Bueling v. City Market, Inc., W.C. No. 4-309-813 (ICAO, July 1, 2002): Claimant injured her shoulder in 1996. The treating doctor assigned claimant a 16% upper extremity impairment rating. Respondents filed a FAL for the 16% scheduled rating. Claimant objected to the FAL and obtained a Division-sponsored independent medical examination (DIME). The DIME physician reported that claimant had a 35% extremity rating that was converted to a 21% whole person rating. Respondents did not file a FAL based upon the DIME, nor did they request a hearing to challenge the DIME. Claimant applied for a hearing and sought permanent partial disability (PPD) benefits based upon the DIME's whole person rating, as well as penalties against respondents for failing to comply with C.R.S. § 8-42-107.2(4) and Workers' Compensation Rule of Procedure IV(N)(6). The ALJ awarded claimant PPD benefits based on the whole person rating, and penalized respondents for violating Rule IV(N)(6).
The Industrial Claim Appeals Office (ICAO) affirmed. ICAO rejected respondents' argument that because the treating doctor did not identify any injury to the whole person, claimant had no right to a DIME and the DIME report did not trigger any obligation by respondents to admit liability or apply for a hearing. ICAO conceded that there is no statutory right to a DIME where the claimant has a scheduled injury, but determined that because claimant contested the FAL and "expressly asserted" that she had a whole person impairment, the treating doctor's rating was not dispositive of whether claimant could obtain a DIME. Thus, the DIME's whole person rating triggered respondents' obligation under Rule IV(N)(6) and § 8-42-107.2(4) to file an admission of liability or an application for hearing within 30 days of when the DIME report was mailed.

Clifton, Hook & Bovarnick, P.C., welcomes M. Frances "Fran" McCracken, Esq., as the firm's newest Senior Associate Attorney. Ms. McCracken will be based out of the firm's Grand Junction office. Previously, Ms. McCracken was a shareholder with the firm of Elder & Phillips. She has over a dozen years of workers' compensation experience. Fran graduated magna cum laude with a degree in political science from Mesa State College in 1985, and she earned her law degree from the University of Colorado in 1988. She has been licensed to practice law in Colorado state and federal courts since 1988. She was presented with the Outstanding Young Alumni Award from Mesa State College in 1993, and has served on the boards of directors of several organizations.