Friday, May 13, 2011
Munoz Court Case on DIME waiver
The Court of Appeals decided yesterday to reverse ICAP and the hearing judge on an issue concerning seeking a DIME. The claimant requested a DIME to review the treating doctors opinion. A DIME is a Division Independent Medical Examination which involves a process to select a doctor to conduct the examination on various medical matters such as MMI and impairment. In Munoz the claimant sought a DIME and requested a specific type of doctor. However that was not provided so he applied for a hearing to address the selection. In the meantime he did not schedule the appointment with the physician in question then set to do the DIME. Instead he filed a second application seeking penalties against the state agency for not staying the matter pending resolution of his hearing issue A hearing judge and ICAP decided he had not stayed the process by filing an application for hearing so he lost by waiver his right to seek the DIME. The claimant argued the application for hearing was sufficient to stay the DIME process. The judge and ICAP decided any stay had to be by law a motion and an application did not do it. They concluded he waived his right by not filing the motion. The appellate court reversed ICAP and determined an application for hearing was good enough to preserve the claimants right to have his DIME concerns addressed before proceeding. This appeal was more complicated then what I have indicated as it was argued the claimant did not even preserve his right to appeal and also the claimant wanted to penalize the state Division of Workers Compensation for not staying the process when he sought a hearing. Usually appeals are not simplistic but the key part of the decision involved a claimants right to stay a DIME process to address his concerns on the selection process. You can read the case here.