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
August 27, 2020

2020COA129

No. 19CA1039, Morris v. ICAO — Labor and Industry —
Workers’ Compensation — Division-Sponsored Independent
Medical Evaluation

In this workers’ compensation case, the division holds that a

DIME’s "findings and determinations," as contemplated by section

8-42-107.2(4)(c), do not include a DIME’s recommendation to

convert a scheduled impairment to a whole person impairment, and

that the insurer and employer do not forfeit their right to challenge

a claimant's request to convert his impairment even if the insurer

and employer do not request a hearing on the issue of conversion

within twenty days of the DIME report.
COLORADO COURT OF APPEALS 2020COA129

Court of Appeals No. 19CA1039
Industrial Claim Appeals Office of the State of Colorado
WC No. 4-980-171

Zachary Morris,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado, Olson Heating &
Plumbing Co., and Pinnacol Assurance,

Respondents.

ORDER AFFIRMED

Division III
Opinion by JUDGE GROVE
Furman and Graham*, JJ., concur

Announced August 27, 2020

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

No Appearance for Respondent Industrial Claim Appeals Office

Harvey Flewelling, Denver, Colorado, for Respondents Pinnacol Assurance and
Olson Heating & Plumbing Co.

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1 In this workers’ compensation action, claimant, Zachary

Morris, seeks review of a final order of the Industrial Claim Appeals

Office (Panel), which affirmed the order of an administrative law

judge (ALJ) denying and dismissing his request for whole person

permanent partial disability (PPD) benefits. We hold that the

“findings and determinations” of a division sponsored independent

medical examination (DIME), as contemplated by section 8-42-

107.2(4)(c), C.R.S. 2019, do not include a DIME’s recommendation

to convert a scheduled impairment to a whole person impairment,

and that the insurer and employer do not forfeit their right to

challenge a claimant’s request to convert his impairment even if the

insurer and employer do not request a hearing on the issue of

conversion within twenty days of the DIME report. Therefore, we

affirm.

I. Background

¶2 Claimant sustained an admitted work-related injury in April

2015, when he slipped on scaffolding. He was treated for his

injuries and diagnosed with a left ankle sprain. Several months

after his fall, claimant also reported pain in his lower back.

Claimant’s treating physician, Dr. Albert Hattem, placed him at

1
 maximum medical improvement (MMI) with no impairment in

March 2016. Because he disagreed with the determination that he

had no permanent impairment, claimant requested a DIME.

¶3 The DIME physician, Dr. J. Stephen Gray, agreed with Dr.

Hattem that claimant reached MMI in March 2016, but assigned

claimant a 14% impairment rating for his left lower extremity,

which Dr. Gray noted could be converted to a 6% impairment of the

whole person. Dr. Gray also recommended that claimant receive

ongoing maintenance medical care.

¶4 In May 2017, claimant’s employer, Olson Heating & Plumbing

Co., and its insurer, Pinnacol Assurance (collectively, employer),

filed a final admission of liability (FAL) based upon Dr. Gray’s DIME

report. However, employer did not admit to Dr. Gray’s converted

6% whole person impairment rating or to his recommendation that

claimant receive post-MMI ongoing maintenance medical care.

Instead, employer admitted to the scheduled 14% permanent

impairment of claimant’s left leg. Claimant objected to the FAL,

arguing that he was entitled to both maintenance medical care and

PPD benefits calculated under Dr. Gray’s recommended 6% whole

person impairment rating.

2
¶5 In November 2017, the ALJ held a hearing on the issue of

future maintenance medical benefits. Although claimant raised the

issue of whole person impairment benefits, the ALJ noted that,

because claimant had not given employer sufficient notice of his

intent to pursue that issue, employer “elected to reserve that issue

for future determination.”

¶6 In a supplemental order issued in March 2018, which

superseded a previous order the ALJ had issued, the ALJ concluded

that employer was not bound by the DIME physician’s

recommendation for future maintenance medical benefits and

denied claimant’s request for ongoing care. The ALJ rejected

claimant’s contention that a DIME physician’s opinions concerning

future maintenance medical treatment are part of the “findings or

determinations” referenced in section 8-42-107.2(4)(c). Rather, the

ALJ held that “the preclusive effect [of a DIME physician’s opinion]

is limited to determinations regarding MMI or whole person medical

impairment.” The Panel affirmed the ALJ’s supplemental order in

early July 2018, but claimant did not seek review of that order in

this court.

3
¶7 Less than a week after the Panel issued its order, claimant

filed a new application for hearing, endorsing the issues of

disfigurement and PPD benefits. Specifically, claimant indicated

that he sought a “whole person rating from the DIME doctor J.

Stephen Gray, M.D.” In a motion for partial summary judgment,

claimant argued that employer was bound by Dr. Gray’s whole

person impairment rating because it had not filed an application for

hearing objecting to the whole person rating and had instead filed a

FAL admitting to the 14% scheduled impairment.

¶8 In a written order denying claimant’s motion, the ALJ ruled

that because the conversion of a scheduled impairment to a whole

person impairment rating is not one of the two areas in which a

DIME opinion carries presumptive weight, employer did not have to

apply for a hearing to challenge the conversion. In particular, the

ALJ ruled that because conversion from a scheduled impairment to

a whole person impairment is not within the scope of a DIME’s

“findings or determinations” under section 8-42-107.2(4)(c),

employer was not required to apply for a hearing to challenge any

impairment rating conversion. Rather, the ALJ wrote, it was

claimant’s

4
 burden to prove, by a preponderance of the
evidence, that he suffered permanent
functional impairment not listed on the
schedule of disabilities. The DIME’s opinion
on that point is not binding, but is simply one
piece of evidence the ALJ will consider in
evaluating whether [c]laimant met his burden.
If [c]laimant proves whole person impairment,
the DIME’s 6% whole person rating is binding
under Leprino [Foods Co. v. Industrial Claim
Appeals Office, 134 P.3d 475, 482 (Colo. App.
2005)]. On the other hand, if [c]laimant fails to
prove whole person impairment, the
appropriate scheduled rating is a factual
matter for determination under the
preponderance standard.

¶9 The matter proceeded to hearing on three issues: (1) claimant’s

entitlement to whole person PPD benefits; (2) claimant’s request for

disfigurement benefits; and (3) employer’s contention that the ALJ

was precluded from considering the PPD claim. The ALJ rejected

employer’s issue preclusion argument but found that claimant had

not shown by a preponderance of the evidence that his functional

impairment extended beyond his left leg. In support of this finding,

the ALJ credited the opinions of Dr. Hattem and a physician

retained by employer, Dr. Mark Paz. Both physicians opined that

claimant’s back pain was unrelated to his left ankle sprain.

Because the ALJ found that claimant’s compensable functional

5
 impairment was limited to the left leg, the ALJ ordered that

claimant’s benefits be calculated according to the schedule codified

in section 8-42-107(2). The ALJ also found that although claimant

demonstrated a limp at the hearing, numerous physicians

“repeatedly documented normal gait.” Based on these findings, the

ALJ denied and dismissed claimant’s request for whole person PPD

and disfigurement benefits.

¶ 10 The Panel upheld the ALJ’s decision, holding that it was

supported by both the law and substantial evidence in the record.

Claimant now appeals the denial of his request for whole person

PPD benefits.

II. Issue Preclusion

¶ 11 Before examining the merits of claimant’s appeal, we address

employer’s contention that claimant’s argument is barred by the

doctrine of issue preclusion. Employer argues that the ALJ’s March

2018 supplemental order denying claimant’s request for post-MMI

maintenance medical benefits precludes claimant’s request that his

impairment rating be converted from a scheduled impairment to an

impairment of the whole person, as the DIME physician

recommended. In the March 2018 supplemental order, the ALJ

6
 ruled that employer was not bound by Dr. Gray’s recommendation

that claimant receive ongoing post-MMI maintenance medical

benefits because that recommendation fell outside the scope of

“findings or determinations” addressed in section 8-42-107.2(4)(c).

The ALJ reasoned that the “findings or determinations” covered by

section 8-42-107.2(4)(c) are limited to those DIME opinions given

preclusive effect by statute — i.e., whole person impairment and

MMI. The Panel agreed, concluding that “the reference in [section]

8-42-107.5(4)(c)1 to ‘findings or determinations’ of the DIME report

are necessarily limited to findings or determinations of MMI or

permanent impairment.” Claimant did not appeal this order, and

employer now argues that he should be barred from seeking whole

person PPD benefits under section 8-42-107.2(4)(c) by the doctrine

of issue preclusion. We disagree.

A. Law Governing Issue Preclusion

¶ 12 An issue involving the same parties may only be decided once.

Under the doctrine of issue preclusion, “once a court has decided

1 The Panel’s reference to section 8-42-107.5 appears to be a
typographical error. The rest of the Panel’s order correctly cites to
section 8-42-107.2(4)(c), C.R.S. 2019.

7
 an issue necessary to its judgment, the decision will preclude

relitigation of that issue in a later action involving a party to the

first case.” People v. Tolbert, 216 P.3d 1, 5 (Colo. App. 2007). Issue

preclusion applies if

(1) the issue sought to be precluded is identical
to an issue actually determined in the prior
proceeding; (2) the party against whom
estoppel is asserted has been a party to or is in
privity with a party to the prior proceeding; (3)
there is 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 issue in the
prior proceeding.

Sunny Acres Villa, Inc. v. Cooper, 25 P.3d 44, 47 (Colo. 2001).

“Issue preclusion applies to administrative proceedings, including

those involving workers’ compensation claims.” Youngs v. Indus.

Claim Appeals Office, 2012 COA 85M, ¶ 52.

¶ 13 The party seeking to preclude an issue from relitigation bears

the burden of establishing the elements of the doctrine. See Allen v.

Martin, 203 P.3d 546, 560 (Colo. App. 2008).

¶ 14 “Issue preclusion . . . presents a question of law that we review

de novo.” Bristol Bay Prods., LLC v. Lampack, 2013 CO 60, ¶ 17.

8
 B. The Issue Is Not Precluded

¶ 15 As employer concedes, “claimant’s argument here deviates

slightly from the argument he asserted previously.” At the

November 2017 hearing, claimant argued that employer was bound

by the DIME physician’s recommendation for post-MMI

maintenance medical benefits. In contrast, in his motion for partial

summary judgment filed in advance of the November 2018 hearing,

claimant maintained that employer was bound by the DIME

physician’s whole person impairment rating. The issues are

similar, as both rely on the ALJ’s interpretation of the scope of

“findings or determinations” under section 8-42-107.2(4)(c), but

they are not identical. The question raised at the November 2017

hearing was whether “findings or determinations” included

post-MMI maintenance medical treatment. If so, then employer

could have been bound by Dr. Gray’s recommendation that

claimant receive ongoing post-MMI maintenance medical benefits.

¶ 16 In contrast, in his motion for partial summary judgment, as on

appeal, claimant argued that employer was bound by Dr. Gray’s

conversion of scheduled impairment to a nonscheduled whole

person impairment because the conversion recommendation fell

9
 within the section 8-42-107.2(4)(c)’s definition of “findings or

determinations.” However, “findings or determinations” could have

incorporated one of Dr. Gray’s recommendations but not the other;

the questions necessitated separate discussion and analysis to

determine whether either maintenance medical benefits or

conversion fell within the purview of “findings or determinations.”

The issues therefore are not identical for issue preclusion purposes.

Employer consequently cannot establish the first prong of the issue

preclusion test. See Sunny Acres Villa, 25 P.3d at 47.

¶ 17 Moreover, although claimant tried to assert his claim for PPD

benefits based on Dr. Gray’s conversion of his scheduled

impairment into a whole person impairment at the November 2017

hearing, the parties and the ALJ agreed to reserve the question for

future consideration. We agree with the ALJ that, under these

circumstances, the question is not precluded.

III. DIME’s Scheduled Impairment Recommendation Not Binding

¶ 18 Having determined that claimant’s primary contention is not

precluded, we now turn to the merits of his appeal. As he argued

before both the ALJ and the Panel, claimant contends employer is

bound by the DIME physician’s whole person impairment rating

10
 because employer did not apply for a hearing contesting it. He

argues that an employer must respond to “any finding or

determination of [a] DIME doctor” within twenty days or the finding

or determination becomes binding. He further argues that the ALJ

and the Panel misinterpreted section 8-42-107.2(4)(c) when they

excluded conversion to a whole person impairment rating from

“findings or determinations.” We are not persuaded that either the

ALJ or the Panel erred.

A. Law Governing Statutory Interpretation

¶ 19 It is the court’s function to decide issues of law, including the

interpretation of statutes. § 24-4-106(7)(d), C.R.S. 2019 (“In all

cases under review, the court shall determine all questions of law

and interpret the statutory and constitutional provisions involved.”).

When we interpret a provision of the Act, if its language is clear “we

interpret the statute according to its plain and ordinary meaning.”

Davison v. Indus. Claim Appeals Office, 84 P.3d 1023, 1029 (Colo.

2004). In addition, “when examining a statute’s language, we give

effect to every word and render none superfluous because we ‘do

not presume that the legislature used language idly and with no

intent that meaning should be given to its language.’” Lombard v.

11
 Colo. Outdoor Educ. Ctr., Inc., 187 P.3d 565, 571 (Colo. 2008)

(quoting Colo. Water Conservation Bd. v. Upper Gunnison River

Water Conservancy Dist., 109 P.3d 585, 597 (Colo. 2005)).

B. Panel and ALJ Did Not Misinterpret Statute

¶ 20 Section 8-42-107.2(4)(c) provides as follows:

Within twenty days after the date of the
mailing of the division’s notice that it has
received the [D]IME’s report, the insurer or
self-insured employer shall either file its
admission of liability pursuant to section 8-43-
203[, C.R.S. 2019,] or request a hearing before
the division contesting one or more of the
[D]IME’s findings or determinations contained
in such report.

Claimant insists that the “findings or determinations” referenced in

this subsection encompass any findings included in a DIME report.

¶ 21 The Panel concluded that the term “findings or

determinations” is limited to a DIME physician’s findings

concerning MMI and whole person permanent impairment.

Consequently, the Panel ruled that employer was not bound by the

DIME physician’s conversion of the 14% scheduled lower extremity

impairment to a 6% whole person impairment and could either file

a final admission or apply for a hearing.

12
¶ 22 We conclude that the Panel’s interpretation is consistent with

the statutory language and legislative intent. First, when we

consider the Workers’ Compensation Act of Colorado (Act) as a

whole, it becomes clear that the legislature did not intend for a

DIME physician’s “findings or determinations” to be unlimited in

scope. In particular, cross-references between section 8-42-107.2,

which governs DIMEs, and section 8-42-107, which governs PPD

benefits, illuminate the meaning and scope of “findings or

determinations.” Addressing MMI, section 8-42-107(8)(b)(II)

provides that “[i]f either party disputes a determination by an

authorized treating physician on the question of whether the

injured worker has or has not reached [MMI], an independent

medical examiner may be selected in accordance with section

8-42-107.2.” (Emphasis added.) Likewise, in the subsection

pertaining to permanent impairment, the statute instructs that

when

there is a determination that permanent
medical impairment has resulted from the
injury, the authorized treating physician shall
determine a medical impairment rating as a
percentage of the whole person. . . . If either
party disputes the authorized treating
physician’s finding of medical impairment, . . .

13
 the parties may select an independent medical
examiner in accordance with section 8-42-
107.2.

§ 8-42-107(8)(c) (emphasis added). These are the only two

“determinations” that the Act expressly permits a DIME physician

to evaluate, and the only two references to DIME “determinations”

in these two statutory sections. Conversion of a scheduled

impairment to a whole person impairment is not so

cross-referenced in the statutes.

¶ 23 Second, close analysis confirms that the two areas referred to

in these statutes as “determinations” are those in which the Act

grants a DIME presumptive effect. As has long been the case, a

DIME physician’s opinions concerning MMI and impairment of the

whole person are binding unless overcome by clear and convincing

evidence. § 8-42-107(8)(b)(III); Meza v. Indus. Claim Appeals Office,

2013 COA 71, ¶ 15. The Act has not granted DIME opinions

presumptive weight in any other areas. Instead, the “opinions of a

DIME physician have only been given presumptive effect when

expressly required by the statute.” Cordova v. Indus. Claim Appeals

Office, 55 P.3d 186, 190 (Colo. App. 2002).

14
¶ 24 The Act “classifies work-related injuries as either scheduled or

non-scheduled injuries. Scheduled injuries are those listed in

[section] 8-42-107(2). Non-scheduled injuries are those that are not

listed or that are excluded from the statutory schedule.” Delaney v.

Indus. Claim Appeals Office, 30 P.3d 691, 693 (Colo. App. 2000).

[A] claimant is limited to a scheduled disability
award if he or she suffers an injury or injuries
described in the schedule set forth in [section]
8-42-107(2). . . . Where a claimant suffers an
injury not enumerated in [section] 8-42-107(2),
the claimant is entitled to whole person
impairment benefits under [section] 8-42-
107(8).

Dillard, 121 P.3d at 304. Nowhere in the Act is a DIME’s

recommendation to convert a scheduled impairment to a whole

person impairment expressly granted any presumptive effect.

¶ 25 Rather, divisions of this court have long entrusted the

conversion of a scheduled injury to a whole person impairment to

the ALJ’s discretionary authority. See Strauch v. PSL Swedish

Healthcare Sys., 917 P.2d 366, 368 (Colo. App. 1996). Whether to

convert a scheduled impairment to an impairment of the whole

person is, thus, a question of fact for the ALJ to decide. Id. And

even though this has long been the stated standard, the legislature

15
 has never added impairment conversions to the short list of

conclusions over which a DIME’s opinion carries presumptive

weight, despite enacting section 8-42-107.2 two years after Strauch

and amending the statute at least six times since. The legislature’s

inaction amounts to tacit approval of the case law imbuing ALJs

with the discretionary authority to decide whether an impairment

rating should be converted. See City of Colorado Springs v. Powell,

156 P.3d 461, 467 (Colo. 2007) (“We regard the General Assembly’s

decision not to alter the definition of ‘sanitation facility’ following

these cases — even though it made several other amendments . . .

after these decisions — as evidence of its acquiescence to the

judicial construction of the terms in those opinions.”); Tompkins v.

DeLeon, 197 Colo. 569, 571, 595 P.2d 242, 243-44 (1979) (“When

the legislature reenacts or amends a statute and does not change a

section previously interpreted by settled judicial construction, it is

presumed that it agrees with judicial construction of the statute.”).

¶ 26 Nor are we persuaded by claimant’s assertion that City Market,

Inc. v. Indus. Claim Appeals Office, 68 P.3d 601 (Colo. App. 2003),

counsels a different result. Even if, as claimant notes, there is a

dearth of cases addressing the question he raises, City Market does

16
 not assist us in our analysis. It is inapposite and factually

distinguishable because there, unlike here, the employer took no

steps to contest the DIME. Having filed neither an application for

hearing nor a FAL, the employer in City Market was bound by the

“findings or determinations” identified in the DIME opinion. Id. at

603 (“When employer received the DIME report, it was required

under the Act and the rule to respond and either admit that the

DIME report was valid or request a hearing at which it could raise

its objections to the report.”). Employer here admitted to the

scheduled impairment recommended by the DIME; it was not

required to do more because claimant bore the burden of proving he

had sustained an injury to his whole person. See Walker v. Jim

Fuoco Motor Co., 942 P.2d 1390, 1392 (Colo. App. 1997).

¶ 27 We agree with the Panel that a DIME’s “findings or

determinations” under section 8-42-107.2(4)(c) do not include

conversion of a scheduled impairment to a nonscheduled

impairment of the whole person. Accordingly, employer was not

bound by Dr. Gray’s suggestion that claimant’s impairment rating

be converted from 14% of the lower extremity to 6% of the whole

person even though it filed a FAL admitting to the scheduled

17
 impairment and did not also file an application for a hearing

contesting the conversion recommendation.

C. The Panel Properly Upheld the ALJ’s Finding that Claimant’s
Injury Fell Under the Schedule of Injuries

¶ 28 To the extent that claimant suggests that the Panel erred by

affirming the ALJ’s finding that his injury was limited to his lower

extremity, we perceive no grounds for setting aside the order on this

basis.

¶ 29 The Act draws a clear distinction between scheduled and

nonscheduled — i.e., whole person — impairment. Injuries either

fall within the schedule codified at section 8-42-107(2) and are

described as scheduled injuries, or they fall outside the scope of the

schedule or are excluded and are considered nonscheduled or

whole person injuries. See Delaney, 30 P.3d at 693; Dillard, 121

P.3d at 304.

¶ 30 When a claimant has sustained a nonscheduled, whole person

impairment, the DIME physician’s rating of that impairment is

granted presumptive weight. See Meza, ¶ 15. However, such

presumptive weight is not granted a DIME physician’s opinion with

respect to scheduled injuries. See Delaney, 30 P.3d at 693

18
 (recognizing that the requirement that “a DIME finding as to

permanent impairment . . . be overcome . . . by clear and convincing

evidence . . . appl[ies] only to non-scheduled impairments”). “When

there is a dispute concerning causation or relatedness in a case

involving only a scheduled impairment, the ALJ will continue to

have jurisdiction to resolve that dispute.” Egan v. Indus. Claim

Appeals Office, 971 P.2d 664, 666 (Colo. App. 1998).

¶ 31 “[W]hether the claimant has suffered a functional impairment

that is listed on the schedule of disabilities is a factual question to

be resolved by the ALJ.” Strauch, 917 P.2d at 368. In other words,

whether to categorize an injury as limited to one body part

enumerated on the schedule set out in section 8-42-107(2) or to

rate it as an impairment of the whole person is a question of fact for

the ALJ. If an ALJ determines that an injury warrants a whole

person rating and should not be limited to the statutory schedule,

any whole person rating calculated by the DIME physician would be

granted presumptive weight. As explained in Strauch,

the determination whether the claimant has
suffered a functional impairment that is listed
on the schedule of disabilities is a factual
question to be resolved by the ALJ. This
determination is distinct from, and should not

19
 be confused with, the treating physician’s
rating of physical impairment under the AMA
Guides.

Id. (citation omitted). The claimant bears the burden of establishing

entitlement to a nonscheduled, whole person impairment rating.

See Walker, 942 P.2d at 1392 (upholding ALJ’s finding that the

claimant failed to prove entitlement to PPD benefits calculated

based on a whole person impairment rating because finding was

supported by substantial evidence).

¶ 32 “[T]he situs of the functional impairment, not the situs of the

initial harm” determines whether claimant’s injury falls under the

schedule or should be calculated based upon an impairment of the

whole person. Strauch, 917 P.2d at 369. Thus, the ALJ had the

sole discretion to decide whether claimant met his burden of

demonstrating that his injury extended beyond his leg to his back

and should be calculated at the 6% whole person impairment rating

as converted by the DIME physician, Dr. Gray. The ALJ found,

though, that claimant had not met his burden and that his injury

was limited to his left leg. Because that determination was factual

and fell squarely within the ALJ’s purview, the Panel had to uphold

it if it was supported by substantial evidence in the record. See

20
 Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883, 884

(Colo. App. 1996) (holding that the question whether a claimant’s

impairment falls within the schedule of benefits is one of fact for the

ALJ). And, as set out in his order, the ALJ’s finding was supported

by the opinions of both Dr. Hattem and Dr. Paz.

¶ 33 Because substantial evidence supports the ALJ’s finding that

claimant’s work-related injury was limited to his left lower extremity

and did not extend to his back, the Panel properly upheld the ALJ’s

determination that claimant sustained a scheduled impairment

under section 8-42-107(2). Id.

IV. Conclusion

¶ 34 The order is affirmed.

JUDGE FURMAN and JUDGE GRAHAM concur.

21