IN THE MATTER OF THE CLAIM OF STEVEN E. ACKER, Claimant, v. JEFFERSON COUNTY, Employer, and SELF-INSURED, Insurer, Respondent.

W.C. No. 4-201-155Industrial Claim Appeals Office.
March 20, 1996

FINAL ORDER

This matter has been transmitted for review of orders issued by Administrative Law Judge Friend (ALJ) on August 1, 1995, September 20, 1995 and October 4, 1995. We affirm.

A brief procedural history is necessary to understand the issues on review. On July 14, 1995 the ALJ issued a Corrected Summary Order which awarded permanent partial disability benefits based upon medical impairment of 14 percent of the whole person. The respondent timely appealed the ALJ’s order. Specific Findings of Fact were entered on August 1, 1995.

On July 26, 1995, after issuance of the Corrected Summary Order but prior to the entry of specific findings of fact, the respondent filed a Final Admission of Liability for permanent partial disability benefits consistent with the ALJ’s order. The claimant moved to dismiss the respondent’s appeal in view of the Final Admission of Liability. The ALJ granted the claimant’s motion on September 1, 1995.

On September 8, 1995, the respondent moved to withdraw the July 26 Final Admission. The ALJ determined that an “error or mistake” was made in the July 26 Final Admission of Liability, and therefore, granted the respondent’s motion on September 20, 1995. Thereafter, the respondent filed a motion requesting that the ALJ “reconsider” his September 1 order. The ALJ granted that motion on October 4, 1995. The claimant then timely appealed the September 20 and October 4 orders.

I.

Initially we reject the claimant’s contention that we lack jurisdiction because the respondent did not file a timely petition to review the dismissal of its appeal. Admittedly, the respondent’s “Motion to Reconsider Order Dismissing Petition to Review” was not filed within twenty days of the September 1, 1995 order. However, the respondent’s September 8 “Motion To Withdraw Final Admission of Liability” reflects the respondent’s dissatisfaction with the ALJ’s order dismissing its timely appeal of the August 1 order, and its desire to proceed with the appeal. Regardless of how the pleading is captioned, we consider the September 8 pleading to be a sufficient, timely notice of its request for review of the ALJ’s September 1, 1995 order. Section 8-43-301(2), C.R.S. (1995 Cum. Supp.); Miller v. Industrial Commission, 28 Colo. App. 462, 474 P.2d 177 (1970). Therefore, the ALJ’s September 1 order is not final and the ALJ’s August 1 order is properly before us on review.

II.

The ALJ’s August 1 order was based upon the following findings of fact. Dr. Basse conducted a Division sponsored independent medical examination (IME) pursuant to § 8-42-107(8)(c), C.R.S. (1995 Cum. Supp.). Dr. Basse’s medical impairment rating is set forth in a report dated January 30, 1995, where she rates the claimant’s permanent medical impairment as 14 percent of the whole person. On May 17, 1995, in a letter to Dr. Mueller of the Division of Workers’ Compensation (Division), Dr. Basse rated the claimant’s impairment as 11 percent of the whole person.

The ALJ further determined that the parties presented no evidence concerning the reasoning which caused Dr. Basse to change her impairment rating, and therefore, the ALJ determined that the respondent failed to overcome Dr. Basse’s January 30 report by “clear and convincing” evidence. Consequently, the ALJ ordered the respondent to pay medical impairment benefits in accordance with Dr. Basse’s January 30 impairment rating.

The respondent contests the ALJ’s order based on its assertion that Dr. Basse’s May 17 impairment rating “superseded” and “replaced” the January 30 report. Accordingly, the respondent argues that, as a matter of law, the May 17 impairment rating is binding unless overcome by clear and convincing evidence. We reject this argument.

The process for conducting an IME under § 8-42-107(8)(c) is set forth in the Rules of Procedure adopted by the Director of the Division of Workers’ Compensation (Director). Although not the equivalent of a statute, the rules have the force and effect of law. Cornerstone Partners v. Industrial Claim Appeals Office, 830 P.2d 1148 (Colo.App. 1992). Therefore, we must generally defer to the Director’s rules which amplify how and when an IME physician is to determine medical impairment. See City County of Denver v. Industrial Commission, 690 P.2d 199 (Colo. 1984).

Insofar as pertinent, Rule XIV(L)(2)(b) (e), 7 Code Colo. Sess. 1101-3 at 77.03 (adopted 7/20/94 effective 8/30/94) [amended 8/8/95 effective 9/30/95], requires the IME physician to submit a report to “all parties” within fifteen days of the medical examination of the claimant. Furthermore, Rule XIV(L)(2)(k) provides that the IME report shall be submitted without communication from the parties except “when setting the appointment, by deposition, or approved by the Director.” Porras v. World Service Co., Inc., W.C. No. 4-155-161, October 12, 1995. The only exception provided by the rule is:

“if the Division receives written consent signed by both parties attached to written communication for the IME panel physician, which would then be forwarded to the physician by the Division; or if all parties and the physician agree on oral communication.”

Here, there is no assertion, finding or evidence that Dr. Basse’s May 17 letter was issued within 15 days of her examination. Counsel for both parties also agreed that the May 17 letter was not provided to the parties until June 1995. (Tr. pp. 5, 8). Similarly there is no assertion nor finding that Dr. Basse’s May 17 letter was the result of communication during a deposition, “the examination,” or “approved by the Director.”

Rather, it is undisputed that Dr. Basse’s May 17 letter was prompted by a letter from the respondent’s adjuster to the Division concerning the respondent’s dissatisfaction with Dr. Basse’s January 30 impairment rating. (Tr. p. 3, lines 5-14; p. 4, lines 14-25). In turn, Dr. Mueller wrote to Dr. Basse concerning the respondent’s criticism and later contacted Dr. Basse by telephone. (Division letter April 12, 1995; Dr. Basse correspondence May 17, 1995). As a result of Dr. Mueller’s letter and telephone call, Dr. Basse issued her May 17 letter to Dr. Mueller.

These facts result in a conclusion that the communication which prompted Dr. Basse’s May 17 letter does not fall within an exception to the rule that IME’s must be completed without communication from the parties. It follows that the May 17 letter was not issued in accordance with the procedural requirements for IMEs. Therefore, we conclude as a matter of law that Dr. Basse’s May 17 letter does not constitute Dr. Basse’s medical impairment “finding” within the meaning of § 8-42-107(8)(c). To conclude otherwise would eviscerate the requirements adopted by the Director for the express purpose of ensuring “fair and unbiased Division IMEs.” Rule XIV(L)(2)(k) at 77.04. See Standard Metals Corp. v. Gallegos, 781 P.2d 142 (Colo.App. 1989); Saxton v. Industrial Commission, 41 Colo. App. 309, 584 P.2d 638 (1978) (we may impose consequences for failure to follow administrative rules).

However, even if the May 17 letter could be construed as the IME physician’s “finding” concerning medical impairment, we consider the parties’ dispute concerning when Dr. Basse issued a “finding” of medical impairment to be a factual issue for resolution by the ALJ. See Rohr v. Interim Health Care, W.C. No. 4-177-445, September 13, 1994; Murphy v. Lower Valley Hospital Association, W.C. No. 3-101-327, June 23, 1995; Keesee v. Dack’s Texturing Services, W.C. No. 4-156-633, December 30, 1994.

Dr. Basse’s January 30 report states that the claimant has impairment of 10 percent due to prolonged low back pain, 2 percent for a second surgical procedure, 1 percent for second level involvement, and 17 percent based upon “valid” range of motion measurements, for a total impairment of 28 percent of the whole person. Dr. Basse then apportioned 50 percent of the claimant’s impairment to pre-existing factors, resulting in an impairment of 14 percent from the industrial injury.

Dr. Basse’s May 17 letter to Dr. Mueller states that the “revised” impairment rating is based upon Dr. Mueller’s April 13 letter and a subsequent telephone conversation with Dr. Mueller. However, the record does not contain the April 13 letter, and Dr. Basse’s May 17 correspondence does not indicate the content of the April 13 letter. Neither does the May 17 correspondence indicate the nature of the telephone conversation with Dr. Mueller.

The May 17 letter also states that the claimant’s range of motion measurements were “invalid.” However, the letter does not state the basis for this determination.

Furthermore, neither party presented any testimony at the June 28 hearing before the ALJ, to explain Dr. Basse’s change of opinion. In fact, counsel for the respondent admitted that he did not know the basis for Dr. Basse’s change of opinion. (Tr. pp. 11, 12). Accordingly, the record supports the ALJ’s determination that no evidence was presented of the conversation between Dr. Mueller and Dr. Basse, or why the range of motion measurements which Dr. Basse reported as “valid” on January 30, 1995 were determined to be “invalid” on May 17.

Concerning the “revised” impairment rating, Dr. Basse’s May 17 letter also states:

“As you and I have discussed on the phone, my feelings are that for Mr. Acker this is very unfair . . . . . In this particular gentleman, in my opinion, attribution of impairment, rather than apportionment, does not result in a fair impairment.”

Under these circumstances, the ALJ could logically infer that the May 17 did not reflect Dr. Basse’s medical impairment rating. Moreover, this inference supports the ALJ’s determination that the January 30 impairment rating, and not the May 17 rating was Dr. Basse’s “finding” of medical impairment within the meaning of § 8-42-107(8)(c).

For the same reasons, the ALJ could, and did infer that the May 17 report does not constitute “clear and convincing” evidence to overcome the January 30 impairment rating. Metro Moving Storage Co. v. Gussert, ___ P.2d ___ (Colo.App. No. 94CA1926, June 15, 1995) (whether the IME is overcome by clear and convincing evidence is a factual determination). Therefore, we may not interfere with the ALJ’s award of medical impairment benefits in accordance with Dr. Basse’s January 30 impairment rating.

III.

As a consequence of our disposition the claimant’s argument that the ALJ erred in allowing the respondent to withdraw its July 26 Final Admission of Liability, is moot. In any case, the claimant mistakenly asserts that an admission may not be withdrawn in the absence of “fraud.” The ALJ may, as he did here, grant “prospective” relief from an admission based upon “mistake.” HLJ Management Group v. Kim, 804 P.2d 250 (Colo.App. 1990).

IT IS THEREFORE ORDERED that the ALJ’s orders dated August 1, 1995, September 20, 1995 and October 4, 1995 are affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

_____
David Cain

_____
Kathy E. Dean

NOTICE

This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).

Copies of this decision were mailed March 20, 1996 to the following parties:

Steven E. Acker, 4960 Dove St., Arvada, Co 80002

Jefferson County, 100 Jefferson County, % Alexsis, Inc., 1099 18th St., #3050, Denver, CO 80202-1930

C.D.S. of Colorado, Attn: Steve Abeyta, Claims Adjuster, 4600 S. Ulster St., #700, Denver, CO 80237

Patricia W. Gilbert, Assistant County Attorney, 100 Jefferson County Parkway, Golden, CO 80419-5577

Samuel H. Collins, Esq., 155 S. Madison, Ste. 330, Denver, CO 80209-3014

(For the Claimant)

BY: _____