Yeutter v. ICAO

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.

SUMMARY
April 11, 2019

2019COA53

No. 18CA0498, Yeutter v. ICAO — Labor and Industry —
Workers’ Compensation — Benefits — Permanent Partial
Disability — Medical Impairment Benefits — Permanent Total
Disability — Maintenance Medical Benefits — Division-
Sponsored Independent Medical Examination

A division of the court of appeals considers whether section 8-

42-107(8)(b)(III), C.R.S. 2018, which provides that a

division-sponsored independent medical examination (DIME)

physician’s opinions concerning maximum medical improvement

and impairment are given presumptive weight, also requires

deference to a DIME physician’s opinion as to causation. The

division concludes that no such deference is due under the statute

and that the question of causation should be reviewed de novo.
COLORADO COURT OF APPEALS 2019COA53

Court of Appeals No. 18CA0498
Industrial Claim Appeals Office of the State of Colorado
WC No. 489-594-003

Joseph Yeutter,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado; CBW Automation, Inc.;
and Pinnacol Assurance,

Respondents.

ORDER AFFIRMED

Division V
Opinion by JUDGE GROVE
Terry and J. Jones, JJ., concur

Announced April 11, 2019

Eley Law Firm, LLC, Scott Eley, Denver, Colorado, for Petitioner

No Appearance for Respondent Industrial Claim Appeals Office

Harvey D. Flewelling, Denver, Colorado, for Respondents Pinnacol Assurance
and CBW Automation, Inc.
¶1 Claimant, Joseph Yeutter, seeks review of a final order of the

Industrial Claim Appeals Office (Panel) affirming the decision of an

administrative law judge (ALJ) denying and dismissing his claims

for permanent total disability (PTD) and maintenance medical

benefits. We affirm.

I. Background

¶2 Claimant worked as a controls engineer for employer, CBW

Automation, Inc. In August 2012, he sustained admitted, serious

injuries in a work-related accident when he was struck in the head

and shoulder and knocked to the ground by a robotic arm. His

injuries included “a skull fracture, vestibular ear and inner ear

nerve damage, slap tear in [the] shoulder, broken arm,” and

fractures to “both of his orbital sockets.” He returned to work after

two weeks but voluntarily resigned two months later; he then

commenced employment as a mechanical engineer for BW

Container Systems, a position he held until February 2015. At BW

Container, he typically worked nine or ten hours per day “with

weekends and sometimes evenings after work.”

¶3 More than a year after the incident, claimant’s physical

injuries had “stopped hurting so much,” but he felt fatigued. In

1
 July 2014, one of his authorized treating physicians, Dr. Carol

Newlin, prescribed Adderall and Ritalin as stimulants to help him

“get through [his] day.” A sleep study conducted one month later

by another treating physician, Dr. Mark Neagle, revealed sleep

patterns consistent with narcolepsy. A professor of psychiatry at

the University of Colorado, Dr. Martin Reite, corroborated the

narcolepsy diagnosis, stating that “as a result of my evaluation I

have concluded that [claimant] has a sleep disorder consisting of

Type 1 Narcolepsy, most likely post-traumatic in origin.” Dr. Reite

went on to note that “the cause of narcolepsy is varied, can be

idiopathic (onset with no obvious cause), familial (genetic influence

and running in families), or triggered by viral infection or head

trauma (as in [claimant’s] case).” Finally, Dr. Reite opined that

claimant “is seriously disabled as a result of his narcolepsy and

other trauma related conditions, and his prognosis at this time is

guarded.”

¶4 On August 26, 2015, claimant was placed at maximum

medical improvement (MMI) by his primary authorized treating

physician, Dr. Kevin O’Toole. Although claimant’s skull and facial

fractures had healed, Dr. O’Toole assessed claimant as suffering

2
 from “narcolepsy, hypersomnolence, probably related to traumatic

brain injury, managed with stimulant medication.” He

recommended that claimant “continue his current medications.”

Dr. O’Toole also opined that claimant could not work and should be

off work indefinitely. He rated claimant’s permanent impairment at

67% of the whole person, which he calculated by combining

impairment ratings for claimant’s mental health, sleep and arousal

disorders, and vision impairment.

¶5 Three mental health and medical experts retained by employer

disagreed with Dr. O’Toole’s assessment, however. Psychiatrist Dr.

Susan Rosenfeld opined that the “reported symptoms, clinical

findings and treatment plan do not support functional impairment

from a psychiatric condition which translates into restrictions or

limitations.”

¶6 Similarly, Dr. Stephen Selkirk, who is board certified in both

psychiatry and neurology, reported that claimant

has extensive subjective complaints that are
not supported by objective data in the medical
record. . . . The complaint of cognitive
dysfunction has not been confirmed by a
formal neuropsychological battery. Finally, the
report of fatigue is subjective. The result of
sleep study evaluations and multiple sleep

3
 latency tests are not available for review and
therefore the presence of narcolepsy or
post-traumatic narcolepsy cannot be
objectively confirmed.

Based on his review of the medical records, Dr. Selkirk concluded

that claimant had “no impairments from a neurological perspective,

and thus, no restrictions or limitations are supported.”

¶7 Finally, Dr. Kathleen D’Angelo, who specializes in occupational

medicine, independently examined claimant and conducted a

thorough medical records review. She expressly noted that a

second sleep study confirmed claimant’s narcolepsy diagnosis, but

she was skeptical that it was work-related because available

medical literature had not demonstrated a causative connection

between head trauma and narcolepsy. To further support her

conclusion that claimant’s narcolepsy was not related to his work

injury, she explained that the lengthy temporal gap between

claimant’s injury and the onset of his narcolepsy substantially

lessened the likelihood of a causal connection between the two.

¶8 After employer obtained these independent medical

examination reports, claimant underwent a division-sponsored

independent medical examination (DIME) with Dr. Albert Hattem.

4
Dr. Hattem agreed with Dr. O’Toole that claimant reached MMI on

August 26, 2015. But, he assigned claimant a lower impairment

rating — 39% of the whole person — than Dr. O’Toole had assigned

because he felt the brain impairment calculated by Dr. O’Toole was

too high given that claimant “does not require assistance with

activities of daily living.” Dr. Hattem was less certain about the

cause of claimant’s narcolepsy, though, and deferred to claimant’s

treating physicians on the question. He stated as follows:

This is a very difficult case in terms of
causation because the examinee’s condition
(post traumatic narcolepsy) is very rare and
did not become evident until more than one
year after the August 24, 2012 injury. After
the injury and prior to first reporting fatigue in
November 2013 the examinee had been
working full duty as an engineer for two
different employers sequentially – work that
would be considered very cognitively
demanding. . . .

Because I have no prior experience with this
type of condition, I must defer to all of the
specialists who previously evaluated
[claimant]. . . . All of these physicians opined
that the examinee’s narcolepsy is related to the
August 2012 work injury despite the latency
between the injury and the onset of this
disorder.

5
¶9 Employer did not contest Dr. Hattem’s DIME opinions.

Rather, it filed a final admission of liability (FAL) accepting Dr.

Hattem’s MMI date of August 26, 2015, and admitting claimant’s

entitlement to permanent partial disability (PPD) benefits based on

the 39% whole person impairment rating, which it calculated to

equal $127,502.69. However, employer did not admit liability for

any continuing post-MMI maintenance medical benefits.

¶ 10 Thereafter, claimant filed an application for a hearing seeking

PTD benefits and future maintenance medical benefits.

¶ 11 At the ensuing hearings, the parties offered contradictory

evidence of claimant’s need for PTD benefits. Katie Montoya, a

vocational consultant, testified on claimant’s behalf. She opined

that although claimant had no work restrictions “from a physical

standpoint,” she agreed with Dr. O’Toole’s opinion that claimant’s

issues with “wakefulness, the capacity to be productive day in and

day out and what would be necessary pharmacologically” for him to

maintain employment, made him incapable “of returning to work at

this time.”

¶ 12 In contrast, employer’s retained vocational rehabilitation

counselor, Roger Ryan, opined that claimant “is able to work and

6
 earn a wage.” Mr. Ryan cited to claimant’s computer adeptness,

mechanical engineering experience, and military background as

transferable skills upon which claimant could draw to find gainful

employment. Mr. Ryan identified several occupations matching

claimant’s abilities, including mechanical drafter, information clerk,

salesperson, cashier, telephone solicitor, tutor, appointment clerk,

dispatcher, night auditor, collection clerk, unarmed security guard,

and production assembler.

¶ 13 Employer also introduced the opinions of two additional

independent medical examiners to support its position that

claimant was neither permanently totally disabled nor required

ongoing maintenance medical care. These independent medical

examiners, psychiatrist Dr. Robert Kleinman and psychologist Dr.

Susan Kenneally, both questioned the necessity of claimant

receiving PTD and maintenance medical benefits. Dr. Kleinman, in

particular, doubted the severity of claimant’s narcolepsy, and

suggested that claimant was exaggerating the extent of his

disability. He also opined that claimant “does not have restrictions

or limitation” that would impede his ability to work.

7
¶ 14 Dr. Kenneally, in turn, questioned the causal connection

between claimant’s admitted work-related injury and his accurately

diagnosed narcolepsy. She testified that there is a dearth of

medical research linking narcolepsy and traumatic brain injury

(TBI), noting that there is a lack of “reliable, repeatable markers for

narcolepsy, and we certainly have no way to discriminate if it is

caused by traumatic brain injury, it is caused by genetic history, it

is caused by other trauma.” In addition to “the science [being] out”

on this question, she explained that the “late onset” of claimant’s

narcoleptic condition made it “highly atypical and would argue

against it being caused by or related to the TBI.” Moreover, the

battery of tests Dr. Kenneally administered to claimant revealed

that although he “clearly” suffered a TBI as a result of his workplace

accident, “current testing found no pattern of persistent deficits

consistent with the brain injury findings at the time of the injury.”

¶ 15 After two days of hearings, and the admission of hundreds of

pages of medical records, the ALJ found that claimant failed to

demonstrate that it was “more probably true than not that his

narcolepsy was caused by his August 24, 2012 industrial accident

while working for [e]mployer.” The ALJ was persuaded by Dr.

8
D’Angelo’s testimony that “[b]ecause traumatic brain injuries are

acutely symptomatic, the delayed onset of [c]laimant’s narcolepsy

symptoms suggests an attenuated causal relationship between his

accident and the development of narcolepsy.” The ALJ also found

that the “bulk of the medical evidence supports Mr. Ryan’s

determination that [c]laimant has the ability to earn wages in some

capacity.” Accordingly, the ALJ denied and dismissed claimant’s

claims for PTD and maintenance medical benefits. A divided Panel

affirmed the ALJ’s order. The majority rejected claimant’s

contention that the ALJ was bound by the DIME’s conclusion that

claimant’s narcolepsy was related to the work accident. The Panel

noted that neither MMI nor impairment was at issue before the ALJ.

Thus, the Panel held, the DIME physician’s causation

determination held no presumptive weight and claimant bore the

burden of proving his entitlement to PTD benefits by a

preponderance of the evidence. Similarly, the DIME physician’s

opinion that claimant would require maintenance medical

treatment did not relieve claimant of the burden to prove the

reasonableness, necessity, and relatedness of the requested

continuing treatment. Because substantial evidence supported the

9
 ALJ’s factual findings on these issues, see § 8-43-301(8), C.R.S.

2018, the Panel found “no basis to disturb the order.” Claimant

now appeals.

II. ALJ Was Not Bound by the DIME’s Causation Analysis

¶ 16 Claimant first contends that the ALJ erred in requiring him to

prove his entitlement to PTD benefits and maintenance medical

benefits by a preponderance of the evidence. He asserts that the

ALJ should have given Dr. Hattem’s DIME opinion presumptive

weight as to the cause of his injury and that employer should have

been required to overcome the DIME’s causation opinion with clear

and convincing evidence. We disagree.

A. Standard of Review

¶ 17 Because the question claimant raises involves the application

of the governing law and construction of statutes, we review it de

novo. See City of Littleton v. Indus. Claim Appeals Office, 2016 CO

25, ¶ 27 (“We review de novo questions of law concerning the

application and construction of statutes.” (quoting Hickerson v.

Vessels, 2014 CO 2, ¶ 10)).

10
 B. Analysis

¶ 18 A DIME physician’s opinions concerning MMI and impairment

are, by express statutory edict, afforded presumptive weight. See

§ 8-42-107(8)(b)(III), C.R.S. 2018. The statute states that “[t]he

finding regarding [MMI] and permanent medical impairment of an

independent medical examiner in a dispute arising under

subparagraph (II) of this paragraph (b) may be overcome only by

clear and convincing evidence.” Id. Subparagraph (II) is limited to

parties’ disputes over “a determination by an authorized treating

physician on the question of whether the injured worker has or has

not reached [MMI].” § 8-42-107(8)(b)(II). Nowhere in the statute is

a DIME’s opinion as to the cause of a claimant’s injury similarly

imbued with presumptive weight.

¶ 19 The claims claimant asserted in this case involved neither MMI

nor permanent impairment — those issues had already been

conceded by employer in its FAL. Rather, claimant sought PTD

benefits and maintenance medical benefits in his application for

hearing. He bore the burden of establishing his entitlement to

these benefits because a claimant “shall have the burden of proving

11
 entitlement to benefits by a preponderance of the evidence.”

§ 8-43-201(1), C.R.S. 2018.

¶ 20 Claimant attempts to circumvent this statutory structure by

arguing, essentially, that a DIME’s opinion on causation also

carries presumptive weight. He cites to Leprino Foods Co. v.

Industrial Claim Appeals Office, 134 P.3d 475 (Colo. App. 2005), and

Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App.

2002), as well as several Panel decisions and the opinion of the

dissenting Panel member in this case, to support his contention.

He asserts that, from these cases, a general principle can now be

extracted that — like MMI and impairment — a DIME’s causation

opinion universally carries presumptive weight. He characterizes as

“exceptions” cases that limit a DIME opinion’s presumptive weight

to MMI and impairment.

¶ 21 Notwithstanding claimant’s characterization, the principle that

a DIME’s opinion carries presumptive weight only with respect to

MMI and impairment, but not as to causation, is not an “exception.”

It is the statutory rule. See § 8-42-107(8)(b)(III); Faulkner v. Indus.

Claim Appeals Office, 12 P.3d 844, 846 (Colo. App. 2000) (DIME

opinion concerning causation need not be overcome by clear and

12
 convincing evidence where dispute involved the “threshold

requirement” that the claimant establish a compensable injury);

Story v. Indus. Claim Appeals Office, 910 P.2d 80, 81 (Colo. App.

1995) (DIME determination of MMI did not preclude change of

physician order where claimant is entitled to post-MMI treatment).

¶ 22 The cases claimant cites do not convince us otherwise. First,

although we defer to the Panel’s interpretation of the Act, see Keel v.

Indus. Claim Appeals Office, 2016 COA 8, ¶ 31, “we are not bound

by the Panel’s decisions in other workers’ compensation cases,”

Olivas-Soto v. Indus. Claim Appeals Office, 143 P.3d 1178, 1180

(Colo. App. 2006). Nor do we give precedential weight to

unpublished decisions of other divisions of this court. See Bittle v.

Brunetti, 750 P.2d 49, 52 n.2 (Colo. 1988). And, the published

opinions of other divisions of this court on which claimant relies do

not support the position he advances. Indeed, as the Panel majority

noted, “[w]hen . . . a party is not challenging a DIME physician’s

MMI determination or impairment rating, the Courts have

repeatedly held that the heightened burden of proof required by § 8-

42-107(8) does not apply.”

13
¶ 23 For example, in Leprino Foods, the division held that the

DIME’s causation opinion carried presumptive weight because it

was inextricably tied to MMI. There, the employer was seeking “to

avoid the finality of the DIME physician’s opinion regarding MMI.”

134 P.3d at 482. The division noted that MMI and/or impairment

are often inextricably linked to causation because “[b]oth

determinations inherently require the DIME physician to assess, as

a matter of diagnosis, whether the various components of the

claimant’s medical condition are causally related to the industrial

injury.” Id. This is true because no claimant achieves MMI until all

conditions related to the workplace injury have reached their

maximum improvement. See Paint Connection Plus v. Indus. Claim

Appeals Office, 240 P.3d 429, 433 (Colo. App. 2010) (“[T]he legally

significant date, that is, the date of MMI for purposes of ending a

claimant’s temporary disability, is the date upon which the claimant

has attained maximum medical recovery from all of the injuries

sustained in a particular compensable accident. . . . MMI is not

‘divisible and cannot be parceled out among the various

components of a multi-faceted industrial injury.’” (quoting Parra v.

14
 Haake Farms, W.C. No. 4-396-744, 2001 WL 470646, at *2 (Colo.

I.C.A.O. Mar. 8, 2001))).

¶ 24 Moreover, Leprino Foods explicitly recognized that although “a

DIME physician’s opinions concerning MMI and permanent medical

impairment are given presumptive effect,” in contrast, “the

threshold question of whether the claimant has sustained a

compensable injury in the first instance is one of fact that the ALJ

must determine, if contested, under the preponderance of the

evidence standard.” 134 P.3d at 482-83. Thus, Leprino Foods does

not stand for the proposition that a DIME’s opinion on causation

always carries presumptive weight.

¶ 25 Similarly, Cordova declined to extend any presumptive weight

to a DIME’s opinion beyond MMI and impairment. The division

rejected the claimant’s attempt to extend the DIME opinion’s

presumptive weight to worsened conditions. Instead, it reiterated

the governing statutory standard:

Claimant attempts to characterize the present
dispute as one involving MMI. However, the
pertinent and necessary inquiry is whether he
has suffered a deterioration in his condition
that justifies additional benefits. Although
medical evidence bearing on whether he has
remained at MMI would be relevant to that

15
 inquiry, the original MMI determination may
not be questioned. We therefore agree with the
Panel that the opinion of a DIME physician as
to whether a claimant’s condition has
worsened carries no special weight and need
not be overcome by clear and convincing
evidence. . . .

The Panel correctly observed that the opinions
of a DIME physician have only been given
presumptive effect when expressly required by
the statute.

Cordova, 55 P.3d at 190 (citation omitted). Thus, like Leprino

Foods, Cordova does not stand for the proposition claimant

advances.

¶ 26 Here, the only issues before the ALJ were PTD and

maintenance medical benefits. Neither of these inquiries required

examination of the DIME physician’s MMI or impairment

determinations. A claimant is permanently and totally disabled,

and therefore entitled to PTD compensation, if he or she “is unable

to earn any wages in the same or other employment.”

§ 8-40-201(16.5)(a), C.R.S. 2018. In determining whether a

claimant is permanently and totally disabled, the ALJ may consider

“human factors.” See Weld Cty. Sch. Dist. RE-12 v. Bymer, 955 P.2d

550, 556 (Colo. 1998). “Human factors” include such elements as

16
 the claimant’s “education, ability, and former employment,” Holly

Nursing Care Ctr. v. Indus. Claim Appeals Office, 992 P.2d 701, 703

(Colo. App. 1999); “the claimant’s age, work history, general

physical condition, and prior training and experience,” Joslins Dry

Goods Co. v. Indus. Claim Appeals Office, 21 P.3d 866, 868 (Colo.

App. 2001); and “the community where [the] claimant resides,”

Brush Greenhouse Partners v. Godinez, 942 P.2d 1278, 1279 (Colo.

App. 1996), aff’d sub nom. Bymer, 955 P.2d 550. None of these

factors bear on whether a claimant has reached MMI.

¶ 27 Likewise, a claimant is entitled to post-MMI maintenance

medical benefits if he or she shows that future medical treatment

will be “reasonably necessary to relieve the claimant from the effects

of the industrial injury or occupational disease even though such

treatment will not be received until sometime subsequent to the

award of permanent disability.” Grover v. Indus. Comm’n, 759 P.2d

705, 710 (Colo. 1988). An employer, in turn, “may contest any

future claims for medical treatment on the basis that such

treatment is unrelated to the industrial injury or occupational

disease.” Id. at 712. As with PTD, this analysis does not

necessitate inquiry into MMI or impairment.

17
¶ 28 Because section 8-42-107(8) only grants presumptive weight

to a DIME’s opinions concerning MMI and impairment, see

Faulkner, 12 P.3d at 846, we decline to extend the statute’s

presumptive reach to causation. See Kraus v. Artcraft Sign Co., 710

P.2d 480, 482 (Colo. 1985) (The appellate courts of this state have

“uniformly held that a court should not read nonexistent provisions

into the . . . Act.”); see also Kieckhafer v. Indus. Claim Appeals

Office, 2012 COA 124, ¶ 16. Accordingly, the ALJ was not bound

by Dr. Hattem’s causation determination and committed no error

when he denied and dismissed claimant’s claims for PTD and

maintenance medical benefits.

III. No Due Process Violation

¶ 29 Claimant also asserts that he was deprived of his property

rights without due process. He contends that by requiring him to

“apply for further permanency and medical benefits,” employer was

able to “avoid” the burden of overcoming the DIME’s opinion by

clear and convincing evidence, and instead improperly shifted the

burden to him “to prove the cause of his narcolepsy without the

presumptive effect from Dr. Hattem’s DIME opinion.” We are not

persuaded claimant suffered any constitutional deprivation.

18
¶ 30 As we set forth above, claimant’s request for PTD and

maintenance medical benefits raised issues separate and apart from

MMI and impairment, the two areas in which a DIME opinion is

granted presumptive weight. See § 8-42-107(8). No improper

burden shifting occurred here because, under the Act, claimant

bears the burden of proving his entitlement to these benefits. See

§ 8-43-201.

¶ 31 Regardless, we perceive no due process violation here. To

establish a due process claim, a claimant must demonstrate that he

or she has been deprived of a protected right to liberty or property

without due process of law.

The first inquiry in every due process challenge
is whether the plaintiff has been deprived of a
protected interest in “property” or “liberty.” It
is necessary to consider whether a property
right has been identified, whether government
action with respect to that property right
amounted to a deprivation, and whether the
deprivation, if one is found, occurred without
due process of law.

Whatley v. Summit Cty. Bd. of Cty. Comm’rs, 77 P.3d 793, 798 (Colo.

App. 2003) (citation omitted). “A protected interest in property

exists when a person has a legitimate claim of entitlement to the

property.” Id.

19
¶ 32 Here, employer did not admit that claimant was entitled to

PTD and maintenance medical benefits and the ALJ did not award

them. Because no order entitled claimant to these benefits (and no

statutory provisions applied), he had no protected property interest

in them.

¶ 33 To the extent claimant implies that the ALJ’s order finding no

causal link between his work injury and his narcolepsy deprived

him of receiving any benefits, the record suggests otherwise.

Employer filed a FAL admitting to Dr. Hattem’s MMI date and

permanent impairment rating and calculating the PPD benefits to

which claimant was entitled. Nothing in the ALJ’s order limited or

even addressed claimant’s PPD award, and, as we review the record,

claimant should receive it.

¶ 34 Nor can claimant establish the inadequacy of the process

provided him. Due process does not guarantee that claimants will

always receive the benefits they request. Rather, due process

ensures that those benefits — once admitted to or awarded — will

not be taken away without “notice and the opportunity to be heard

by an impartial tribunal.” Wecker v. TBL Excavating, Inc., 908 P.2d

1186, 1188 (Colo. App. 1995). Because claimant had two hearings

20
 on his request for PTD and maintenance medical benefits — at

which he testified, presented witnesses on his behalf, and

introduced hundreds of pages of documentary evidence in support

of his claim — we cannot say that he was denied an opportunity to

be heard.

¶ 35 Accordingly, we conclude claimant was not deprived of his

right to due process. See Whatley, 77 P.3d at 798; Wecker, 908

P.2d at 1188.

IV. Conclusion

¶ 36 The order is affirmed.

JUDGE TERRY and JUDGE J. JONES concur.

21