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DIME's opinion meaningless after reopening

City and County of Denver v. ICAO, 02CA0322 (September 26, 2002): Claimant was injured in 1998. Upon reaching maximum medical improvement (MMI) in 1999, claimant received an impairment rating of 26 percent of the whole person. Employer filed a final admission of liability for permanent medical impairment benefits, claimant received the award in a discounted lump sum, and the claim was closed. After the treating physician prescribed additional treatment, claimant petitioned to reopen the case based on a worsened condition. Claimant was again placed at MMI in 2000, this time with a rating of only 9 percent, which was issued by a different treating physician. Employer then filed a claim for overpayment of benefits based on the difference between the two ratings, which was $23,412. Claimant challenged the 9 percent rating and requested a division-sponsored independent medical exam (DIME). The DIME physician rated claimant's impairment at 0 percent, based on his opinion that the claimant's accident was not severe enough to cause injury to claimant. Employer then claimed an additional overpayment of benefits, which now totaled $43,312.
Following a hearing on the issue of whether employer was entitled to recoup the alleged overpayments, Administrative Law Judge Felter (ALJ) found that there was no persuasive evidence that the minimal treatment claimant received after reopening resulted in any improvement in claimant's degree of permanent impairment. The ALJ attributed the different ratings to "differences of opinion" and not claimant's actual improvement. He rejected employer's claim for overpayment.
The court of appeals affirmed. The court held that the DIME physician's opinion addressed the original causation issue that had already been resolved, and was no longer open to question. The DIME physician's opinion was not admissible as proof of the employer's entitlement to overpayment. Thus, employer failed to satisfy its burden of proof that it was entitled to an overpayment. The burden never shifted to claimant. Finally, the court upheld the ALJ's finding that the 26 percent and 9 percent ratings were only a difference of opinions and not evidence of actual improvement that would entitle employer to reimbursement for an overpayment.

New Federal Guidelines Protecting Privacy
Interests in Medical Records

By Clyde E. Hook, Esq.

Effective April 14, 2003, health care providers must implement regulations required by the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) that will limit access to patients' medical records. Access to records via authorizations signed by patients remains the primary tool. Two exceptions to new stringent guidelines for "authorizations" exist for (1) employers "evaluating whether the individual has a work-related illness or injury," and (2) access through judicial or administrative proceedings.
The usual initial claim investigation process of gathering medical records from providers, other than employer-funded providers, will need to anticipate the privacy constraints placed on the medical sector. For example, the regulations require that "valid authorizations" must contain a number of "core elements," including: "A description of the information to be used or disclosed that identifies the information in a specific and meaningful fashion." Further, the release/authorization must have "required statements" placing the patient on notice of (1) the right to revoke the release, (2) whether treatment is conditioned on the patient signing the authorization, and (3) the potential for redisclosure by the recipient.
We can anticipate that once a claimant retains counsel, securing a release may become more complicated. HIPAA provides a patient the right to a protective order or stipulation concerning the scope of the authorization to preclude disclosure of medical information unrelated to the alleged disease or injury. In a recent Division of Workers' Compensation bulletin, concern was expressed about the impact of the new regulations on the workers' compensation system. Providers may edit medical records to comply with the requirement that they disclose the "minimum amount of protected health information necessary" where treatment is not patently related to the disease or injury.  Also, carrier representatives are warned to exercise care in releasing "unrelated" information to others, including "other parties in a workers compensation case."
Please feel free to contact our office for further details and assistance on this topic.

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