W.C. No. 4-62-927Industrial Claim Appeals Office.
September 24, 2002
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which vacated the claimant’s application for hearing on the issue of permanent impairment. We set aside the order and remand for further proceedings.
In 2000 the claimant suffered a compensable injury. In a report dated November 27, 2001, Dr. Hall assigned 17 percent impairment to the lower extremities, 16 percent to the upper extremities and 10 percent to the cervical spine, which he converted to 24 percent whole person impairment. Dr. Hall added:
“This impairment rating of 24% does not include a rating for psychologic problems, which I believe would increase the rating by a minimum of 5% nor have I made a deduction for his preexisting left knee workman compensation problems, secondary to surgery performed by Dr. Berkeley in 1992. Such a deduction should be made before a final impairment rating is made. I’ll be glad to do it if the impairment of 1992 can be obtained for me to do so.”
Based upon Dr. Hall’s report, the respondent filed a Final Admission of Liability dated January 9, 2002, which admitted liability for 17 percent impairment of the lower extremity, 16 percent impairment of the upper extremities and 10 percent whole person impairment. The claimant timely objected and applied for a hearing to determine whether Dr. Hall’s November 27 report was a final impairment rating. The claimant also requested a finding that the January Final Admission was prematurely filed and did not trigger the time period for requesting a Division-sponsored independent medical examination (DIME) under §8-42-107.2(2)(a), C.R.S. 2001.
Thereafter, the claimant’s attorney notified Dr. Hall by letter dated February 6, 2002, that Dr. Feinsinger had assigned a 3 percent rating for psychological impairment and Dr. Dean assigned 4 percent whole person impairment for a head injury. The claimant’s attorney also advised Dr. Hall that the 1992 injury was rated as 15 percent impairment to the lower extremity. On February 7, 2002, Dr. Hall replied that he agreed with the ratings of Dr. Feinsinger and Dr. Dean. Further, he opined the claimant’s combined rating from all impairments, inclusive of a deduction for preexisting impairment was 27 percent whole person impairment. The respondent did not file an amended final admission upon receipt of Dr. Hall’s February 7 statement, based in part on grounds that Dr. Dean is not a Level II accredited physician for purposes of rating medical impairment.
The matter then proceeded to a prehearing conference. In a Prehearing Order dated March 21, 2002, a Prehearing ALJ determined the Final Admission was not premature. The Prehearing ALJ also granted the respondent’s request for a protective order which relieved the respondent of a duty to file an amended final admission consistent with Dr. Hall’s February 7 report until it was determined whether Dr. Hall’s 27 percent whole person impairment rating was consistent with the rating requirements of § 8-42-107(8)(c), C.R.S. 2001. Further, the Prehearing ALJ vacated the claimant’s Application for Hearing on grounds it was an attempt to circumvent the DIME process. However, the Prehearing ALJ determined the time period for requesting a DIME was tolled by “ambiguities” in Dr. Hall’s November 27 report. Therefore, the Prehearing ALJ granted the claimant 30 days to apply for a DIME to dispute Dr. Hall’s rating.
The claimant sought review of the Prehearing ALJ’s order from the ALJ. On April 25, 2002, the ALJ summarily affirmed the Prehearing Order. This appeal followed.
On appeal the claimant contends, inter alia, that by denying his request for a hearing to resolve ambiguities in Dr. Hall’s November 27 report, he was denied due process. We agree.
The ALJ implicitly upheld the Prehearing ALJ’s determination that the claimant was not entitled to a hearing on the issue of permanent impairment prior to completion of a DIME. Because it is the ALJ’s order, not the Prehearing ALJ’s order, which is on review, we need not consider the claimant’s arguments that the Prehearing Order exceeded the Prehearing ALJ’s jurisdiction.
We also note the respondent’s contention the ALJ’s order is interlocutory and not currently subject of review. We disagree.
Under § 8-43-301(2), C.R.S. 2001, a party dissatisfied with an order “which requires any party to pay a penalty or benefits or denies a claimant a benefit or penalty,” may file a petition to review. Orders which do not require the payment of benefits or penalties, or deny the claimant benefits or penalties are interlocutory and not subject to review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989).
As a general matter, an order which strikes an application for hearing for failure to complete the DIME process is not an appealable order because such an order does not award or deny a penalty or benefit American Express v. Industrial Commission, 712 P.2d 1132 (Colo.App. 1985). However, here the claimant asserts that he is not required to obtain a DIME to “dispute” Dr. Hall’s rating until the exact nature of Dr. Hall’s rating has been determined after an evidentiary hearing. The effect of the ALJ’s order is to deny the claimant an opportunity to resolve the merits of his claim for permanent partial disability benefits unless he first incurs the cost of a DIME which, if the claimant is correct, is not a prerequisite to a hearing. Under similar circumstances, we have previously concluded the ALJ’s order is tantamount to a denial of benefits, and thus, is reviewable. See Daniels v. WCM Industries, W.C. No. 4-456-886 (March 14, 2002); Meza v. ConAgra Beef Co., W.C. No. 4-444-220 (December 11, 2000); Manzanares v. Quality Linen and Supply, W.C. No. 4-253-807 (October 5, 1999) (order denying hearing on apportionment of permanent impairment absent a DIME was final order) see also Carreon v. Monfort Inc., W.C. No. 4-140-621 (December 19, 1994). We adhere to our prior conclusion. Therefore, the ALJ’s order is a final order for purposes of § 8-43-301(2), and we shall consider the claimant’s substantive arguments.
Section 8-42-107(8)(c), C.R.S. 2001, provides that after an authorized treating physician has determined the claimant to be at maximum medical improvement (MMI) with whole person impairment, the claimant’s permanent medical impairment shall be determined by a Level II accredited physician in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised.
A party who disputes the treating physician’s rating must request a DIME within the time period established by § 8-42-107.2 C.R.S. 2001, and the ALJ is precluded from determining permanent impairment until completion of the DIME. Further, the Rules of Procedure, Part IV(N)(5), 7 Code Colo. Reg. 1101-3 require that within 30 days of a Level II physician’s determination of medical impairment, the insurer shall file a final admission consistent with the physician’s rating or request a DIME.
MMI is not divisible and permanent medical impairment is not ascertainable until the claimant has reached MMI. See City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997). Because the claimant’s medical impairment cannot be rated until the claimant reaches MMI from all compensable components of the injury, it follows that § 8-42-107(8)(c) inherently requires the treating physician to rate all compensable components of the injury. See §8-42-107(1)(b), C.R.S. 2001; cf. Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998) (treating physician’s rating includes determination of cause of impairment).
Moreover, the Workers’ Compensation Rule XIV(L)(5), 7 Code Colo. Reg. 1101-7 explicitly states that “only one” DIME per case shall be issued on the medical impairment. Because the DIME process is not applicable until there has been a determination of permanent impairment by a treating physician, we conclude that § 8-42-107(8)(c) inherently precludes a DIME until all of the claimant’s compensable injuries have been rated by a treating physician. Accordingly, we agree with the claimant that the requirements of § 8-42-107.2 and Rule IV(N)(5) apply only to final medical impairment ratings by authorized treating physicians.
The DIME process also governs the determination of MMI. The court has held that where there is factual dispute concerning whether a treating physician has placed the claimant at MMI a DIME is not a prerequisite to a hearing before an ALJ to resolve the dispute. Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996). This is true because the parties cannot determine whether to “dispute” the authorized treating physician’s determination of MMI until the parties know the nature of the treating physician’s opinion. Any other construction would require the parties to incur the cost of a DIME without first knowing whether the treating physician’s opinion is objectionable.
The respondent’s arguments notwithstanding, the court’s reasoning i Blue Mesa Forest v. Lopez, supra, is equally applicable to a treating physician’s determination of permanent impairment. In particular, a party cannot make a meaningful decision about whether to “dispute” an impairment rating until the party knows the exact degree of impairment assigned. In fact in Mand Made Pizza v. Industrial Claim Appeals Office, (Colo.App. No. 01CA1940, June 20, 2002) (not selected for publication), the court concluded that the “broader position” for which Blue Mesa
stands includes the ALJ’s ability to resolve “any factual dispute.” (Emphasis in original). Based on the court’s opinions in Mand Made Pizza
we are persuaded that if the treating physician’s rating report is ambiguous, the resolution of the ambiguities is a question of fact for the ALJ which may be resolved without resort to an DIME.
Here, the parties disagreed on the correct interpretation of Dr. Hall’s November 27 report. Further, the ALJ implicitly adopted the Prehearing ALJ’s finding that Dr. Hall’s report was “ambiguous.” Under these circumstances, the claimant was entitled to an evidentiary hearing to present evidence in support of his contention that Dr. Hall did not purport to issue a complete impairment rating until February 7. See Delaney v. Industrial Claim Appeals Office 30 P.3d 691 (Colo.App. 2000) Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990) (where the administrative adjudication turns on issues of fact, due process requires that the parties be afforded a reasonable opportunity in which to confront adverse witnesses and present evidence and argument in support of their position). Consequently, the matter must be remanded for an evidentiary hearing consistent with the claimant’s previous application for hearing.
In reaching our conclusions we reject the respondent’s contention the claimant was required to seek a DIME to resolve ambiguities in Dr. Hall’s November report. Section 8-42-107 .2(1), C.R.S. 2001, provides that the DIME process governs the “selection of an independent medical examiner” to “resolve disputes arising under section 8-42-107.” By its plain and ordinary meaning, the statute establishes deadlines for selection of a DIME only in those circumstances where a DIME is required to resolve a dispute under § 8-42-107. See Anheuser Busch Inc. v. Industrial Claim Appeals Office, 28 P.3d 969 (Colo.App. 2001) (rules of statutory construction requires that words to be given their plain meaning). As we have held, the resolution of the ambiguities in a treating physician’s rating is a factual issue for the ALJ.
In contrast, the DIME physician is required to make an independent determination of the claimant’s impairment. The courts have declined to extent the DIME process beyond the statutory limits to encompass issues reserved for the ALJ. See Cordova v. Industrial Claim Appeals Office,
__P.3d __(Colo.App. No. 01CA0852, February 28, 2002) (DIME physician opinion has not presumptive weight on whether claimant’s condition has worsened after MMI). It follows that a request for a DIME was not the proper remedy to the resolve the claimant’s contention that Dr. Hall’s November rating was incomplete. Cf. Chasteen v. King Soopers, Inc.,
W.C. No. 4-445-608 (July 11, 2001) (respondents not required to comply with § 8-42-107.2 to contest treating physician’s opinion that claimant suffered a work-related injury because that is a threshold determination for the ALJ and not subject to DIME procedure).
In view of our remand, it is premature to consider the claimant’s further arguments to challenge the ALJ’s findings that the January Final Admission was properly filed, and that Dr. Hall’s February 7 report did not require the respondent to file an amended admission.
Finally, we agree with the ALJ’s determination that under the unique facts presented here, the statute of limitations for the claimant to request a DIME did not commence upon the respondent’s filing of the January Final Admission. To the contrary, the claimant’s 30 day period to request a DIME does not commence until a determination of whether the respondent filed a Final Admission that included “an impairment rating issued in accordance with section 8-42-107.”
IT IS THEREFORE ORDERED that the ALJ’s order dated April 25, 2002, is set aside and the matter is remanded to the ALJ for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ Kathy E. Dean ________________________________ Robert M. Socolofsky
Copies of this decision were mailed September 24, 2002 to the following parties:
Jose Calvillo, 518 Libra Way, Fruita, CO. 81520
Intermountain Wood, P. O. Box 65970, Salt Lake City, UT 84165-0970
Kris Flores, Gallagher Bassett Services, Inc., P. O. Box 4068, Englewood, CO. 80155-4068
J. Keith Killian, Esq. and Amy K. Eaton, Esq., P. O. Box 4859, Grand Junction, CO. 81502 (For Claimant)
Sean K. Dotson, Esq. and Cindy Slevin, Esq., 10200 E. Girard Ave., Building C, #145, Denver, CO. 80231 (For Respondents)
BY: A. Hurtado