W.C. No. 4-516-705Industrial Claim Appeals Office.
December 12, 2003
FINAL ORDER
The claimant seeks review of a Corrected Order of Administrative Law Judge Stuber (ALJ) insofar as it denied the claimant’s request for an order requiring the respondents to reimburse him for the cost of a “follow-up” Division-sponsored independent medical examination (DIME). We affirm.
The facts of this case are undisputed. The claimant sustained a compensable knee injury in August 2001. On February 11, 2002, Dr. Bradley, an authorized treating physician (ATP), following a course of conservative treatment placed the claimant at maximum medical improvement (MMI) with no permanent impairment. On February 28, 2002, the respondents filed a Final Admission of Liability (FAL) consistent with Dr. Bradley’s opinion.
The claimant objected to the FAL and timely sought a DIME on the issues of MMI and medical impairment. On May 8, 2002, the DIME physician opined the claimant was not at MMI because he required referral to an orthopedic surgeon for consideration of possible arthroscopic knee surgery.
The respondents did not contest the DIME physician’s opinion and the claimant was referred to a second ATP (Dr. Boehle) for evaluation and treatment. Dr. Boehle referred the claimant to a surgeon who performed arthroscopic knee surgery on October 24, 2002. Dr. Boehle then placed the claimant at MMI for the second time on February 10, 2003, with an impairment rating of 20 percent of the lower extremity (converted to 8 percent whole person impairment). The respondents filed an FAL on February 18, 2003, which admitted for PPD benefits consistent with Dr. Boehle’s scheduled rating. The admission terminated temporary partial disability (TPD) benefits effective November 23, 2002, but the respondents would later admit liability for temporary benefits through December 9, 2002.
The claimant objected to the February 18 FAL, but did not request a DIME to contest the MMI date or the impairment rating. Instead, on April 21, 2003, claimant’s counsel sent a letter to respondents’ counsel stating that a “Repeat IME” had been scheduled with the DIME physician on May 14, 2003.
The respondents moved to strike the DIME, arguing the claimant did not request the DIME within 30 days of the FAL as required by the provisions of § 8-43-203(2)(b)(II), C.R.S. 2003, § 8-42-107.2(2)(a)(I)(A), C.R.S. 2003, and § 8-42-107.2(2)(b), C.R.S. 2003. However, on May 9, 2003, a prehearing administrative law judge (PALJ) denied the motion. The PALJ ruled that under Rule of Procedure XIV (L)(7), 7 Code Colo. Reg. 1101-3 at 60, the “follow-up IME” was to be conducted by the original DIME physician, and the DIME physician was to determine the date of MMI.
The follow-up DIME was conducted, and the DIME physician issued an opinion agreeing the claimant reached MMI on February 10, 2003, and assessing a 31 percent lower extremity impairment rating (which converts to a 12 percent whole person impairment rating).
The claimant then filed an application for hearing seeking additional TTD benefits and an order requiring the respondents to pay for the follow-up DIME. The ALJ first ruled that the claimant was entitled to TPD benefits from December 10, 2002 through the date of MMI, but was not entitled to TTD benefits because of an intervening injury.
The ALJ next ruled the respondents are not liable to pay for the follow-up DIME requested by the claimant. The ALJ concluded that Rule XIV (L)(7), cited by the claimant, establishes a procedure under which repeat DIMEs, to the extent possible, are to be conducted by the same physician which conducted the initial DIME. However, the ALJ held that the rule cannot be construed as vitiating the “other requirements imposed by statute and rule” for the conduct of DIMEs, and does not address “liability for the examination fee.” Instead, the ALJ concluded that Rule of Procedure IV (N)(5), 7 Code Colo. Reg. 1101-3 at 8.2, obliged the respondents to file an FAL within 30 days of Dr. Boehle’s impairment rating, and § 8-42-107.2 obliged the claimant to file a request to select a DIME within 30 days of the FAL or lose the right to a DIME. Because the claimant failed to request the DIME within 30 days after the FAL, the ALJ granted the respondents’ motion to strike the claimant’s request for the DIME and ruled the respondents are not liable to pay for the DIME which was performed on May 14.
On review, the claimant contends that once the DIME physician is selected and renders an opinion that the claimant is not at MMI, the determination of MMI is henceforth controlled by the DIME physician. The claimant reasons that where, as here, a DIME physician determines the claimant is not at MMI and that determination is not contested, it makes no sense to reinstate the DIME selection procedures and time limits established by § 8-42-107.2 and § 8-43-203(2)(b)(II). The claimant argues that application of such procedures could cause a vicious cycle in which the DIME physician opines the claimant is not at MMI while the treating physician, in turn, insists the claimant is at MMI. Thus, the claimant would be required to ask for repeated DIMEs at great expense, and the case would not reach a satisfactory conclusion. The claimant asserts that, under a correct interpretation of the law, the DIME physician’s original opinion that the claimant is not at MMI is controlling until the DIME physician expresses a contrary view, or the respondents overcome the DIME physician’s opinion by clear and convincing evidence. We are not persuaded by the claimant’s arguments and agree with the ALJ’s reasoning.
Section 8-43-203(2)(b)(II) requires a claimant to contest an FAL within 30 days by filing an objection and requesting a “hearing on any disputed issues that are ripe for hearing, including the selection of an independent medical examiner pursuant to section 8-42-107.2 if an independent medical examination has not already been conducted.” Section 8-42-107.2(2)(a)(I)(A) provides the claimant’s “time for selection of an IME commences with the date of mailing of a final admission of liability.” Section 8-42-107.2(2)(b) provides that if a party is disputing a “finding or determination of the authorized treating physician, such party shall request an IME.” Further, the claimant must “mail a notice and proposal” to select a DIME within 30 days of the mailing of the FAL.
Admittedly, none of these provisions, nor the pertinent provisions of § 8-42-107(8)(b) (c), C.R.S. 2003, expressly address the procedure to be followed where a DIME physician has been selected and, pursuant to the DIME physician’s finding, the treating physician’s MMI determination has been set aside. The silence of these statutes creates some degree of ambiguity concerning whether the DIME process “starts over” after the treating physician places the claimant at MMI for the second time or, as the claimant argues, the original DIME physician assumes a “controlling” role in the determination of MMI and permanent impairment.
In light of this ambiguity, we should construe the statutory scheme and rules in a manner which effects the legislative intent. Consequently, we should construe the statutes so as to give consistent, harmonious, and sensible effect to all their parts. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998) (principal duty of a court in construing statute is to determine and to effect legislative intent, and court may consider problem legislature sought to solve and consequences of various interpretations); Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991).
As a starting point, we note that the procedures and time limits for the filing of FALs and the selection of DIMEs established by §8-42-107.2 and § 8-43-203(2)(b)(II) are part of a comprehensive statutory scheme designed to promote “the prompt payment of compensation to an injured worker without the necessity of a formal administrative determination in cases not presenting a legitimate controversy.” Dyrkopp v. Industrial Claim Appeals Office, 30 P.3d 821, 822 (Colo.App. 2001) Chavez v. Cargill, Inc., W.C. No. 4-421-748 (November 1, 2002). The DIME process itself was enacted as a method of reducing litigation concerning MMI and PPD by “providing that, if either party disputes the finding of a treating physician as to MMI or degree of impairment, that party may require that an independent medical examination (IME) be performed.”Colorado AFL-CIO v. Donlon, 914 P.2d 396, 401 (Colo.App. 1995). .
In our opinion, the claimant’s proposed interpretation of the statutory scheme is not consistent with the statutory objectives expressed in the language of the statutes and interpretive cases. Section 8-42-107(8)(b)(I), C.R.S. 2003 provides that “an authorized treating physician shall make a determination as to when the employee reaches” MMI. (Emphasis added). If a party disputes the ATP’s MMI determination, the party may challenge it by requesting a DIME in accordance with the procedures contained in § 8-42-107.2. Section 8-42-107(8)(b)(II), C.R.S. 2003; Town of Ignacio v. Industrial Claim Appeals Office, 70 P.3d 513 (Colo.App. 2002). Similarly, permanent impairment is first determined by the ATP, subject to challenge through the DIME process. Section 8-42-107(8)(c). Neither § 8-42-107(8)(b) nor § 8-42-107(8)(c) gives any presumptive effect to the opinion of DIME physician until an ATP has acted. Thus, the claimant’s interpretation of the statutory scheme is inconsistent with the language of the statute which assigns the role of initial MMI determinations to the ATP, not the DIME physician.
Moreover, the DIME is a procedural step in the process of disputing
determinations of the ATP with respect to MMI and impairment. Hence, when a party disputes the ATP’s MMI determination or impairment rating, the DIME physician’s rating is given “presumptive weight” and must be overcome by clear and convincing evidence. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). The DIME physician’s findings are accorded special weight because they presumably do not result from bias in favor of either party. See Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998).
Where, as here, the DIME physician has found the claimant did not reach MMI, and treatment is again assumed by the ATP, it has been determined as a matter of fact and law that the claimant never reached MMI. In such circumstances, it is logical to interpret the statute, consistent with the statutory language, as placing the parties in the same legal position which existed before MMI was determined and the DIME process initiated. Hence, the authority of the ATP to determine MMI is restored. Further, if no party is dissatisfied with the second MMI determination or the second rating issued by the ATP, there is no “dispute” and, consequently, no need to resort to the DIME process or the DIME physician. The claimant’s proposed interpretation defeats the purpose of reducing litigation in cases where there is no legitimate dispute by requiring that the issue of MMI be resubmitted to the DIME physician once the treating physician places the claimant at MMI for the second time. Submission to the DIME could result in controversy and litigation where none otherwise would have existed. Moreover, the claimant’s proposal adds a level of expense not contemplated by the Act in situations where there is no legitimate controversy.
We also disagree with the claimant’s argument that the DIME physician’s opinion that the claimant was not at MMI at the time of the first DIME “controls over the [treating physician’s second] opinion concerning MMI.” MMI is that “point in time when any medically determinable physical or mental impairment as a result of injury has become stable and when no further treatment is reasonably expected to improve the condition.” (Emphasis added). Section 8-40-201(11.5), C.R.S. 2003. The DIME physician’s initial determination that the claimant has not reached MMI is necessarily based on the examination and evaluation at the “point in time” when the DIME occurs, and determines a specific date on which the claimant has not reached MMI. When treatment has again been restored to the ATP, the DIME physician is in no position to know whether or not the claimant’s condition has subsequently stabilized, or whether additional treatment is needed. Thus, the DIME physician’s original opinion concerning MMI may be relevant, but it certainly is not “controlling” as to whether the claimant reached MMI at some subsequent point in time.
Finally, we note the claimant is proposing to give presumptive weight to the opinion of the DIME physician in a situation not specifically mandated by the statute. The court of appeals has previously noted that the “opinions of a DIME physician have only been given presumptive effect when expressly required by statute.” Cordova v. Industrial Claim Appeals Office, 55 P.3d at 190 (DIME physician’s opinion that worsening of condition was caused by industrial injury not entitled to presumptive weight under statutory scheme).
It follows that we agree with the ALJ’s conclusion that the claimant did not timely request a DIME following the filing of the FAL in February 2003. As the ALJ recognized, Rule XIV(L)(7) is not inconsistent with this conclusion. The rule does not purport to establish under what circumstances a claimant must request a DIME, nor does it establish time limits for doing so. It merely establishes that when a DIME physician has been previously selected and a follow-up DIME is “appropriate,” the “IME shall to the extent possible be scheduled with the original IME physician.” Thus, the rule is one of efficiency concerning repeat DIMEs, not a jurisdictional or substantive rule.
Finally, we concur in the ALJ’s rejection of the claimant’s vicious cycle argument. If a DIME finds the claimant is not at MMI and the respondents do not contest this determination, the DIME physician’s finding is binding on the respondents. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Thus, it appears the respondents are legally obligated to select a physician who will attempt to provide additional diagnosis and treatment or risk penalties for non-compliance with the Act and underlying order. Further, we agree with the ALJ that if the treating physician obstinately resists providing further treatment, the claimant has an excellent case for requesting a change of physician. Cf. Ames v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 02CA1895, October 23, 2003) (request for change of physician based on alleged unprofessional conduct and filed before ATP placed claimant at MMI did not constitute constructive challenge to ATP’s MMI determination nor an attempt to circumvent DIME process, and ALJ could consider request). Further, as the ALJ noted, the facts of this case demonstrate that there was no vicious cycle as the respondents provided the treatment recommended by the DIME physician.
Because we conclude the ALJ correctly resolved this issue, we need not address the claimant’s remaining arguments. Those arguments assume the ALJ incorrectly resolved the issue discussed above. Since the ALJ correctly resolved the issue, the remaining arguments are moot.
IT IS THEREFORE ORDERED that the ALJ’s Corrected Order dated July 31, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Dona Halsey
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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2003. The appealing party must serve a copy of the Petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on December 12, 2003 by A. Pendroy.
Rumaldo Gutierrez Perales, 1633 E. 3rd St., Pueblo, CO 81001
Lisa Napier, Napier Enterprises, Inc., 1300 Fortino Blvd., #A, Pueblo, CO 81003
Suzanne Limppo, Mid-Century Insurance Company, 7535 E. Hampden Ave., #300, Denver, CO 80231
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Raymond A. Melton, Esq., 1801 Broadway, #1500, Denver, CO 80202 (For Respondents)