Physicians are allowed to find an injured worker suffers from no permanent disability without having to examine them in person, the state’s second-highest court ruled last month.

A three-judge panel for the Court of Appeals emphasized a doctor’s conclusion about a patient’s impairment, based solely on paperwork, is “not the preferred way” to do things. Nonetheless, Colorado law does not require the doctor to physically examine the patient before making their findings.

“Such a policy decision rests with the General Assembly,” wrote Judge Timothy J. Schutz in the panel’s June 29 opinion.

The question arose after the COVID-19 pandemic rendered a physician unable to travel to Durango to evaluate a bus driver who was injured on the job. Keith Rosten slipped on an icy parking lot in January 2020 and hit his head. He received treatment for his injuries through Centura.

Later that year, Rosten reached his maximum level of improvement and was set to receive a physician’s permanent disability rating. Shortly afterward, Rosten’s physician left Centura. The doctor who succeeded him, Thomas Centi, was unable to travel to Durango because Centura’s pandemic policy prohibited the trip. At the time, there was no ability for a virtual visit, either.

Instead, Centi reviewed Rosten’s medical records and concluded Rosten suffered from no permanent impairment from his work injuries.

Case: Rosten v. Industrial Claim Appeals Office

Decided: June 29, 2023

Jurisdiction: Industrial Claim Appeals Office

Ruling: 3-0

Judges: Timothy J. Schutz (author)

Elizabeth L. Harris

Lino S. Lipinsky de Orlov

Rosten attempted to request a second evaluation in his workers’ compensation case, but he submitted the application too late. Rosten then challenged the validity of Centi’s conclusion, due to the doctor’s reliance solely on paperwork with no accompanying exam.

“Although relying upon prior medical records may not be the ‘best practice,'” acknowledged Administrative Law Judge Cassandra M. Sidanycz, there was “no requirement in the statute” that Centi examine Rosten in person before declaring him not impaired.

Rosten turned to the Court of Appeals, where the panel of judges heard differing accounts of how the workers’ compensation system normally handles disability determinations.

“There’s going to be doctors that don’t know what’s happening on a case all the time. They may not know what another doctor said. It happens all the time,” argued Brad J. Miller, an attorney for Durango. “I can tell you I’m in court all the time where treating doctors have not seen all kinds of evidence.”

“That is not the truth,” insisted Bethiah Beale Crane, the lawyer for Rosten. “I live in a different world than the world presented to you by opposing counsel.”

The Court of Appeals judges pointed out Colorado law does not explicitly address the need for in-person exams before a doctor finds there is no permanent disability.

“What is the statutory provision that has been violated by the doctor’s failure to conduct the in-person exam?” asked Judge Elizabeth L. Harris.

There is no provision, admitted Crane. But, by the same token, there is “nothing that allows Dr. Centi to step in and say, ‘Oh, COVID doesn’t allow me to actually see the patient and I’m just going to do this remote record review only.'”

The law did provide one clue about the legislature’s intent: Injured workers who live out of state are allowed to receive an impairment rating based on paperwork only.

“Doesn’t that tell us, logically, that if the claimant is in state,” observed Judge Lino S. Lipinsky de Orlov, “the claimant is entitled to an in-person examination by the physician?”

Ultimately, the Court of Appeals declined to find any requirement for in-person examinations in the absence of any explicit direction. The panel chided Centi for creating a “misimpression” with his report that he evaluated Rosten in person, and it called the records review “not the preferred way” to reach an impairment rating.

Still, wrote Schutz, the law and regulations “do not mandate that a physician perform an in-person examination.”

Larry Saunders, an attorney who represents injured employees in workers’ compensation cases, said that in some circumstances, a paperwork-only evaluation may make sense.

“What if Dr. Centi took over the case and the records indicated, from the claimant’s own comments on a pain diagram, that he was perfectly fine, pain free and felt normal?” Saunders said. “I don’t think there would be a problem.”

The case is Rosten v. Industrial Claim Appeals Office.