W.C. No. 4-116-168Industrial Claim Appeals Office.
September 11, 1996
FINAL ORDER
The claimant seeks review of the final order of Administrative Law Judge Wells (ALJ) which denied a claim for penalties. We affirm.
The issue in this case concerns the respondents’ alleged violation of Rule of Procedure IV(N)(4)(b), 7 Code Colo. Reg. 1101-3 at 6.02-7, and imposition of a penalty for that violation. The matter was submitted as a “Motion for Summary Judgment,” and there was no hearing. The pertinent facts are undisputed.
The claimant sustained a compensable injury. On October 27, 1995, the claimant’s treating physician, Dr. Mitchell, issued a report stating that the claimant had a thirty percent whole person impairment as a result of the injury. The report did not address the issue of maximum medical improvement (MMI). Dr. Mitchell’s report was received by the respondents on November 8, 1995.
Subsequently, the respondents wrote three letters to the doctor pointing out that he had not determined the date of MMI, and requesting him to do so. Dr. Mitchell issued a report in January 1996 (although the report was dated January 3, “1995”) stating that the claimant had reached MMI. On January 19, 1996, the respondents requested a Division-sponsored independent medical examination (IME) for the purposes of determining the date of MMI and the degree of permanent impairment.
The claimant then requested a hearing concerning imposition of penalties under § 8-43-304(1), C.R.S. (1995 Cum. Supp.). The claimant alleged that the respondents violated Rule of Procedure IV(N)(4)(b) by not filing an admission of liability or requesting an IME within twenty days of November 8, 1995, the date they received Dr. Mitchell’s October 27 report concerning the claimant’s impairment.
The respondents then filed a Motion for Summary Judgment asserting that they did not violate the rule because Dr. Mitchell did not issue a report concerning MMI until January 3, 1996. The respondents argued that under § 8-42-107(8)(c), C.R.S. (1995 Cum. Supp.) and Rule of Procedure IV(N)(4)(a), 7 Code Colo. Reg. 1101-3 at 6.02, they were not required to file an admission or request an IME because Dr. Mitchell’s October 27 report did not identify a date of MMI.
The ALJ summarily granted the respondents’ motion and dismissed the claim for penalties. Thus, the ALJ implicitly accepted the respondents’ argument that they did not violate the rule.
On review, the claimant contends that the ALJ’s order is incorrect. The claimant asserts that the respondents’ duties under Rule IV(N)(4)(b) are independent of their duties under Rule IV(N)(4)(a). In addition, the claimant points out that the respondents admitted in their request for a Division IME that the claimant reached MMI on October 27. We find no error.
The claimant’s argument for imposition of a penalty is based on the assertion that the respondents violated a duty “lawfully enjoined” because Rule of Procedure IV(N)(4)(b) required them to file an admission of liability for permanent impairment, or request an IME, regardless of the fact that Dr. Mitchell’s October 27 report did not establish a date of MMI. See Allison v. Industrial Claim Appeals Office, 916 P.2d 623
(Colo.App. 1995) (imposition of a penalty requires proof that there was a failure or refusal to perform a lawfully enjoined duty). Thus, we must determine whether Rule IV(N)(4)(b) can be read as establishing a duty independent of the requirements of subsection (4)(a).
Generally, rules of procedure have the force and effect of law, though they are not the equivalent of statutes. Cornerstone Partners v. Industrial Claim Appeals Office, 830 P.2d 1148 (Colo.App. 1992). Further, to the extent that a rule of procedure has been enacted to implement a specific statutory requirement the rule should be deemed i pari materia with the statute and they should be read together so as to effect the legislative intent. See Sterling v. Industrial Commission, 662 P.2d 1096 (Colo.App. 1982).
We agree with the respondents that Rule IV(N)(4) was enacted to implement the provisions of § 8-42-107(8)(b) and (c), C.R.S. (1995 Cum. Supp.). Section 8-42-107(8)(b) provides that the primary treating physician determines the date of MMI. Section 8-42-107(8)(c) states that “when the injured employee’s date of maximum medical improvement has been determined pursuant to paragraph (b),” the authorized treating physician must rate the degree of medical impairment. These statutes obviously contemplate that a determination of MMI will precede a determination of medical impairment.
In view of this statutory sequence, we conclude that the best interpretation of Rule of Procedure IV(N)(4)(a) and (4)(b) is that a determination of MMI under subsection (4)(a) must precede the determination of an impairment rating and the filing of an admission of liability or request for IME under paragraph (4)(b). This interpretation also serves the overall statutory objective of insuring the quick and efficient delivery of benefits at a reasonable cost, and without the necessity of litigation. Section 8-40-102(1), C.R.S. (1995 Cum. Supp.).
In reaching this result, we have considered the claimant’s argument that the respondents eventually admitted that the claimant reached MMI on October 27. However, this admission occurred after receiving Dr. Mitchell’s report of January 3, 1996, which stated that the claimant had reached MMI. The fact that the respondents eventually admitted that the claimant reached MMI on October 27 does not prove that they knew this fact prior to receiving the January 3 report.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 14, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ 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. (1995 Cum. Supp.).
Copies of this decision were mailed September 11, 1996 to the following parties:
Douglas J. Harling, 780 San Bruno Place, Colorado Springs, CO 80906
B.C.R. Industries, Inc., 3515 N. Prospect St., Colorado Springs, CO 80907-5450
Colorado Compensation Insurance Authority, Attn.: Legal Dept. (Interagency Mail)
Douglas A. Thomas, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701 (For the Respondents)
Steven R. Waldmann, Esq., 303 S. Circle Dr., Ste. 202, Colorado Springs, CO 80910-3000 (For the Claimant)
By: _______________________