W.C. No. 4-191-992Industrial Claim Appeals Office.
September 27, 1996
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Henk (ALJ) which determined that the Colorado Compensation Insurance Authority (CCIA) did not violate Rules of Procedure, Part IV(N)(4)(c), 7 Code. Colo. Reg., 1101-3 at 7, and therefore, denied the claimant’s request for penalties. We affirm.
The claimant sustained an admitted back injury on May 25, 1993. The attending physician rated the claimant’s permanent medical impairment as nineteen percent of the whole person. The CCIA disputed the rating and requested an independent medical examination (IME) sponsored by the Division of Workers’ Compensation (Division). However, the CCIA subsequently canceled the IME request and filed a Final Admission of Liability consistent with the attending physician’s medical impairment rating.
Nevertheless, the claimant later underwent a Division-sponsored IME with Dr. Kinnett. In a report dated September 26, 1994, Dr. Kinnett rated the claimant’s medical impairment as twenty-four percent of the whole person. On November 28, 1995, the CCIA filed a Final Admission of Liability consistent with Dr. Kinnett’s rating.
Rule IV(N)(4)(c) provides that:
“Within twenty (20) days of the receipt of the findings of a Division IME, with regard to either maximum medical improvement or medical impairment, the carrier shall either admit liability consistent with said findings, or file an application for hearing in regard to such findings.”
The ALJ found that although a copy of Dr. Kinnett’s report was received by the Division in December 1994, the CCIA did not receive it until November 16, 1995. Therefore, the ALJ determined that the CCIA’s November 28 Final Admission of Liability complied with Rule IV(N)(4)(c).
On review, the claimant does not contest the ALJ’s determination that the CCIA did not receive Dr. Kinnett’s report until November 16. Instead, the claimant contends that Rule IV(N)(4)(c) implicitly imposes a duty on the insurer to exercise “due diligence” timely to secure the IME physician’s report, and contends that the CCIA failed to exercise due diligence to obtain Dr. Kinnett’s report before November 1995. Therefore, the claimant argues that the CCIA violated Rule IV(N)(4)(c), and is subject to penalties. We reject this argument.
Rule IV(N)(4)(c) was enacted by the Director of the Division of Workers’ Compensation (Director) to implement the MMI and medical impairment provisions of § 8-42-107(8), C.R.S. (1996 Cum. Supp.). That statute does not expressly impose a duty on the insurer, or any party seeking an IME, to take specific affirmative action to ensure the “timely receipt” of the IME physician’s report, and we may not read non-existent provisions into the statute. Cf. Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995).
Moreover, the Rules of Procedure are subject to the normal rules of statutory construction. Consequently, words and phrases must be given their plain and ordinary meaning. Spanish Peaks Mental Health Center v. Huffaker, ___ P.2d ___ (Colo.App. No. 95CA1726, March 21, 1996). The plain language in Rule IV(N)(4)(c) provides that the insurer’s duty to admit liability or apply for a hearing is triggered upon “receipt” of the IME physician’s report. The term “receipt” is unambiguous. The Webster’s New College Dictionary, (1995) defines the term “receipt” as the act of receiving something. Therefore, Rule IV(N)(4)(c), does not require the insurer to file an admission or request a hearing until the insurer has actually received the IME physician’s report. Under these circumstances, we cannot say that the CCIA’s failure to obtain Dr. Kinnett’s report was a violation of Rule IV(N)(4)(c) so as to justify the imposition of penalties under § 8-43-304(1), C.R.S. (1996 Cum. Supp.); cf. Allison v. Industrial Claim Appeals Office, 916 P.2d 623 (Colo.App. 1995) (no violation of statute where statute does not require payment of temporary disability benefits without regard to applicable offsets).
Furthermore, even if the rule were ambiguous, we would reject the claimant’s construction. Rule of Procedure XIV(L), 7 Code Colo. Reg. 1101-3 at 53-57, sets forth the procedures enacted by the Director for conducting Division-sponsored IMEs. Rule XIV(L)(2)(b) requires the IME physician to submit a written report to the Division and “all parties” within fifteen days of the examination. Thus, Rule XIV(L)(2) places the responsibility for timely submission of the IME report on the examining physician and does not require any particular action on the part of the insurer or any other party if the IME physician fails to comply with subsection (L)(2)(b). We also note that Rule XIV(L)(2)(k) prohibits the insurer from contacting the IME physician. Therefore, we are not persuaded that Rule IV(N)(4)(c) must be construed as implicitly requiring the insurer to take affirmative action to obtain the IME physician’s report if it is not forthcoming.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 21, 1996, is 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. (1996 Cum. Supp.).
Copies of this decision were mailed September 27, 1996 to the following parties:
Evelyn I. Carrillo, 614 E. 5th St., Pueblo, CO 81003
Sam Ray’s Frozen Foods, Inc., c/o Colorado Compensation Insurance Authority (Interagency Mail)
LaContessa Foods, 126 Oneida St., Pueblo, CO 81003-3424
Colorado Compensation Insurance Authority, Attn: C. Kriksciun, Esq. (Interagency Mail)
Michael W. Seckar, Esq. Erik W. Lang, Esq., 402 W. 12th St., Pueblo, CO 81003 (For the Claimant)
BY: _______________________