W.C. No. 4-155-161Industrial Claim Appeals Office.
October 12, 1995
FINAL ORDER
The respondents seek review of a final order of Chief Administrative Law Judge Felter (ALJ) insofar as it imposed a penalty for violation of a rule of procedure, and determined that the claimant’s date of maximum medical improvement (MMI) was July 14, 1994. The claimant seeks review of the order insofar as the ALJ imposed a single penalty rather than multiple penalties. We affirm.
The ALJ’s findings of fact are essentially undisputed on appeal. The claimant’s treating physician opined that the claimant reached MMI on December 20, 1993, and the respondents terminated the claimant’s temporary disability benefits as of that date. The claimant then sought an independent medical examination (IME) pursuant to § 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.). The IME physician, Dr. Glatz, issued a report dated July 14, 1994, in which he stated that the claimant “has reached maximum medical improvement as of this date.” However, Dr. Glatz did not indicate, on a form provided by the Division of Workers’ Compensation (Division), whether he “agreed” with the “treating physician’s date of MMI.”
On October 7, 1994, counsel for the respondents wrote a letter to Dr. Glatz inquiring whether the doctor believed that the claimant reached MMI on July 14, 1994, or agreed with the treating physician that the claimant reached MMI on December 20, 1993. Dr. Glatz, in a letter dated October 12, 1994, replied that he intended July 14 as the date of MMI, and he was “unable to comment” on whether the claimant reached MMI on December 20 because he did not examine the claimant on that date.
Under these circumstances, the ALJ concluded that Dr. Glatz clearly and unambiguously established the date of MMI as July 14, 1994. Moreover, the ALJ stated the failure of Dr. Glatz to “fill out certain blanks on the cover sheet of the report is immaterial as the entire report must be read together.” Thus, the ALJ ordered the respondents to pay temporary total disability benefits from December 20, 1993 through July 13, 1994.
Further, the ALJ concluded that the respondent Colorado Compensation Insurance Authority (CCIA) violated Rule of Procedure XIV(L)(2)(k), 7 Code Colo. Reg. 1101-3 at 55, because counsel for the CCIA wrote directly to the IME physician. In so doing, the ALJ stated that the “rule plainly contemplates the IME doctor is to be free from all contact by the parties” except in the limited circumstances set forth in the rule. Further, the ALJ noted that the CCIA previously had improper contact with IME physicians, and that one of these contacts resulted in the CCIA settling a claim for $40,000.00, most of which was attributable to “the penalty issue.”
In so doing, the ALJ rejected the argument that Rule XIV(L)(2)(k) permits contact with IME physicians after the IME examination is complete. The ALJ noted that the rule permits depositions of IME physicians, and observed that “there would be nothing to depose the doctor about prior to the examination.”
The ALJ also rejected the claimant’s argument that the violation was of a “continuing nature.” Consequently, the ALJ imposed a penalty of $500.00 for a “one day violation of the rule.”
I.
On review, the CCIA contends that the ALJ’s imposition of the penalty was erroneous. Essentially, the CCIA argues that Rule XIV(L)(2)(k) does not apply to insurers, and that it does not prohibit contact with an IME physician after the IME examination is complete. In any event, the CCIA asserts that it is not subject to a penalty under § 8-43-304(1), C.R.S. (1995 Cum. Supp.), because it presented a “rational argument” that the rule does not apply to its conduct. We reject these arguments.
As a preliminary matter, the CCIA asserts that Rule XIV(L)(2)(k) does not apply because the current version of the rule was adopted after the July 14 IME examination. Admittedly, Rule XIV(L)(2)(k) was adopted July 12, 1994 and became effective August 30, 1994. However, the CCIA’s contact with Dr. Glatz did not occur until October 14, 1994. Thus, the rule was in effect when CCIA’s counsel wrote to Dr. Glatz. See Kinninger v. Industrial Claim Appeals Office, 759 P.2d 766 (Colo.App. 1988) (procedural changes are applicable to ongoing claims for benefits).
Rule of Procedure XIV(L)(2)(k) provides as follows:
“2. Appointment Procedures
An appointment to the medical review panel, requires the physician to complete the Division application form, certify to and abide by the following:
k. no communication with the panel IME physician is allowed by any participant in the IME procedure other than the Division or the claimant during the examination, except when setting the appointment, by deposition, or approved by the Director, in order to assure fair and unbiased Division IMEs. The only exceptions to this would be if the Division receives written consent signed by both parties attached to written communication for the IME panel physician, which would then be forwarded to the physician by the Division; or if all parties and the physician agree on oral communication.”
The CCIA, relying on the initial paragraph of the rule, asserts that it does not apply to insurers, but regulates only physicians seeking appointment to the medical review panel. The CCIA points out that most of the rules found in (2)(a) through (j) govern the actions of physicians.
As we have previously held, interpretation of the Rules of Procedure is governed by the ordinary rules of statutory construction. See O’Grady v. Denver Public School District, W.C. No. 4-151-533, November 18, 1994. Consequently, words and phrases in the rules of procedure should be given their plain and ordinary meaning unless the result is absurd. Further, resort to rules of statutory construction is not necessary where the language of the rule is unambiguous. See Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993).
We agree with the ALJ that the language used in Rule XIV(L)(2)(k) plainly regulates the conduct of not only physicians, but also “participants” in the IME process. The rule expressly states that the Director’s objective is to “assure fair and unbiased” IMEs, and reflects the Director’s determination that this objective cannot be obtained unless “participants” in the process are restrained from making contact with the IME physician.
Moreover, the rule regulates the conduct of parties in the IME process by establishing procedures for making contact with the IME physician. The rule establishes an opportunity for depositions, or contact with the IME physician through the Division. Certainly, the provisions for depositions and consensual written contact are not aimed at regulating the doctor’s conduct, but rather the conduct of discovery by the parties.
It is true that Rule (L)(2)(k) falls under a general rule which, for the most part, governs the conduct of IME physicians. However, this fact does not negate the plain language of Rule (L)(2)(k). Further, Rule of Procedure XIV(L)(7) contemplates the imposition of a penalty on an “entity or party” which fails to comply with “any of the IME rules for which no penalty has been classified.”
We are also unpersuaded by the CCIA’s argument that Rule (L)(2)(k) does not prohibit contact with the IME physician “after the examination.” First, the rule does not expressly limit its application to pre-examination contact. Further, as the ALJ points out, the deposition provision would make little sense if the rule were intended to apply only to pre-examination contacts. Deposing the IME physician before an examination would seem to be, in the vast majority of cases, a waste of time and money.
Neither do we agree with the respondents’ assertion that it is impossible to influence an IME report after the examination is over. To the contrary, this appears to be precisely what the CCIA attempted to effect in this case. By contacting the IME physician after the IME report, the CCIA attempted to get the IME physician to give a date of MMI arguably inconsistent with that stated in the initial IME report.
Further, we are unpersuaded by the respondents’ argument that forbidding unilateral contact with the IME physician is contrary to the “legislative declaration found at § 8-40-102(1), C.R.S. (1995 Cum. Supp.). It is true that the legislative declaration states that the Act should be interpreted to “assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of any litigation.”
In our view, Rule (L)(2)(k) effects the legislative declaration by insuring that the opinion of the IME physician, as required by §8-42-107(8)(b), is perceived to be unbiased because it is not influenced by unregulated communications from either party. In fact, the preservation of unbiased IME reports is one of the legislative objectives underlying the entire IME procedure. See Colorado AFL-CIO v. Donlon, 914 P.2d 396
(Colo.App. 1995).
Finally, we are not persuaded by the CCIA’s assertion that it is not subject to a penalty because it presented “rational” arguments that it did not violate Rule (L)(2)(k). We have previously held that violation of a rule of procedure may be the basis of penalty under § 8-43-304(1) because the requirements of the rules constitute duties “lawfully enjoined” by the Director. Eg. O’Grady v. Denver Public School District, supra; Jyrkinen v. Peakload, Inc., W.C. No. 4-139-096, June 15, 199 . We have also held that imposition of a penalty under § 8-43-304(1), when based upon violation of a rule, is not proper where the insurer’s conduct was reasonable under an “objective standard.” To the contrary, we have held that respondents are not subject to a penalty for violating a rule if they present a rational argument, based in law or evidence, that the rule did not govern their conduct. O’Grady v. Denver Public School District, supra; see also Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 907 P.2d 676 (Colo.App. 1995) (insurer may be penalized for negligently violating order of an ALJ under an “objective standard measured by the reasonableness of the insurer’s action”).
Here, we agree with the ALJ’s conclusion that the CCIA’s action in writing to the IME physician contravened the plain language of Rule (L)(2)(k). Moreover, as the ALJ noted, the CCIA was aware that unauthorized contact with the IME physician was problematic under the rules, and might result in the imposition of substantial penalties. Therefore, we agree with the ALJ that the CCIA’s conduct was not objectively reasonable under the circumstances, and is subject to a penalty.
II.
Next, the claimant argues that the ALJ erroneously restricted the penalty to a single date. The claimant reasons that the CCIA’s conduct tainted the IME process for a prolonged period, and therefore, the CCIA should be subject to a penalty for daily violations as provided in §8-43-305, C.R.S. (1995 Cum. Supp.). In support of this proposition, the claimant notes that, under Rule of Procedure IV(N)(4)(c), 7 Code Colo. Reg. 1101-3 at 7, the CCIA should have admitted for temporary disability benefits in accordance with the opinion of Dr. Glatz, or alternatively, set the matter for a hearing on MMI. We disagree with the claimant’s argument.
Initially, we note that the claimant did not posture the penalty claim as a violation of Rule of Procedure IV(N)(4)(c). (Tr. p. 5). Therefore, we decline to determine whether the CCIA violated this rule, and if it did, whether violation would justify a “continuing penalty.” Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986).
The only penalty issue raised was the respondents’ improper contact with the IME physician. Section 8-43-305 provides that “every day during which [a party] . . . fails to perform any duty imposed by Articles 40 to 47 of this title shall constitute a separate and distinct violation thereof.” Here, as the CCIA argues, the respondents’ duty to refrain from contact with the IME physician existed on a continuing basis. However, the CCIA violated this injunction on only one occasion. Therefore, the ALJ properly restricted the penalty to a single day.
III.
The respondents’ final argument is that the ALJ erred in determining that the claimant did not reach MMI until July 14, 1994. The respondents assert that, under § 8-42-105(3)(a), C.R.S. (1995 Cum. Supp.) the opinion of the treating physician is binding on the parties “unless altered” by the IME physician under § 8-42-107(8)(b). The respondents reason that Dr. Glatz did not “alter” the opinion of the treating physician concerning MMI, he merely stated that he could not “comment” upon it. We reject these arguments.
Initially, the respondents misstate the law. Section 8-42-107(8)(b) does not state that the opinion of the treating physician is binding “unless altered” by the IME physician. To the contrary, the statute states that “the finding of such independent medical examiner regarding maximum medical improvement shall be overcome only by clear and convincing evidence.” Thus, it is the opinion of the IME physician which is entitled to great weight, and “the opinion of the primary care physician as to MMI is entitled to deference only when the IME procedure has not been used.”Postlewait v. Midwest Barricade, ___ P.2d ___ (Colo.App. No. 95CA2151, September 28, 1995).
Moreover, the letter of Dr. Glatz, dated October 12, 1994, states his opinion that the claimant reached MMI on July 14, 1994. The fact that Dr. Glatz declined to “comment” on the December 1993 MMI date may be relevant to his credibility, but it hardly compels the conclusion that he was of the opinion that the claimant reached MMI in December 1993. Thus, the ALJ’s order is supported by the evidence.
Because we find the ALJ’s order supported by the law, as well as substantial evidence, we need not consider the claimant’s argument that the respondents failed to raise the issue of MMI before the ALJ.
IT IS THEREFORE ORDERED that the ALJ’s order, dated January 9, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed October 12, 1995 to the following parties:
Elsa Porras, 1524 Wabash, No. 5, Aurora, CO 80220
World Service Co., % Colorado Compensation Insurance Authority, Attn: D.A. Thomas, Esq.
(Interagency Mail)
Colorado Compensation Insurance Authority, Attn: D.A. Thomas, Esq. (Interagency Mail)
William J. Macdonald, Esq., 1290 Broadway, Ste. 807, Denver, CO 80203 (For the Claimant)
By: _______________________