W.C. No. 4-278-799Industrial Claim Appeals Office.
December 9, 1996
FINAL ORDER
The respondent has appealed an order issued by the Director of the Division of Workers’ Compensation (Director) which denied the respondent’s Motion to Reconsider a previous order that required the respondent to reinstate temporary disability benefits. We affirm.
In December 1995, the respondent admitted liability for temporary total disability benefits from November 14, 1995 and continuing. In April 1996, benefits were unilaterally terminated based on the April 8, 1996 report of Dr. Kornel, the authorized treating physician, which stated that the claimant had attained maximum medical improvement (MMI) as of March 4, 1996. On May 24, 1996, the Director issued an order which required the respondent to reinstate temporary total disability benefits because the respondent had not complied with the Workers’ Compensation Rules of Procedure (Rules); specifically Rule IV(G)(1) (1994) and Rule IX(C)(1)(a) (1993) [both subsequently amended]. Rule IV(G)(1) provided:
Whenever an insurance carrier terminates temporary disability benefits pursuant to Rule IX on the grounds the claimant has reached maximum medical improvement, the admission of liability form shall contain an admission for permanent disability benefits, if any.
Further, Rule IX(C)(1) provided:
In all claims based upon an injury or disease which occurred on or after July 1, 1991, an insurance carrier may terminate temporary disability benefits without a hearing by filing an admission of liability form with: (a) a medical report from an authorized treating physician who has provided the primary care stating the claimant has reached maximum medical improvement; provided such admission of liability shall state a position on permanent disability benefits as provided in Rule IV, G. This paragraph shall not apply in cases where vocational rehabilitation has been offered and accepted.
The Director found that the respondent did not initially file an admission of liability. Further, the Director found that an admission subsequently filed on May 17, 1996, did not comply with the requirement that the respondent take a position on, or admit liability for permanent disability, if any. In pertinent part, the admission stated: “Respondent has applied for a Div. IME as Claimant received treatment in New York. If any permanency is awarded, it will be paid after rating is received, less [a credit for overpaid temporary disability benefits].” Citing a prior opinion we issued in O’Grady v. Denver Public Schools,
W.C. No. 4-151-533, (November 18, 1994), the Director found that in order to comply with the above rules, the respondent was required to state whether or not the claimant had permanent impairment at the time benefits were terminated. Further, noting that there was no other applicable authority for the unilateral termination of benefits, the Director ordered the respondent to reinstate benefits.
Thereafter, the respondent timely filed a “Motion To Reconsider Director’s Order,” asserting that the unilateral termination was proper because § 8-42-105(3), C.R.S. (1996 Cum. Supp.), provides for the termination of temporary disability benefits upon the claimant’s attainment of MMI. The respondent further argued that its statement on the admission was sufficient to comply with the Rule IX requirement for “a position on permanent disability benefits,” given the fact that Dr. Kornel, a New York physician, was ineligible to render a permanent disability rating and an IME for this purpose had been requested See Rule IV(N)(4)(d) (1994) [if none of the treating physicians has a level II accreditation, the carrier shall have twenty days to request a Division IME in order to ascertain the claimant’s medical impairment]. However, the Director was not persuaded by these arguments, and therefore denied the motion. This appeal followed.
In O’Grady v. Denver Public Schools, supra, we considered an almost identical issue. That case involved an injury which occurred prior to July 1, 1991, so Rule IX(B)(1)(a), rather than Rule IX(C)(1)(a), was applicable. Except for the date of injury, the requirements of these rules are the same. Therefore, we conclude that the rationale enunciated in th O’Grady opinion is also applicable here. Further, we note that the Director has relied on that interpretation of the rules with implicit approval, so we decline to depart from the views expressed therein. Cf. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995) (statutes must be construed in a manner which furthers the legislative intent) Travelers Indemnity Co. v. Barnes, 552 P.2d 300 (1976) Ettelman v. Colorado State Board of Accountancy, 849 P.2d 795 (Colo.App. 1992) (deference should be given to construction of statutes by administrative agency charged with enforcement).
Interpretation of rules is subject to the ordinary principles of statutory construction, so we are obliged to construe the rules in a manner which furthers the Director’s intent. In ascertaining the intent of the rules here, we must first consider the language of the rules and give words their plain and ordinary meaning unless the result would be absurd See Snyder Oil Co. v Embree, 862 P.2d 259 (Colo. 1993). The plain language of Rule IV(G)(1) contemplates that insurers who unilaterally terminate temporary total disability benefits in the absence of a hearing must first ascertain whether or not the claimant has any permanent disability, and admit liability accordingly. The use of the word “shall” in Rule IV(G)(1) conveys that insurers have a mandatory obligation to determine whether or not the claimant has permanent disability, prior to unilaterally terminating temporary disability benefits. See Hillebrand Construction Co. v. Worf, 780 P.2d 24 (Colo.App. 1989). Although Rule IX(C)(1) requires that insurers “state a position on permanent disability,” this rule expressly requires conformance with Rule IV(G). Therefore, Rules IV(G) and IX(C)(1) must be read in conjunction with each other, and we conclude that Rule IX(C)(1) also contemplates that respondents admit or deny liability for permanent disability. The purpose of these rules is to afford insurers an opportunity for unilateral termination of temporary disability benefits, if claimants will continue to receive any permanent disability benefits admittedly due, without the interruption that could accompany a pending hearing. It would be inconsistent with this purpose to conclude that the respondent here satisfied the requirement to “take a position on permanent disability” by essentially stating that the respondent’s position will be deferred until after an impairment rating is received.
Although the right to temporary disability benefits terminates when a claimant attains MMI, see §8-42-105 and § 8-42-106, C.R.S. (1996 Cum. Supp.), the respondent does not have a statutory right t unilaterally terminate temporary disability benefits. Rather, this is a privilege accorded by the rules. See A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988). The rules at issue here do not contravene the statute because the respondent can seek an order to permit the termination of temporary disability benefits. There is no requirement that a rule be promulgated to provide for unilateral termination of temporary disability benefits in every scenario. Since the respondent did not satisfy all of the requirements for unilateral termination imposed by the rules, it was obligated to continue payment of temporary total disability benefits in accordance with its admission of liability. See Vargo v. Industrial Commission, 626 P.2d 1164 (Colo.App. 1981). It follows that there is no error in the Director’s order for reinstatement of those benefits, and the denial of the respondent’s motion for reconsideration.
The respondent’s remaining arguments are not persuasive. Although the record does not contain a written objection to the termination filed by the claimant, Rule IX(H)(2) (1993) does not expressly require a written objection. In any event, Rule IX(H)(1) provides that temporary disability benefits may not be terminated except as provided by Rule IX or pursuant to an order following a hearing. Therefore, we conclude that the Director had the implicit authority to enforce the rules upon receiving verbal information from the claimant that benefits had been terminated. Cf. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989) (Panel has the authority to consider petition for review that does not comply with the statutory requirement to specify alleged errors in detail).
Further, our decision in Rodriguez v. Premier Care Service, W.C. 4-169-533, relied upon by the respondent, is inapposite. That case concerned whether an administrative law judge properly determined that the claimant was not entitled to additional temporary disability benefits after the claimant admittedly reached MMI. Whether the respondents in that case complied with the requirements for unilateral termination was not in issue.
IT IS THEREFORE ORDERED that the Director’s orders issued June 28, 1996 and May 24, 1996, are affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Dona Halsey ___________________________________ Bill Whitacre
NOTICE
This order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to § 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this order were mailed December 9, 1996 to the following parties:
James R. Schede, 425 W. William St., Portchester, NY 10573
Monfort, Inc., ATTN: Julie Krantz, P.O. Box G, Greeley, CO 80631
Kim Dale Starr, Esq., 2629 Redwing Rd., Ste. 330, Ft. Collins, CO 80526 (For the Respondent)
By: ___________________________________