Opinion
W.C. No. 4-506-797.
September 12, 2003.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which imposed a penalty of $500 for failure to obey an order to attend a Division-sponsored independent medical examination (DIME). The claimant also challenges the denial of his request for temporary total disability (TTD) benefits to attend the DIME, and the ALJ's refusal to order the respondents to pay permanent partial disability (PPD) benefits pending completion of the DIME. We affirm.
The claimant sustained a compensable back injury on March 22, 2001. The respondents admitted liability for TTD benefits. On June 4, 2002, the treating physician placed the claimant at maximum medical improvement (MMI). On August 13, 2002, the treating physician assessed a permanent impairment rating of 20 percent of the whole person. The claimant concedes that by this time he had returned to work.
The respondents applied for a DIME and requested that the DIME be conducted in Denver, Colorado by a physiatrist. Significantly, the claimant resides in Colorado Springs, Colorado.
The Division of Workers' Compensation (Division) assigned a Denver physician to conduct the DIME. On October 18, 2002, claimant's counsel notified the insurer that the claimant would not attend the DIME scheduled in Denver, and that the claimant was applying for a hearing concerning whether or not the Division properly selected Denver as the location for the DIME.
On October 29, 2002, prior to any hearing being conducted pursuant to the claimant's application, the respondents filed a Motion to Compel Claimant's Attendance at Division IME. On November 12, 2002, Prehearing Administrative Law Judge Purdie (PALJ) entered an order granting the respondents' motion to compel the claimant's attendance at the DIME scheduled for the following day. The PALJ concluded that the applicable rules of procedure permit the party requesting the DIME to designate a preferred geographic location for the examination while the "non-requesting party does not designate the location." The order states that the PALJ examined both the motion "and the response," although the record before us does not contain the claimant's response to the motion.
On November 12, 2002, the same day as the PALJ's order, claimant's counsel notified respondents' counsel that the claimant would not attend the DIME. Further, claimant's counsel filed an application for hearing listing the issue as review of the PALJ's November 12 order requiring attendance at the DIME. The claimant did not attend the DIME and on November 19, 2002, the respondents filed a response to the application for hearing listing the issue of penalties under § 8-43-304, C.R.S. 2002, and § 8-43-404, C.R.S. 2002, based on the claimant's failure to attend the DIME.
Following a hearing, at which only documentary evidence was presented, the ALJ entered the order currently under review. The ALJ ruled that he lacked jurisdiction to award PPD benefits pending completion of the DIME, and that no rule of procedure requires such payment. The ALJ further held that the Act does not require the payment of TTD benefits based on the claimant's attendance at a DIME.
Next, the ALJ ruled that under Rule of Procedure XIV (3)(b) (1), 7 Code Colo. Reg. 1101-3 at 53, the Division properly appointed a Denver physician to conduct the DIME. Further, based on the claimant's "flagrant violation" of the PALJ's order to attend the DIME, the ALJ concluded the claimant's right to collect "indemnity benefits" should be "denied" under § 8-43-404(3), C.R.S. 2002, until such time as the claimant attends the DIME. Moreover, the ALJ imposed a one-time penalty of $500, pursuant to § 8-43-304(1) based on the claimant's failure to attended the DIME as required by the PALJ's order. The ALJ explicitly stated the claimant should have attended the DIME and challenged its propriety on appeal, but the claimant was obligated to comply with the order until modified or set aside.
I.
On review, the claimant disputes the imposition of any penalties based on the PALJ's order to attend the DIME. The claimant first contends the order to attend the DIME was not a lawful order because the Division could not appoint a Denver physician to perform a DIME in a "Colorado Springs case." The claimant asserts that "venue" for a DIME is controlled by CRCP 98, and that this civil rule of procedure compelled the Division to appoint a Colorado Springs physician. The claimant also asserts that any other conclusion will encourage "forum shopping" for DIME physicians. We are not persuaded by these arguments.
Rule of Procedure XIV (3)(b)(1) [formerly (3)(b)(2)] requires that the party requesting the DIME designate a "preferred geographic location." Rule of Procedure XIV (3)(c) provides the "Division shall consider to the extent possible the criteria identified in the application for IME," including the requested geographic location. In contrast, CRCP 98(c) concerns the venue for tort, contract, and other types of civil actions.
The rules of civil procedure are applicable in workers' compensation cases only to the extent that they are not inconsistent with the Act. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002). Here, the Director of the Division of Workers' Compensation (Director) has enacted specific regulations concerning the selection of the site for conduct of the DIME. The adoption of these rules was within the Director's authority, and the claimant points to no statutory provision indicating that the Director exceeded her authority in adopting these regulations. Section 8-42-101(3.5)(a)(II), C.R.S. 2002; § 8-47-107, C.R.S. 2002. Consequently, we conclude these regulations are valid and enforceable, and to the extent they may be considered contrary to the rules of civil procedure, the regulations must take precedence. Kroupa v. Industrial Claim Appeals Office, supra. It follows the Director has reserved to the Division the right to select a site for the DIME, subject to consideration of the preference of the requesting party. Therefore, neither the PALJ nor the ALJ erred in giving effect to the regulations and the Division's selection of a Denver physician to conduct the DIME.
Neither are we persuaded that this result necessarily leads to undesirable "forum shopping" for DIME physicians. First, the rules themselves contemplate that parties may file objections concerning the selection of that DIME physician, and the DIME process may be held in abeyance while considering such motions. Former Rule of Procedure XIV (3)(j), 7 Code Colo. Reg. 1101-3 at 55, recently amended to Rule of Procedure XIV (3)(n). Thus, an ALJ or PALJ may grant appropriate relief when there has been some error in the conduct of the DIME process. Presumably, if the ALJ were to determine that the Division abused its discretion in choosing the site for the DIME, as where there was some unreasonable geographic barrier to the claimant's attendance, appropriate relief could be fashioned. Moreover, the Division is only required to "consider" the geographic preference of the requesting party, but it is not obligated to honor the request. Thus, if the Division were to conclude that a requesting party designated a remote geographic site for the DIME for the purpose of obtaining some demonstrable tactical advantage, it has the discretion under the rules to avoid that result by selecting a physician [currently three-physician panel] located elsewhere.
Moreover, we perceive no basis in the record for concluding that the Division abused its discretion in setting the DIME in Denver. An administrative agency is presumed to have a valid reason for taking action in furtherance of its statutory responsibilities. Also, the administrative agency is vested with a presumption of integrity, honesty, and impartiality unless the contrary is shown. Kroupa v. Industrial Claim Appeals Office, supra; Ski Depot Rentals, Inc. v. Lynch, 714 P.2d 516 (Colo.App. 1985); Carlson v. Informatics Corp., W.C. No. 4-380-302 (November 1, 2002) (unless record shows to contrary it is presumed the Division reviewed a DIME report for completion and compliance with Rule XIX and determined that the report was complete).
Here, the claimant's contention that the Division acted improperly in assigning a Denver physician to conduct the DIME is largely based on the factual assertion contained in the claimant's brief that Denver physiatrists are "conservative and insurance oriented." (Claimant's Brief at 4). The unstated implication of the claimant's argument is that Colorado Springs physiatrists are, by comparison, more claimant oriented, and that the fortuitous circumstance of the claimant's residence entitles him to a DIME physician with a more favorable bias. Of course, physicians selected by the DIME process are selected because of the reduced likelihood of bias. Colorado AFL-CIO v. Donlon, 914 P.2d 396, 402 (Colo.App. 1995). In any event, factual representations contained in briefs may not substitute for that which must appear of record. Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987). The claimant presented no evidence, statistical or otherwise, from which it could be inferred that Denver physicians carry such a demonstrable bias in favor of insurance companies and against claimants that the Division's selection of the Denver physician amounts to an abuse of discretion. Since the claimant presented no such evidence the claimant has failed to overcome the presumption of regularity accorded the Division's selection, and we need not reach the question of what type of proof might be required to establish a bias sufficient to find an abuse of discretion in the selection of a DIME physician.
II.
The claimant next contends that because he was entitled to have an ALJ review the PALJ's order to attend the DIME, it was improper to assess penalties against the claimant under § 8-43-404(3) and § 8-43-304(1) pending review of the PALJ's order. In support of this argument for claimant asserts that any requirement that he obey the PALJ's order to attend the DIME while review is pending renders the review "meaningless." We disagree.
Section 8-43-207.5(2), C.R.S. 2002, provides that a PALJ has authority to issue interlocutory orders, issue orders concerning the production of documents and the conduct of depositions, and to make "evidentiary rulings." Section 8-43-207.5(3), C.R.S. 2002, provides that an order entered by a PALJ "shall be an order of the director and binding on the parties," and that such an order "shall be interlocutory."
Because the rulings of a PALJ, except those approving settlements, occur in the context of a "prehearing conference," and because such orders are considered to be interlocutory, our courts have held that an ALJ retains jurisdiction to review the interlocutory rulings of a PALJ. See Industrial Claim Appeals Office v. Orth, 965 P.2d 1246, 1254 (Colo. 1998) (because a prehearing conference is followed by a regular hearing the propriety of the PALJ's ruling may be addressed at the subsequent hearing); Dee Enterprises v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA2040, July 31, 2003) (ALJ had jurisdiction to modify PALJ's prehearing order concerning admission of depositions at the evidentiary hearing).
However, it does not follow that merely because the orders of a PALJ are subject to review by an ALJ that a party may elect, without fear of consequences, to ignore the rulings of the PALJ in hopes of obtaining a more favorable ruling before an ALJ. First, § 8-43-207.5(3) expressly provides that the rulings of a PALJ are " binding on the parties." (Emphasis added). The obvious purpose of this statutory requirement is to ensure that parties obey rulings of the PALJ unless and until overturned or modified by an ALJ.
Moreover, the reason for making an order of a PALJ binding on the parties is inherent in the nature of the rulings which the statute authorizes the PALJ to make. The PALJ is granted statutory authority to make prehearing discovery and evidentiary rulings so as to facilitate the conduct of the hearing itself and reduce the caseloads of the ALJs. Industrial Claim Appeals Office v. Orth, 965 P.2d at 1253. If a party is free to ignore the rulings of a PALJ "pending review" by an ALJ, compliance with PALJ rulings will become voluntary rather than "binding." Under that scenario the hearing process might well be prolonged in cases where parties choose to ignore PALJ orders, particularly those involving evidentiary DIMEs and discovery issues, for tactical reasons and in hopes of obtaining a favorable outcome before an ALJ. Consequently, we conclude that if a party chooses to defy the order of a PALJ on the theory that the PALJ's order is illegal, it does so at its peril and the party may be penalized under the applicable statutes if the PALJ's order is ultimately upheld by the ALJ.
We recognize that orders requiring the payment of benefits by respondents are generally considered to be stayed pending final appellate review of the award. Section 8-43-401(2)(a), C.R.S. 2002 (after all appeals have been exhausted insurers and self-insured employers shall pay benefits within 30 days of when any benefits are due); Industrial Commission v. Continental Investment Co., 85 Colo. 475, 277 P. 303 (1929) (employer may not be penalized for failing to comply with order to pay benefits during a good faith appeal to courts because the potential penalties might intimidate an employer into foregoing an otherwise valid appeal). However, in contrast, the order of a PALJ is not substantive and cannot require the payment of any benefits. Thus, a PALJ's order does not present the difficulty of choosing between paying a potentially invalid award of benefits or facing a large penalty should the award ultimately be upheld on appeal. The PALJ's order is restricted to discovery and evidentiary matters which may affect the outcome of the case, but the PALJ's order does not constitute the outcome. Further, the delay between entry of a PALJ's interlocutory order and review of the order by an ALJ will often be much less than the delay between entry of the ALJ's final order and appellate review by the Industrial Claim Appeals Office and the courts. Moreover, in cases such as this, the PALJ's order required a single action (attendance at the DIME), and presented no risk of a continuing violation.
Neither do we agree with the claimant that compliance with the order of the PALJ pending review by an ALJ necessarily deprives a party of meaningful review. For instance, if the order of the PALJ requires that certain evidence be produced, and an ALJ later determines that the order was improper, such evidence might be excluded at the hearing. If, as in this case, a PALJ orders a claimant to attend a DIME, but an ALJ later determines that the DIME process was improperly conducted, the original DIME might be invalidated and a new DIME ordered. In those rare cases where the PALJ's order threatens some irreparable injury to a party, the party may request a stay or protective order pending review.
For these reasons, we reject the claimant's assertion that he may not be penalized for failing to comply with a valid order of a PALJ pending review of that order by an ALJ.
III.
The claimant next contends that because § 8-43-404(3) imposes a specific penalty for failure to attend a DIME, the claimant may not be subjected to a penalty under § 8-43-304(1) for failure to obey the PALJ's order to attend the DIME. The claimant reasons that § 8-43-304(1) only provides penalties for violations "for which no other penalty has been specifically provided." We disagree with this argument.
It is undisputed that § 8-43-404(3) establishes sanctions for the refusal to attend a DIME after one of the specified authorities enters an order to do so. However, the availability of these sanctions does not preclude the imposition of a penalty under § 8-43-304(1) for violation of a lawful order of a PALJ. Section 8-43-304(1) divides conduct into four categories. The language "for which no penalty has been specifically provided" applies to the third category of conduct (failure or refusal to perform any duty lawfully enjoined within the time prescribed by the Director or panel), but does not apply to the fourth category of conduct, refusal to "obey any lawful order made by the director or panel." Holliday v. Bestop, Inc., 23 P.3d 700, 706 (Colo. 2001). The rationale for the decision in Holliday was not only the language of the statute itself, but the court's conclusion that the structure of the statute reflects the General Assembly's determination that "violation of a statutory provision or an administrative mandate [is] a less egregious wrong than disregarding a tribunal's lawful order." Id. at 706. Thus, imposition of a penalty under § 8-43-304(1) when based on violation of a lawful order represents a vindication of the authority of the Director, ALJ, PALJ or panel, not merely a sanction for the underlying misconduct (in this case the failure to attend the DIME after direction to do so).
The imposition of sanctions under § 8-43-404(3) creates a two-tiered system designed to encourage a claimant's cooperation with required medical examinations, and establishes a graduated system of punishments for noncooperation. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). In contrast, § 8-43-304(1), to the extent it authorizes penalties for violation of a lawful order, is designed to punish noncooperation with the adjudicative process established for determination of workers' compensation cases, and to enocurage compliance with lawful orders. Holliday v. Bestop, Inc., supra. Thus, imposition of both penalties is not inherently inconsistent nor in violation of the provisions of the statute.
We recognize that in Giddings v. Industrial Claim Appeals Office, 39 P.3d 1211, 1213 (Colo.App. 2001), the court stated that in cases where the Act imposes a specific penalty for particular conduct, and there has also been a violation of an order, the ALJ "may, in his or her discretion, order penalties based on either statute." Of course, the issue in Giddings was whether the availability of a specific penalty for failure to pay medical benefits precluded a penalty under § 8-43-304(1) for violation of an order to pay the benefits. We do not understand the court to have ruled that the ALJ must choose one penalty to the exclusion of the other when both are applicable.
IV.
The claimant next contends the ALJ erred in denying TTD benefits based on the claimant's wage loss experienced because of his attendance at that DIME. We perceive no error.
An award of TTD benefits is appropriate if the (1) injury or occupational disease causes disability; (2) the injured employee leaves work as a result of the injury; (3) the temporary disability is total and lasts for more than three regular working days' duration. Section 8-42-103(1)(a), C.R.S. 2002; § 8-42-105(1), C.R.S. 2002; PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Further, the right to TTD benefits ceases once the claimant reaches MMI, and may not be reinstated unless the claimant's condition worsens and causes additional impairment of the claimant's earning capacity. Section 8-42-105(3)(a), C.R.S. 2002; City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997). Under this statutory scheme TTD benefits are designed to protect against actual loss of earnings which the claimant experiences during the healing period. Lunsford v. Sawatsky, 780 P.2d 76 (Colo.App. 1989).
Here, the claimant does not dispute the determination that he reached MMI in June 2002, nor has he shown that he is now temporarily disabled from pursuing his pre-injury employment as a result of the industrial injury. Hence, the claimant has not shown any statutory grounds to award TTD benefits after reaching MMI. Neither does the claimant point to a provision of the Act which requires the respondents to compensate the claimant for any loss of earnings which he may incur as a result of attendance at a statutorily mandated DIME, and we may not legislate such a requirement. Humane Society of the Pikes Peak Region v. Industrial Claim Appeals Office, 26 P.3d 546 (Colo.App. 2001) (court may not read non-existent provision into the statute).
V.
The claimant next contends he is entitled to receive PPD benefits, based on the treating physician's 20 percent whole person rating, pending completion of the DIME. The claimant bases this argument on an analogy to Rule of Procedure IV (G)(1), 7 Code Colo. Reg. 1101-3 at 5, which provides that when insurers terminate TTD benefits under Rule IX (without a hearing) the "admission of liability form shall contain an admission for permanent disability benefits, if any." We are not persuaded by the claimant's argument.
The effect of Rule IV (G)(1) is to require respondents, who unilaterally terminate TTD benefits under Rule IX, to continue paying TTD benefits until the treating physician provides an impairment rating on which an admission for PPD benefits can be predicated. If the respondents accept the treating physician's rating, they may file an admission accordingly, or they may request a DIME to challenge the rating. What the respondents may not do is terminate TTD benefits and take no position with respect to the claimant's entitlement to PPD benefits. See Monfort Transportaion v. Industrial Claim Appeals Office, 942 P.2d 1358 (Colo.App. 1997).
However, no provision of the Act or rules requires the respondents, if they disagree with the treating physician's rating, to admit the rating and pay PPD benefits pending completion of the DIME. To the contrary, Rule of Procedure IV (N) (5), 7 Code Colo. Reg. 1101-3 at 7.03 provides that within 30 days of receipt of the impairment rating issued by the treating physician the respondents must file an admission or request a DIME. See Human Resource Co. v. Industrial Claim Appeals Office, 984 P.2d 1194 (Colo.App. 1999).
As explained in Monfort Transportation v. Industrial Claim Appeals Office, supra, "insofar as the rules permit a termination of benefits based on the treating physician's opinion concerning MMI, the rules should also require insurers to determine the extent of the claimant's PPD, and to admit any permanent disability." 942 P.2d at 1361. However, nothing in Monfort suggests that if the respondents wish to contest the treating physician's rating that they are somehow bound to accept it until the DIME is completed. Indeed, in Monfort, the problem was that the respondents terminated TTD based on a finding of MMI but took no position on the issue of PPD benefits.
The claimant's assertions notwithstanding, we perceive no denial of equal protection in this interpretation of the Act and rules. In our view, claimants who face unilateral termination of TTD benefits without a hearing are not similarly situated to claimants seeking permanent disability benefits. Once a claimant establishes a right to TTD benefits the burden is on the respondents to establish grounds to terminate the temporary benefits. See Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 18 P.3d 790 (Colo.App. 2000). Thus, in cases of unilateral termination of temporary benefits without a hearing, it is appropriate to be solicitous of the claimant's entitlement to ongoing benefits pending a hearing on the merits. However, when TTD benefits have been properly terminated under the rules and the respondents have decided to challenge the permanent impairment rating issued by the treating physician the respondents are not challenging, without benefit of a hearing, the claimant's right to receive PPD benefits under any existing admission or order. Indeed, as the ALJ noted, jurisdiction to determine PPD is dependent on the completion of the DIME and the ALJ may not consider the question until the DIME is completed. Section 8-42-107(8)(c), C.R.S. 2002; Town of Ignacio v. Industrial Claim Appeals Office, 70 P.3d 513 (Colo.App. 2002). We see no basis for compelling respondents to admit involuntarily that which they are legally entitled to contest. Neither may we legislate a provision which is not contained in the Act or rules. Humane Society of the Pikes Peak Region v. Industrial Claim Appeals Office, supra.
IT IS THEREFORE ORDERED that the ALJ's order dated April 11, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
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. 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 order were mailed to the parties at the addresses shown below on September 12, 2003 by A. Hurtado.
Robert E. Kennedy, 12555 Herring Rd., Colorado Springs, CO 80908
AAA Concrete Contracting, 710 Valley St., Colorado Springs, CO 80915
Mid-Century Insurance Company, 7535 E. Hampden Ave., #200, Denver, CO 80231
Rebecca Greben, IME Coordinator, Tower 2, #640, Division of Workers' Compensation — Interagency Mail
Subsequent Injury Fund, Tower 2, #500, Division of Workers' Compensation — Interagency Mail
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)