W.C. No. 4-240-793Industrial Claim Appeals Office.
June 13, 1996
FINAL ORDER
The claimant seeks review of a final Order of Administrative Law Judge Stuber (ALJ) which determined that the he was “without jurisdiction” to consider the claimant’s request for a change of physician. We affirm.
The pertinent facts are undisputed. The claimant’s authorized treating physician, Dr. Goldstein, placed the claimant at maximum medical improvement (MMI) on March 16, 1995. At that time, Dr. Goldstein gave the claimant an impairment rating of twenty percent of the right upper extremity. The respondents filed a final admission of liability based on Dr. Goldstein’s report.
Thereafter, the claimant filed an application for hearing seeking a change of physician. However, relying on §8-42-107(8)(b), C.R.S. (1995 Cum. Supp), the ALJ concluded that he lacked jurisdiction to authorize a change of physician unless the claimant obtained an independent medical examination (IME). In so doing, the ALJ held that the IME procedure applies to MMI determinations regardless of whether the claimant’s permanent impairment is considered “scheduled or non-scheduled.”
On review, the claimant contends that the ALJ erred in requiring that she seek an IME for purposes of obtaining a change of physician. Relying on § 8-42-107(8)(a), C.R.S. (1995 Cum. Supp), the claimant reasons that the IME procedure described in subsection (8)(b) applies only to “whole person medical impairment benefits” calculated in accordance with subsection (8)(c). We reject this argument.
Initially, we have considered whether the ALJ’s order is final and reviewable under § 8-43-301(2), C.R.S. (1995 Cum. Supp). We conclude that the ALJ’s order constitutes a denial of benefits because it effectively precludes the claimant from obtaining a hearing on the merits of her claim unless she obtains an IME which, if she is correct, is not required by law See Carreon v. Monfort, Inc.,
W.C. No. 4-140-621 and 4-195-162, December 19, 1994.
Turning to the merits, we apply the rule that statutes are to be interpreted so as to effect the legislative intent. Where the statutory language is plain and unambiguous, the language should be given its ordinary meaning without resort to rules of statutory construction. However, to the extent a statute is ambiguous we must construe the entire statutory scheme in a manner that gives consistent, harmonious, and sensible effect to all of its parts. Further, we may consider legislative history and the state of the law prior to the legislative enactment Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991).
We agree with the ALJ that placement of subsection (8)(b) in § 8-42-107(8) creates some ambiguity. Subsection (8)(b) concerns the establishment of an IME procedure when a party disputes a finding of MMI issued by the authorized treating physician. Obviously, determinations of MMI affect benefits other than whole person permanent disability benefits. Ambiguity arises because the balance of subsection (8) concerns determinations of whole person medical impairment and calculation of benefits arising thereunder. Thus, a question arises as to whether subsection (8)(b) applies solely to cases involving “whole person medical impairment,” or applies equally to cases where the claimant has a “scheduled impairment.” We hold that subsection (8)(b) is not restricted to cases involving whole person medical impairment.
In this regard, we note that it has already been held that the IME procedure contained in subsection (8)(b) applies to termination of temporary disability benefits when the claimant reaches MMI. Section 8-42-105(3)(a), C.R.S. (1995 Cum. Supp) Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). Further, in Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995), the court held that after the authorized treating physician determined the claimant was at MMI, the claimant was not entitled to seek a change of physician for the purpose of obtaining treatment to improve his condition without completing an IME under subsection (8)(b). The court’s ruling was not based on any distinction between scheduled and non-scheduled impairments, but on the conclusion that the entire IME procedure would be eviscerated if claimants were allowed to circumvent the procedure by the expedient of requesting a change of physicians.
It follows that a harmonious and consistent reading of the statute requires that subsection (8)(b) applied to both scheduled and non-scheduled injuries. It would make little sense to hold that subsection (8)(b) applies to determinations of MMI for whole person impairments and to terminations of temporary disability benefits under § 8-42-105(3)(a), but does not apply to cases involving scheduled impairments.
Moreover, the statutory scheme does not indicate that the method of determining MMI should be based on the type of permanent medical impairment. Section 8-40-201(11.5), C.R.S. (1995 Cum. Supp.), defines MMI as the point in time at which “any medically determinable physical or mental impairment . . . has become stable and when no further treatment is reasonably expected to improve the condition.” (Emphasis added). This definition makes no reference to whether a determinable impairment is “scheduled or non-scheduled,” and it would make little sense to conclude that such a distinction is imported into subsection (8)(b).
Moreover, the position argued for by the claimant is contrary to the legislative purpose underlying §8-42-107(8)(b). The purpose of the statute is to decrease litigation involving the attainment of MMI. Colorado AFL-CIO v. Donlon, supra. Here, the claimant’s proposed interpretation would proliferate litigation by creating an arbitrary distinction between cases involving scheduled and non-scheduled impairments.
Finally, we note that § 8-42-107(8)(a) provides that benefits for non-scheduled impairments “shall be limited to medical impairment benefits calculated as provided in this subsection (8).” Application of subsection (8)(b) to claims involving non-scheduled impairments does not interfere with the “calculation” of whole person medical impairments under subsection (8)(c). Rather, determinations of MMI have little to do with the “calculation” of medical impairment benefits, and therefore, a broader application of subsection (8)(b) is not contrary to the language of subsection (8)(a).
IT IS THEREFORE ORDERED that the ALJ’s order dated October 25, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacatethe Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, Colorado 80203, by filing a petition toreview with the court, with service of a copy of thepetition upon the Industrial Claim Appeals Office and all otherparties, within twenty (20) days after the date the Order wasmailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995Cum. Supp.).
Copies of this decision were mailed June 13, 1996 to the following parties:
Carolyn Delants, 935 Teller St., Lakewood, CO 80215
Federal Reserve Bank, P.O. Box 5228, Denver, CO 80217-5228
Colorado Compensation Insurance Authority, Attn: Brandee L. DeFalco, Esq. (Interagency Mail)
Shelley P. Dodge, Esq., 1763 Franklin St., Denver, CO 80218 (For the Claimant)
Bruce B. McCrea, Esq., 1873 S. Bellaire, #1400, Denver, CO 80222 (For the Respondents)
By: _______________________