judgment, against [him] in the ALJ’s order of [November 23,

2022.]” The issue that the ALJ addressed in that order was

whether Peitz had proved entitlement to medical benefits for

treatment to his groin and hips because those issues were related to

his admitted work-related back injury. Nowhere in that order did

the ALJ discuss or determine MMI. Peitz asserts that the issues are

therefore not identical and cites Ortega v. JBS USA, LLC, W.C. No.

4-804-825, 2013 WL 3325150 (Colo. I.C.A.O. June 27, 2013), in

support of his argument.

¶ 35 In Ortega, the Panel reasoned,

The difficulty with the respondents’ position [of

issue preclusion] lies in the extent it would

allow for the prelitigation of the MMI and

impairment rating issues prior to the

application of the DIME process. Those issues

would be determined at a hearing by a

preponderance of the evidence standard. The

statute[,] however, provides that a DIME

determination of those issues is to be reviewed

at a hearing by a clear and convincing

standard. The tactic of litigating those issues,

by either party, as a means of obtaining

advantage in the DIME process is inconsistent

with the aim of the statute.

Id. at *3.

17

¶ 36 The Panel’s reasoning in Ortega is consistent with the analysis

in Sunny Acres Villa, Inc. v. Cooper, 25 P.3d 44 (Colo. 2001), in

which the Colorado Supreme Court held that issue preclusion did

not apply to a determination made at a temporary benefits hearing

because the parties did not have the same incentive to litigate as

they did at a permanent benefits hearing. See id. at 47 (“It is

settled law that a full and fair opportunity to litigate an issue

requires not only the availability of procedures in the earlier

proceeding commensurate with those in the subsequent proceeding,

but also that the party against whom collateral estoppel is asserted

has had the same incentive to vigorously defend itself in the

previous action.”) (citations omitted); see also Holnam, Inc. v. Indus.

Claims Appeals Off., 159 P.3d 795, 799 (Colo. App. 2006)

(recognizing that issue preclusion does not apply when the two

proceedings are subject to different standards of proof).

¶ 37 At the first hearing, Peitz sought medical benefits for

treatment related to his hips and groin. When that request was

denied, he returned to his ATP, who determined he was at MMI and

had a 30% impairment rating. Rather than accept the ATP’s

findings, respondents applied for a DIME. The DIME resulted in a

18

finding that Peitz had not reached MMI, which respondents

challenged at the second hearing.

¶ 38 In our view, the Panel erred by determining that the issue of

whether Peitz could receive benefits for treatment of his hip and

groin was identical to the issues presented at the second hearing,

which respondents’ own AFH described as “Overcome DIME, not at

MMI, compensable components.”

¶ 39 The rationale of Sunny Acres and Ortega supports the

conclusion that issue preclusion does not apply here because

“prelitigation” of the DIME process is inconsistent with the statute,

the issues addressed by the ALJ and DIME physician are not

identical, and Peitz did not have the same information and incentive

to litigate causation prior to the DIME physician’s determination of

MMI. Therefore, the ALJ’s initial resolution of causation in the

treatment context should not be given preclusive effect and thereby

usurp the DIME process for determining MMI.

¶ 40 Moreover, because the first hearing never addressed MMI or

impairment, the ALJ decided it based on the preponderance of

evidence standard. § 8-43-201(1), C.R.S. 2024. At the second

hearing, respondents had to overcome by clear and convincing

19

evidence the conclusion that Peitz was not at MMI.

§ 8-42-107(8)(b)(III); see also Restatement (Second) of Judgments

§ 28(4) (Am. L. Inst. 1982) (application of issue preclusion may be

affected by different burdens of proof).

¶ 41 For these reasons, we hold that the Panel erred by concluding

that issue preclusion barred any portion of Dr. Ogden’s

determination of MMI.

C. Need for Psychological Treatment

¶ 42 Finally, we also agree with Peitz that the Panel erred by

concluding that his need for psychological treatment arose only

from his hip and groin pain. During Dr. Ogden’s deposition, which

was part of the evidentiary record before the ALJ, respondents’

counsel specifically asked Dr. Ogden whether he was

recommending psychological treatment because of Peitz’s hip or

back. Dr. Ogden replied that it was mainly due to Peitz’s back

injury. Respondents’ counsel asked, “Now, the functional

limitations that Mr. Peitz complained of that led you to opine he

needs his chronic pain program are we talking about the left hip or

are we talking about the back?” Dr. Ogden replied, “It’s primarily

the back.” This testimony was consistent with Dr. Ogden’s report,

20

in which he concluded that most of Peitz’s psychological issues from

chronic pain were attributable to his back injury.

¶ 43 Despite the above testimony, as well as Dr. Ogden’s report

documenting that he felt the need for psychological treatment was

mainly associated with Peitz’s back injury, the Panel specifically

said in its order that Dr. Ogden stated that the need for

psychological treatment was solely based on Peitz’s hip and groin

issues. This was a clearly erroneous finding based on the evidence.

As such, we must set it aside. See § 8-43-308.

V. Disposition

¶ 44 We set aside the Panel’s order with instructions to remand this

case to the ALJ to address the issues raised in respondents’ May

12, 2023, AFH, consistent with the conclusions set forth herein.

JUDGE LIPINSKY and JUDGE TAUBMAN concur.