Opinion
W.C. No. 4-393-063.
January 30, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which refused to require the respondents to pay for a follow-up Division-sponsored independent examination (DIME). We affirm.
The claimant suffered an admitted industrial injury to her right upper extremity. On April 19, 1999, an authorized treating physician (ATP) placed the claimant at maximum medical improvement (MMI). The respondents then filed a Final Admission of Liability (FAL) which terminated temporary disability benefits.
The claimant requested a DIME which was performed on September 25, 2000. The DIME physician opined the claimant was not at MMI and recommended trigger point injections and a deep myofascial release. Relying on the DIME physician's opinions, the respondents reinstated temporary disability benefits and provided additional medical treatment. When the claimant was again placed at MMI by another ATP, a follow-up DIME was conducted. The DIME opined the claimant was not at MMI until she received trigger point injection therapy and the myofascial release. On October 14, 2002, the claimant placed at MMI by another ATP. On April 23, 2003, the respondents filed another FAL, which terminated temporary disability benefits and admitted liability for scheduled disability benefits. The claimant did not timely object to the FAL as amended in May 2003.
Thereafter, the claimant requested an order imposing penalties against the respondents under § 8-43-304(1), C.R.S. 2003. The claimant argued the respondents' termination of temporary disability benefits without obtaining another follow-up DIME violated the Workers' Compensation Act (Act).
The ALJ found the claimant failed to prove a violation of any statute, rule, or lawful order. Therefore, the ALJ denied the request for penalties. Further, the ALJ determined the respondents are not liable for the cost of another follow-up DIME.
The claimant's petition to review alleged the ALJ erroneously denied the request for penalties and erroneously refused to require the respondents to pay for a third DIME examination. However, the claimant's brief in support of the petition to review stated that the "arguments to be made in this case are simply duplicate of the arguments which were made by the claimant" in Perales v. Napier Enterprises, W.C. No. 4-516-705. The claimant then incorporated the arguments which were made in Perales.
The claimant has not provided a copy of record in Perales v. Napier Enterprises, supra, and we do not have the Perales file because our order denying the appeal in that case was issued on December 12, 2003. However, our order indicates that the claimant in Perales underwent a DIME to dispute an ATP's determination of MMI. The DIME physician determined the claimant was not at MMI. Additional treatment was provided and the respondents filed a FAL after the claimant was placed at MMI for a second time by an ATP. The claimant timely objected to the FAL. However, the claimant did not formally request another DIME examination within 30 days of the FAL. A follow-up DIME was conducted anyway but an ALJ ruled the respondents were not responsible for the cost of the follow-up DIME.
On appeal, the Perales claimant argued that once a 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 reasoned that where the DIME physician determined 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), C.R.S. 2003. Therefore, the Perales claimant contended he was automatically entitled to a follow-up DIME paid for by the respondents after the second determination of MMI by the ATP, regardless of whether there was a formal request for another DIME examination.
The claimant also argued 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, a claimant would be required to ask for repeated DIMEs at great expense, and the case would not reach a satisfactory conclusion. Instead, the Perales claimant asserted 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 rejected the claimant's arguments in Perales, stating:
"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."
Therefore, in Perales v. Napier Enterprises, supra, we rejected the notion that a DIME physician's opinion the claimant is not at MMI at the time of the first DIME examination is controlling over an ATP's later opinion concerning MMI. We reasoned that 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. Therefore, we concluded that 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. Under these circumstances, we concluded that the DIME physician's original opinion concerning MMI may be relevant, but it is not "controlling" as to whether the claimant reached MMI at some subsequent point in time.
The claimant in Perales v. Napier Enterprises, supra, also suggested that the ALJ afford the DIME physician's opinion presumptive weight in a situation not specifically mandated by the statute. Because the Court of Appeals previously noted that the "opinions of a DIME physician have only been given presumptive effect when expressly required by statute," we also rejected this argument. See 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).
Further, we rejected the vicious cycle argument by the claimant in Perales. We pointed out that 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. If the treating physician resists providing further treatment, the claimant has a 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).
We decline to depart from the reasoning of our order in Perales. Furthermore, this case is factually removed from the situation presented in Perales. Here, unlike the facts in Perales, the ALJ found the claimant did not object to the respondents' amended April 2003 FAL within the time prescribed by § 8-43-203(2)(b)(II), C.R.S. 2003. The claimant does not dispute this finding and absent a transcript we must presume the ALJ's findings are supported by the record. See Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). The ALJ's finding also supports the conclusion that the claim was automatically closed on the issue of MMI. Section 8-43-203(2)(b)(II); Dyrkopp v. Industrial Claim Appeals Office, 30 P.3d 821 (Colo.App. 2001). It follows the ALJ did not err in refusing to order the respondents to pay for another follow-up DIME on the issue of MMI.
Finally, the Perales appeal did not involve a request for penalties and the claimant makes no specific argument in support of her contention that the respondents wrongfully terminated disability benefits by filing the amended FAL without obtaining another follow-up DIME. Moreover, the ALJ's determination that the claimant failed to prove grounds for the imposition of penalties under § 8-43-304(1), C.R.S. 2003, is consistent with the applicable law. See Allison v. Industrial Claim Appeals Office, 916 P.2d 623 (Colo.App. 1995) (no penalties may be imposed under § 8-43-304(1) in the absence of proof of a violation of a statute, rule or lawful order).
IT IS THEREFORE ORDERED that the ALJ's order dated September 15, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill WhitacreNOTICE
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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed January 30, 2004 to the following parties:
Marisa Vogt-Cowand-Feeley, 3636 E. Inverness, Apt. 2020, Mesa, AZ 85206
Lynn Nield, Century Communications, 2221 E. Bijou, #101, Colorado Springs, CO 80909
Fredda Fitzpatrick, Adjuster, Sentry Insurance, P. O. Box 29466, Phoenix, AZ 85038
DIME Unit, Tower 2, #640, Division of Workers' Compensation — Interagency Mail
Kat Pennucci, Subsequent Injury Fund, Tower 2, #630, Division of Workers' Compensation — Interagency Mail
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Kent L. Yarbrough, Esq., P. O. Box 22833, Denver, CO 80222 (For Respondents)
BY: A. Hurtado