Opinion
W.C. No. 4-156-147
May 20, 2003
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Muramoto (ALJ) which held the parties are bound by the date of maximum medical improvement (MMI) determined by an "agreed upon" independent medical examination (IME) physician and, in any event, the claimant failed to overcome the IME physician's finding of MMI by clear and convincing evidence. The claimant also contends the ALJ erred in determining that a claim for penalties was barred by the statute of limitations contained in § 8-43-304(5), C.R.S. 2002. We affirm.
The claimant sustained a compensable knee injury in December 1992. On March 5, 1995, the claimant underwent knee surgery to treat the injury. During the course of that surgery spinal anesthesia was administered, and as a consequence the claimant sustained a dural puncture. Thereafter, the claimant experienced continuing symptoms of what she believed to be an unrepaired cerebral spinal fluid (CSF) leak. The claimant received extensive treatment and numerous examinations for this condition.
In February 2000, the respondents filed a notice and proposal to select an IME on the question of whether the claimant had reached MMI. See § 8-42-107(8)(b)(II), C.R.S. 2002 (permitting respondents to seek IME on issue of MMI under certain circumstances). In October 2000, the claimant underwent an IME by a physician whom the ALJ found was "agreed upon" by the parties. The IME physician opined the claimant was at MMI in October 2000 and had a 23 percent impairment of the lower extremity. The IME physician further opined there was no causal relationship between the dural puncture and the claimant's ongoing symptom complex, and no further procedures were required. The respondents filed a final admission of liability based on the IME physician's report.
The claimant sought a hearing to overcome the IME physician's determination that she reached MMI, particularly with respect to the effects of the alleged CSF leak. However, after the presentation of extensive evidence, the ALJ ruled that because the parties mutually agreed upon the IME, the IME physician's finding of MMI was binding under the provisions of former § 8-42-107(8)(b)(II), C.R.S. 1997. The ALJ reasoned that the General Assembly did not abolish the binding nature of an agreed upon IME until 1998, and that the statutory change applies only in cases where the claimant's injury occurred on or after August 5, 1998. See 1998 Colo. Sess. Laws, section 5, ch. 313 at 1429, 1432. In any event, the ALJ found the claimant did not overcome the IME physician's finding of MMI by clear and convincing evidence.
The claimant also asserted a claim for penalties based on the insurer's failure timely to pay various medical benefits and related expenses. Although the claimant alleged the misconduct had been occurring for many years, the ALJ found the claimant did not make a "request" for an award for penalties until she filed the Application for Hearing on October 19, 2001. The ALJ determined this was more than one year after the claimant knew of the conduct giving rise to the penalty claim because the claimant complained about the respondents' conduct to the claims services division of the Division of Workers' Compensation (DOWC) in May 2000. Thus, the ALJ concluded the claim for penalties is barred by the one year statute of limitations contained in § 8-43-304(5).
I.
On review, the claimant contends the ALJ erred in determining that she was bound by the MMI determination of the "agreed upon" IME physician. The claimant argues the Division IME process is procedural and, therefore, is controlled by the law in effect on the date the IME was requested. The claimant reasons the statute permitting the parties to select a "binding" IME was repealed in 1998 and, therefore, has no application to the IME which the respondents requested in February 2000. As a corollary, the claimant argues the ALJ erred in finding the IME physician's finding of MMI was not overcome by clear and convincing evidence presented at the hearing. Because we agree with the ALJ that the IME physician's finding of MMI was binding, we do not reach the second issue.
The provision for a binding "agreed upon" IME was present in § 8-42-107(8)(b) from its inception in 1991. See 1991 Colo. Sess. Laws, ch. 219 at 1309. However, in 1998 the General Assembly amended § 8-42-107(8)(b)(II) by striking the references to a "binding" agreed upon IME, and inserting a reference to the newly created IME procedure established by § 8-42-107.2, C.R.S. 2002. As the ALJ noted, the General Assembly specified that the changes were limited to injuries occurring on or after the effective date of the statute, August 5, 1998.
It is true, as the claimant argues, that the IME process is procedural in nature. Consequently, if the General Assembly had not specifically limited the 1998 amendments to injuries occurring after August 5, 1998, the amendments would have applied to all pending cases requiring an IME. See Rosa v. Industrial Claim Appeals Office, 885 P.2d 331 (Colo.App. 1994). However, the presumption that procedural changes are immediately applicable to pending claims may be altered if the General Assembly expressly provides otherwise. Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 20 P.3d 1209 (Colo.App. 2000).
Here, the General Assembly expressly provided that the modification of § 8-42-107(8)(b)(II), and hence the elimination of the binding agreed upon IME, applies only to injuries occurring after August 5, 1998. Hence, the mere fact the respondents requested an IME in February 2000 did not mean the applicability of the binding IME process was controlled by the law as it existed in 2000. To the contrary, because the claimant's injury occurred before August 5, 1998, the parties were free to agree to a binding IME.
We are cognizant of § 8-42-107.2(6), C.R.S. 2002, which provides as follows:
This section was enacted by House Bill 98-1062, as enacted at the second regular session of the sixty-first general assembly, as a remedial statute and is procedural in nature. The purpose of this section is to improve and simplify remedies already existing for the enforcement of rights and the redress of injuries under the workers' compensation laws of Colorado. This section effected procedures related to the selection of an IME and shall be applicable to all open cases with a date of injury on or after July 1, 1991, for which a division IME has not been requested, pursuant to § 8-42-107.
Section 8-42-107.2(6) was enacted in 1999. 1999 Colo. Sess. Laws, ch. 86 at 254-255. Arguably, this statute could be read as implicitly repealing the 1998 amendment insofar as it left intact the availability of a binding IME for injuries occurring before August 5, 1998. However, when the General Assembly enacted 8-42-107.2(6), it was presumably aware that it previously provided the agreed upon IME remained a viable procedure for injuries occurring before August 5, 1998. Further, it is presumed the General Assembly does not intend to repeal an existing statute without so declaring. Rodriquez v. Nurseries, Inc., 815 P.2d 1006 (Colo.App. 1991). The 1999 amendment refers to "this section" [ 8-42-107.2], and makes no specific reference to § 8-42-107(8)(b)(II). Neither does the 1999 amendment make any explicit reference to the process by which parties could agree to a binding IME on the issue of MMI for injuries before August 5, 1998. Under these circumstances, we decline to infer that § 8-42-107.2(6) intended an implicit repeal of the parties' right to select a mutually agreeable and binding IME. Instead, the binding IME process remains a permissible process for those injuries to which it applies, and § 8-42-107.2 must be harmonized to the extent there is any inconsistency between the two procedures.
Because the claimant's injury occurred before August 5, 1998, and because the claimant agreed to the binding IME, the ALJ correctly ruled the claimant could not seek to overcome the IME physician's finding of MMI. To the extent the claimant contends she did not agree to become bound by the IME, or to waive her right to challenge the IME, we disagree. As the ALJ found, the letter from claimant's former counsel to respondents' counsel dated February 24, 2000, clearly states counsel's understanding that the parties were negotiating to determine the identity of a physician to conduct a binding IME. In fact, the word "binding" is used twice in that letter. Thereafter, numerous orders from a prehearing- ALJ (PALJ) refer to an "agreed upon" IME, including the order of August 2, 2000, in which the PALJ found the parties "agree that Dr. Macaulay will conduct the agreed-upon Division Independent Medical Examination." The August 2 order was issued after claimant's current counsel entered an appearance. Thus, there is ample evidence from which the ALJ could find the claimant, through her attorneys, consented to the binding IME. See Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988) (waiver is a factual determination dependent on evidence the party voluntarily relinquished a known right). In light of this determination, we need not consider the claimant's argument that she presented sufficient evidence to overcome the IME's finding of MMI.
II.
The claimant next contends the ALJ erred in determining the claim for penalties was barred by the statute of limitations contained in § 8-43-304(5). The claimant first argues that the statute of limitations does not apply to this claim because penalties are a "substantive right" and, therefore, the right to penalties is controlled by the law in effect on the date of the claimant's 1992 injury. The claimant points out the statute of limitations was not enacted until 1994. The claimant further contends that her May 2000 letter to the claims services division of the DOWC constituted a timely "request" for penalties. We disagree with these arguments.
The claimant's theory of the case was that the respondents repeatedly delayed or failed to pay medical benefits and related expenses. Rather than assert that each instance of alleged non-payment or late payment justified a separate penalty, the claimant sought to demonstrate "that a number of these bills have not been paid dating back to 1999," and that this course of conduct justified the imposition of penalties under § 8-43-304(1), C.R.S. 2002, commencing June 6, 2000, 21 days after the claimant's letter to the claims division. (Tr. April 2, 2002, Pp. 13-15).
Section 8-43-304(5) was enacted in 1994 as a part of SB-94-193, and the act contains no legislative direction concerning the effective date of the bill and its provisions. 1994 Colo. Sess. Laws, ch. 309 at 1879. Consequently, the ordinary rules of construction apply, and substantive provisions are presumed to apply prospectively and procedural changes apply to subsisting or pending claims for relief. Rosa v. Industrial Claim Appeals Office, supra.
There can be no doubt that § 8-43-304(5) is a statute of limitations. Spracklin v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA0274, October 24, 2002). Statutes of limitation are procedural and changes in such statutes may be applied to subsisting claims for relief without offending the constitutional prohibition against retrospective legislation. This is true because the substitution of one remedy for another "does not impair a vested right or impose a new duty because there is no such thing as a vested right in remedies." Vetten v. Industrial Claim Appeals Office, 986 P.2d 983, 986 (Colo.App. 1999); see also, Woodmoor Improvement Association v. Property Tax Administrator, 895 P.2d 1087 (Colo.App. 1994). It is certainly true that the right to penalties is substantive; therefore, some modifications to penalty statutes implicate substantive rights and should be applied prospectively. Diversified Veterans Corporate Center v. Hewuse, 942 P.2d 1312 (Colo.App. 1997). However, that principle does not apply to the procedural statute of limitations contained in § 8-43-304(5). Kessler v. Mountain Meadows Nursing Center, W.C. No. 3-616-169 (September 27, 2001). Therefore, the ALJ did not err in applying the 1994 statute of limitations to the claim for penalties even thought the claimant's injury occurred in 1992.
The claimant next contends the ALJ erred in finding that her letter to the claims services branch of the DOWC did not constitute a "request for penalties" within the meaning of § 8-43-304(5). In this regard, the claimant notes the letter states that she understands that "Penalties and Sanctions are in order for disobeying a court order" regarding late rent payments, and requests the individual at the claims services branch to "check with the Director on this issue."
Section 8-43-304(5) states that a "request for penalties shall be filed with the director or administrative law judge" within one year after a party first knew or reasonably should have known the facts "giving rise to a possible penalty." Here, the ALJ determined the claimant must have known some of the facts giving rise to the penalty claim by the time she wrote the letter of May 16, 2000. Therefore, unless the letter itself constituted a "request" for penalties to the director, the claim for penalties is barred because the Application for Hearing was filed more that one year after May 2000.
The statute itself does not define a "request," but does state to whom the request must be made. In an apparent attempt to clarify this gap in the statute the Director adopted former Rule of Procedure VIII (N), currently found (with minor changes) at Rule VIII (O), 7 Code Colo. Reg. 1101-3 at 31.02-31.03. The rule, which establishes procedures for "requesting" penalties under § 8-43-304, provides that if a party is requesting the Director to assess a penalty the party must "file a written motion with the director requesting the assessment of penalties wherein the grounds therefore are stated with specificity." If the opposing party does not respond to the motion, the Director may issue an order to show cause why penalties should not be imposed.
Here, the claimant did not "file a motion" with the Director requesting the imposition of penalties. Rather, the claimant wrote a letter requesting that an employee of the DOWC consult with the Director concerning the imposition of penalties. Of course, it is impossible to determine whether such consultation occurred because the record does not indicate the Director issued an order to show cause.
More importantly, we note that Rule of Procedure XI (B)(I), 7 Code Colo. Reg. 1101-3 provides that when a document is filed with the Division "a copy of the document shall be mailed to each party to the claim and attorney(s) of record, if any." Here, there is no indication the May 16 letter was provided to the respondents or the respondents' counsel. Thus, the letter cannot fairly be construed as a valid motion or "request" for penalties under the Rules of Procedure. The failure to provide the required notice of the request is significant since one of the purposes of requiring a formal "request" is to notify the potentially liable party that an allegedly compensable event has occurred and convey the expectation that compensation (penalties) is anticipated. See Martin v. Industrial Commission, 608 P.2d 366 (Colo.App. 1980); Kessler v. Mountain Meadows Nursing Center, supra. This is consistent with the purpose of the statute of limitations, which is to promote justice, discourage delay, and preclude the prosecution of stale claims. Spracklin v. Industrial Claim Appeals Office, supra. The fact the claimant was pro se when the letter was written does not excuse her failure to comply with the applicable rules governing requests for penalties. Dyrkopp v. Industrial Claim Appeals Office, 30 P.3d 821 (Colo.App. 2001).
III.
The claimant's Brief in Support of Petition to Review contains a "Summary of Issues on Appeal" (part II) which lists several "issues" not discussed above, and asserts the evidence is insufficient to support the order. (Brief at Pp. 4-5). However, part IV of the claimant's brief containing the claimant's specific arguments does not mention these issues, rendering it difficult for us to ascertain the precise basis of the claimant's contentions. To the extent we are able, we have reviewed the pertinent portions of the record and conclude the findings are supported by the evidence. Section 8-43-301(8), C.R.S. 2002.
We also note the claimant, apparently acting pro se, filed a Reply to Opposition in Support of Petition to Review. However, the statute does not provide for such a filing, and the claimant was not granted permission to file this pleading. Consequently, it has not been considered.
IT IS THEREFORE ORDERED that the ALJ's order dated June 13, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Robert M. Socolofsky
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, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed May 20, 2003 to the following parties:
Joanne Arczynski, P. O. Box 5705, Vail, CO 81658
Management, Club Mediterranee of Colorado, P. O. Box 3337, Frisco, CO 80443-3337
Legal Department, Pinnacol Assurance — Interagency Mail Brad R. Irwin, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For Claimant)
Thomas L. Kanan, Esq., 1700 Broadway, #1900, Denver, CO 80290-1901 (For Respondents)
By: A. Hurtado