W.C. No. 4-623-424.Industrial Claim Appeals Office.
November 4, 2008.
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) dated June 2, 2008, that determined that the respondents failed to overcome the Division-sponsored independent medical examination (DIME) and that awarded permanent partial disability benefits based upon an impairment rating of 26 percent. Because the ALJ’s factual findings are insufficient to permit appellate review, we set aside the order and remand for entry of another order supported by sufficient factual findings.
Initially, we note that this case involved a request for a DIME, and that in connection with that request no Notice and Proposal to Select a DIME was filed. The record reflects that the claimant objected to the respondents’ final admission of liability and filed an “Application for a Division Independent Medical Examination (IME).” The respondents’ attorney then corresponded with the claimant’s attorney and noted that he had not received a notice and proposal. Additionally, he proposed a doctor to perform the DIME, to which the claimant’s attorney replied in a letter that she would not agree to the proposed doctor, and she suggested another physician. The respondents subsequently moved to strike the DIME, asserting that the filing of a notice and proposal was a jurisdictional prerequisite to obtaining a DIME. The ALJ denied that motion.
A hearing was then held on the issues of whether the respondents overcame the DIME report regarding the claimant’s whole person impairment rating. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant worked for the employer’s concrete business as a supervisor. On September 17, 2002, the claimant tripped and fell, injuring multiple body
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parts, including his neck and upper extremities. The claimant underwent medical treatment that included three surgeries, including implantation of a spinal stimulator. At the time of the hearing the claimant testified credibly that he continued to experience pain in his neck, arms, hands, and shoulder blades. He also experienced numbness, tingling, and weakness in his arms and hands. According to one of the claimant’s authorized treating physicians, Dr. Colliton, the claimant reached maximum medical improvement on August 8, 2007, with permanent impairment equal to 20 percent of the whole person. The claimant obtained a DIME, performed by Dr. Fernandez, who reported that the claimant reached maximum medical improvement on August 8, 2007, with 26 percent impairment of the whole person. Dr. Fernandez testified by deposition on May 9, 2008, and stated that her previous opinion concerning the date of maximum medical improvement was incorrect, and the claimant actually reached that status on February 6, 2007. Dr. Colliton also testified by deposition and stated that the claimant reached maximum medical improvement on February 6, 2007.
Based upon his factual findings, the ALJ concluded that the respondents failed to overcome the DIME report on the issue of the claimant’s permanent impairment. Accordingly, the ALJ awarded permanent partial disability benefits based upon the DIME report of 26 percent impairment of the whole person.
The respondents appealed and make two arguments. First, the respondents contend that the claimant did not timely file a Notice and Proposal to Select a DIME and that, therefore, the ALJ erred in refusing to strike the DIME. Second, the respondents argue that the ALJ was compelled to conclude that the DIME report on impairment was overcome. In our view, the ALJ’s order denying the respondents’ motion to strike the DIME is insufficient to permit our review. Therefore, it is necessary to remand this matter for entry of a further order on that issue.
It is apparently undisputed that the claimant did not file a Notice and Proposal to Select a DIME, but rather objected to the final admission of liability and filed an Application for a Division Independent Medical Examination (IME). In Pinon v. U-Haul, W.C. No. 4-632-044 (April 25, 2007), aff’d sub. nom. Pinon v. Industrial Claim Appeals Office (Colo.App. 07CA0922, April 3, 2008) (not selected for official publication), we previously held that, although the filing of a notice and proposal has been characterized as a “jurisdictional” prerequisite to obtaining a DIME, the doctrine of substantial compliance may be applied in such cases. But see Leewaye v. Industrial Claim Appeals Office, 178 P.3d 1254 (Colo.App. 2007) (neither subject matter jurisdiction nor personal jurisdiction is implicated by failure to object to a final admission of liability). We noted in Pinon that substantial compliance requires that a party intend to or actually make a good faith or colorable effort to comply with the statutory
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requirements. We adhere to the views expressed in Pinon, since, in our opinion, a rule of substantial compliance may serve the purposes of the statute. People v. Trancoso, 776 P.2d 374, 379 (Colo. 1989). I Pinon, however, it was unnecessary for us to apply that doctrine because we concluded that the claimant there had made no effort at compliance with the statutory requirements, and therefore there could not in that case have been substantial compliance.
The statutory requirement at issue here is set forth in § 8-42-107.2, C.R.S. 2008. That section provides that:
(2)(b) If any party disputes a finding or determination of the authorized treating physician, such party shall request the selection of an IME. The requesting party shall notify all other parties in writing of the request, on a form prescribed by the division by rule, and shall propose one or more acceptable candidates for the purpose of entering into negotiation for the selection of an IME. Such notice and proposal is effective upon mailing via United States mail, first-class postage paid, addressed to the division and to the last-known address of each of the other parties. Unless such notice and proposal are given within thirty days of the disputed finding or determination, as applicable pursuant to paragraph (a) of this subsection (2), the authorized treating physician’s findings and determinations shall be binding on all parties and on the division.
Here, it is apparently undisputed that there was not strict compliance with the statute. However, “[t]he facts in each particular case provide the basis for determining whether there has been substantial compliance.” Charnes v. Norwest Leasing, Inc., 787 P.2d 145, 150 (Colo. 1990) (Erickson, J., dissenting). Here, the ALJ’s order denying the motion to strike the DIME contains no findings of fact, conclusions of law, or any indication concerning the reasoning or the factual grounds underlying the ALJ’s order. It is therefore impossible for us to ascertain the factual basis of the order or, indeed, to determine whether the ALJ construed the claimant’s conduct as constituting substantial compliance. Although many of the facts of this matter appear to be undisputed, it does not appear to us to be a case where we may rule on the question in the first instance or as a matter of law. In any event, because the question of substantial compliance with the statute is essentially one of fact, it is necessary for us to remand this matter for entry of a new order.
On remand the ALJ should enter findings of fact, conclusions of law, and an order sufficient to permit review of the issue, which we assume will remain that of whether the
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claimant substantially complied with § 8-42-107.2. The ALJ may conduct such further proceedings as in his discretion he considers appropriate to comply with this remand. Of course, nothing in this order should be construed as dictating any particular outcome on remand.
Because of our resolution of this first issue and our consequent remand of this matter, it is unnecessary for us to address the respondents’ second argument that the ALJ was compelled as a matter of law to conclude that the DIME report on impairment was overcome by clear and convincing evidence.
IT IS THEREFORE ORDERED that the ALJ’s order issued June 2, 2008, is set aside and the matter is remanded for further proceedings and entry of another order resolving the motion to strike the DIME, consistent with the foregoing.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
TIMOTHY LOCKYER, MACK, CO, (Claimant).
MAYS CONCRETE, INC., GRAND JUNCTION, CO, (Employer).
CONTINENTAL CASUALTY CO., Attn: RUTH ANN KUEHL, ADJUSTER, DENVER, CO, (Insurer).
KILLIAN, JENSEN DAVIS, PC, Attn: JOANNA C JENSEN, ESQ., GRAND JUNCTION, CO, (For Claimant).
WHITE AND STEELE, PC, Attn: ROBERT H COATE, ESQ., DENVER, CO, (For Respondents).