One of the main strategies in workers’ compensation claims involves the selection of a particular venue for the DIME process. For numerous years, Rule 11 was silent on the selection of a location for the Division IME. The party requesting the DIME had the option of selecting any venue in Colorado for the appointment to take place. From there, the DIME unit would select 3 physicians in the geographic location that the selecting party indicated on its Application and the DIME process would move forward. Essentially, any part of Colorado was “fair game” as the location in which to have a DIME. From a strategy perspective, selecting a specific geographical location for the DIME to take place could prove advantageous for the requesting party depending on the pool of physicians within that location. For example, it was not uncommon for residents from Fort Collins to request a DIME in Colorado Springs. One of the most common requests involved residents of Grand Junction traveling to Denver for their DIME appointment.
Respondents in certain geographical regions also had the strategy of requesting a pre-emptive DIME on a claim in which the treating physician placed the claimant at MMI with no impairment. For example, if a claimant in Colorado Springs was placed at MMI without impairment and was almost certain to request a DIME in Colorado Springs, Respondents would have the option of going for the DIME themselves as a pre-emptive measure and to take away claimant’s right to select a particular, more liberal venue to have the DIME.
Rule 11 is still silent on the venue for a DIME to take place. However, the recent changes to the Application for a DIME have added a specific portion to the Application form regarding venue selection. On the Application for a DIME, it states as follows, “preferred geographical location of examination. (The location in which the claimant resides may take precedence over the preferred location).” Of note is the use of the word “preferred” and specifically noting that claimant’s residence may take precedence instead of the preferred location selected. This is a new change that the DIME unit is focusing on and it appears in the past several months that the DIME unit is using a reasonableness standard when selecting physicians in a particular geographic location. For example, Respondents may want to challenge a treating physicians’ rating from the western slope and request a DIME in Denver. Gone are the days in which a three-doctor Denver panel was guaranteed. Instead, the DIME unit may put a combination of Denver and western slope physicians on the panel for selection. The process involves many variables as to which physicians are on the panel, including but not limited to, available physicians, specialties, current physicians performing DIMEs, timing, etc.
This new approach by the DIME unit is a topic of discussion and poses many issues. One issue is whether the venue preference will be applied equally to both parties and if bias is removed from the panel selection process. If Respondents are getting physicians from a select geographical location but claimants are not, (and vice-versa), it doesn’t present fairness to the DIME process for both parties. Another issue is the amount of physicians present in one geographic location and whether the pool of DIME physicians throughout the state are performing examinations routinely. For example, if Colorado Springs is frequently selected as a venue, and physicians within that pool are performing DIMEs more frequently than other physicians, does it eliminate the concerns that the new changes to the Rule hoped to address in having a wider variety of physicians participate in the process? Yet another issue is either party wanting a specific venue due to a fact specific reason in the claim, and not particularly receiving it despite the request of one or both parties. The new Rule allows the parties to agree to a number of issues, including the physician to perform the DIME and the cost. However, can the parties agree to a venue when there is a disagreement to the physician and cost?
Major changes to any Rule are usually met with many questions about its implementation. Venue selection for the DIME process has always been a strategic focus for both parties and now poses even more questions based on the changes to the Application for DIME. Now that the DIME unit is exercising some control over the venue selection, it may change the focus of the strategy for the DIME in a different direction. Respondents may want to rely upon the fact that a DIME panel may not entirely be composed of physicians within one region, but instead, focus on the potential for obtaining a panel with more variety that could ultimately impact the case in different ways. Employers and carriers may want to focus the fight on a different aspect of the DIME such as cost. In light of the changes to Rule 11, it is important to discuss the DIME strategy with counsel and the client to ensure that all of the facts and potential options are being discussed to best forward the claim to resolution. Always remember that the Prehearing Unit retains jurisdiction to resolves issues pertaining to the DIME. Once a Motion is filed, the DIME is held in abeyance pursuant to Rule 11. If the parties are able to agree on the venue, it may be worthwhile to reduce the agreement to a stipulated Order and provide a copy of it to the DIME unit so that there is no question as to which physicians can be selected from a certain geographical region.
If you have any questions regarding the changes to the Rules or the updated statutes, feel free to contact any of the attorneys at Lee & Brown, LLC.