Opinion
W.C. No. 4-166-429
May 22, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which struck the Division-sponsored independent medical examination (DIME) report and denied medical impairment benefits based on the DIME physician's rating. We affirm.
The relevant facts are undisputed. In 1992, the claimant suffered a compensable injury. A treating physician placed the claimant at maximum medical improvement (MMI) in 1993, and assigned a zero rating for permanent impairment.
The respondent filed a Final Admission of Liability dated March 25, 1994, which admitted liability for zero permanent partial disability benefits. The claimant objected on grounds he was not at MMI and he was entitled to benefits for permanent medical impairment.
No further action was taken until 1995, when the claimant sought an award of future medical benefits. The claimant also alleged a new injury resulting from the aggravation of the 1992 injury. On November 4, 2000, the ALJ found the claimant failed to prove a new injury. The ALJ also denied the request for future medical treatment of the 1992 injury.
On November 30, 2000, the claimant requested a DIME by filing a Notice and Proposal to Select a DIME. On February 15, 2001, Dr. Sparr performed a DIME and assigned a 15 percent whole person impairment rating.
Relying on § 8-42-107.2, C.R.S. 2001, the respondent alleged the claimant's Notice and Proposal to Select a DIME was untimely filed. The ALJ agreed. Therefore, the ALJ granted the respondent's motion to strike the DIME report, and denied the claimant's request for permanent partial disability benefits based on Dr. Sparr's rating. The claimant timely appealed the ALJ's order.
Section 8-42-107.2 creates a procedure for the selection of an independent medical examiner for purposes of resolving disputes under § 8-42-107. Section 8-42-107.2(2)(a)(I)(A) and § 8-42-107.2(2)(b) provide that a claimant who disputes the treating physician's medical impairment rating must file a Notice and Proposal to Selection a DIME within 30 days of:
"the date of mailing of a final admission of liability by the insurer or self-insured employer that includes an impairment rating issued in accordance with § 8-42-107."
The claimant first contends § 8-42-107.2 does not apply to this claim because his injury occurred 6 years before the effective date of the statute. We disagree.
Section 8-42-107.2 was enacted by House Bill 98 1062 (HB 1062) and originally applied to injuries which occurred on or after August 5, 1998. ( See 1998 Colo. Sess. Laws. ch 313, at 1432). However, in the next legislative session, the statute was amended by House Bill 99-1049 to include § 8-42-107.2(6), which provides that HB 1062 is a "remedial statute and is procedural in nature." Subsection 8-42-107.2(6) also states that HB 98-1062 "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."
When interpreting a statute, the primary objective is to effect the legislative intent. The best indicator of the legislative intent is the language of the statute itself. Consequently, words and phrases in the statute should be given their plain and ordinary meanings unless the result is absurd. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998); Humane Society of the Pikes Peak Region v. Industrial Claim Appeals Office, 26 P.3d 546 (Colo.App. 2001). Where the plain language of a statute is clear and unambiguous, it must be applied as written. Holliday v. Bestop Inc. 23 P.3d 700 (Colo. 2001).
Section 8-42-107.2 is unambiguous. Subsection 8-42-107.2(6) expressly states that § 8-42-107.2 is applicable to all workers' compensation claims with a date of injury on or after July 1, 1991 for which no DIME has been requested. It follows that because the effective date of § 8-42-107.2(6) was September 1, 1999, the General Assembly intended § 8-42-107.2 to apply to all open claims where no DIME had been requested as of September 1, 1999.
Moreover, we reject the claimant's contention that § 8-42-107.2 cannot be applied to the facts of this claim because it was impossible for him to request a DIME within 30 days of the date of the Final Admission, given that the statute was not enacted until 1999. In Vetten v. Industrial Claim Appeals Office, 986 P.2d 983, 986 (Colo.App. 1999), the court held that "if intended by the General Assembly, legislation can be given retroactive effect without being unconstitutional. Ibid at 986. In so holding, the Vetten court stated:
"[a]pplication of a statute is not rendered unlawful merely because the facts upon which it operates occurred before the adoption. Further, application of a statute to a subsisting claim for relief does not violate the prohibition of retrospective legislation when the statute effects a change that is only procedural or remedial in nature. This is true because the abolition of an old remedy, or the substitution of a new one, does not impair a vested right or impose a new duty, for there is no such thing as a vested right in remedies."
Ibid at 986.
Vetten involved a petition to reopen a 1975 injury claim. The claimant argued the claim was governed by the statute of limitations in effect at the time of the injury. However, the court concluded the claimant's petition to reopen was subject to the 1998 amendments to the reopening statute and rejected the claimant's contention that application of the 1988 amendments was unconstitutional retrospective legislation.
As to the issue presented here, HB 1049 explicitly reflects the legislature's intent that § 8-42-107.2 is "procedural in nature," Consequently , Vetten leads to the conclusion that § 8-42-107.2 governs the request for a DIME in this case.
Furthermore, we reject the claimant's contention that § 8-42-107.2 must be construed to afford him 30 days from the date of the ALJ's November 2000 order to request a DIME. Had the General Assembly intended to afford injured workers such as the claimant an opportunity to obtain a DIME, the legislature could have restricted the application of § 8-42-107.2 to open claims for injuries which occurred after July 1, 1991, where the Final Admission of Liability is filed after September 1, 1999. The General Assembly did not do so and we may not read non-existent provisions into the statute. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000). In fact, the legislative history indicates that HB 1049 was originally amended by the House Committee on Business Affairs Labor to apply to open claims where no final admission was filed until after September 1, 1999. See House Committee on Business Affairs Labor, January 26, 1999, HCR 0109, Tape 14:58:44-15:33:07; House Floor Debate, February 8, 1999 Tape 11:12:53. However, the Senate subsequently amended HB 1049 to its current form, which renders § 8-42-107.2 applicable to all open claims for injuries on or after July 1, 1999, where no DIME had been requested even if a final admission had been previously filed. See Senate Committee on State, Veterans Military Affairs, February 17, 1999, SCR Tape 353, 16:08:17. Therefore, we reject the claimant's contention that his DIME request was not due until 30 days after the ALJ's November 2000 order.
Rather, we agree with the ALJ that the claimant had 30 days from the date of the March 25, 1994 final admission of liability to request a DIME. Because no timely request was filed, the ALJ did not err in finding the claimant lost the right to dispute the treating physician's zero impairment rating and the zero percent rating was binding.
IT IS THEREFORE ORDERED that the ALJ's order dated September 25, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
Examiner Halsey specially concurs: In my view, the amendments to § 8-42-107.2 should not be construed as foreclosing the opportunity to obtain a DIME to claimants whose time for requesting a DIME had expired prior to the effective date of the amendments. See Gonzales v. Industrial Commission, 689 P.2d 675 (Colo.App. 1984) (concerning the appealability and treatment of workers' compensation orders that were interlocutory under a previous statute); contra, In re Claim of Raisch v. Industrial Commission, 690 P.2d 1290 (Colo.App. 1984). I also believe the statute is ambiguous. Section 8-42-107.2(6) indicates its purpose:
"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. . . ." (emphasis added).
The subsection also declares that it effects "procedures related to the selection of an IME . . . ." This indicates to me that the General Assembly believed it was merely changing the procedure for obtaining an DIME by extending the time limit for requesting a DIME to earlier claims, but was not aware that the effect of the amendment actually precludes some additional claimants from requesting a DIME if the time for the request had expired prior to the effective date of the amendment.
I am not persuaded otherwise by the legislative history relied upon by the majority. Although the Senate amended HB 1049 to its current form, deleting a House amendment to apply the statute to open claims where no final admission was filed until after September 1, 1999, the tape recording of the Senate committee hearing reveals that the Senate was not given an accurate or complete explanation of the reason for the House amendment. Nor was it mentioned that "open" claims include claims where a final admission has been filed and timely contested, but further action to pursue an adjudication had not been taken. Consequently, I am not persuaded the Senate was aware that the "improvement" and "simplification" it effected was to preclude that class of claimants from ever requesting a DIME if they had not already done so. Had that been the intent, the Senate could simply have stated so.
Moreover, I believe that Vetten v. Industrial Claim Appeals Office, 986 P.2d 983 (Colo.App. 1999), is distinguishable. That case involves a statute of limitations for initiating a claim, which is not the case here. I find this significant because the statutory amendment in Vetten did not foreclose the claimant from proceeding with an active and ongoing claim for relief.
Nevertheless, contrary to the claimant's contention, I would conclude that September 1, 1999, the effective date subsection (6), was the "triggering event," because as of that date, the claimant was on notice of his obligation to request a DIME within thirty days after the final admission. Cf. Lewis v. Colo. Dept. of Labor Employment, 924 P.2d 1183 (Colo.App. 1996); but see Nelson v. King Soopers, Inc., 703 P.2d 1338 (Colo.App. 1985) (holding that the time for appealing an order which was interlocutory under the prior statute began to run when the order was affirmed in a subsequent order which was issued after the effective date of the amended statute). Since the claimant did not request an IME within 30 days of September 1, 1999, I would affirm the ALJ's order.
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. 2001. 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 to the following parties:
Enrique Lobato, 806 Hayden Dr., Colorado Springs, CO 80910
Mary Ortmeier, Western Forge, 4607 Forge Rd., Colorado Springs, CO 80907
Brice Berkeland, Crawford Company, 4570 Hilton Pkwy., #202, Colorado Springs, CO 80907
Steven R. Waldmann, Esq., 331 N. Circle Dr., #201, Colorado Springs, CO 80909-6255 (For Claimant)
David J. Dworkin, Esq. and Margaret Garcia, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondent)
BY: A. Hurtado