Opinion
W.C. No. 4-565-546.
July 21, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ), which declined to order "retroactive" payment of temporary total disability (TTD) benefits which had been suspended under § 8-42-105(2)(c), C.R.S. 2004. The issue is whether the statutory term "suspend" connotes a temporary postponement of TTD benefits or a permanent loss of TTD benefits for the period of time the claimant fails to appear for a medical appointment with the attending physician. We affirm.
The facts in this case are undisputed. The claimant sustained a compensable injury and the respondents filed a General Admission of Liability (GAL). The claimant missed an appointment with the authorized treating physician (ATP) on March 15, 2004. The respondents then sent a certified letter to the claimant notifying her of a rescheduled appointment on March 30, 2004, and advising that the claimant's TTD benefits could be suspended if she failed to appear for the appointment. The claimant failed to appear for the rescheduled appointment, and the respondents stopped the payment of TTD benefits effective March 30.
The claimant did attend a medical appointment with the ATP on June 1, 2004, and the respondents promptly filed a GAL reinstating the TTD benefits effective June 1. The issue in the case is whether the claimant is entitled to retroactive payment of the TTD benefits which were "suspended" for the period March 30 to June 1.
The ALJ concluded that the term "suspend" as used in § 8-42-105(2)(c) does not contemplate "retroactive payment" of suspended TTD benefits once the claimant attends a rescheduled medical appointment with an ATP. Instead, placing substantial reliance on our decision in Maryott v. J H Properties, W.C. No. 4-157-363 (April 28, 1997), the ALJ held that the term "suspend" effects a permanent loss of TTD benefits for the period of the suspension.
On review, the claimant contends the ALJ's interpretation of the term "suspend" is incorrect and that retroactive payment of TTD was required after the claimant removed the disqualifying condition by attending the medical appointment on June 1. The claimant asserts that the "plain meaning" of the term "suspend" connotes a "temporary deprivation" of benefits rather than a "permanent deprivation." As authority for this proposition the claimant relies on Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000), a case which interpreted § 8-43-403(3), C.R.S. 2004. The claimant also asserts that "suspension" of TTD benefits under § 8-42-105(2)(c) must be distinguished from "termination" of TTD benefits under § 8-42-105(3)(a)-(d), C.R.S. 2004. Finally, the claimant cites various policy reasons why he believes that subsection (2)(c) requires retroactive payment. We are not persuaded by he claimant's arguments.
Section 8-42-105(2)(c) provides as follows:
If an employee fails to appear at an appointment with the employee's attending physician, the insurer or self-insured employer shall notify the employee by certified mail that temporary disability benefits may be suspended after the employee fails to appear at a rescheduled appointment. If the employee fails to appear at a rescheduled appointment, the insurer or self-insured employer may, without a prior hearing, suspend payment of temporary disability benefits to the employee until the employee appears at a subsequent rescheduled appointment. (Emphasis added).
The overall purpose of statutory construction is to effect the legislative intent. Because the General Assembly presumably means what it plainly says, the best indicator of legislative intent is the language of the statute itself. Consequently, we must give statutory words and phrases their plain and ordinary meanings unless the result is absurd. Spracklin v. Industrial Claim Appeals Office, 66 P.3d 176 (Colo.App. 2002). However, if the statute contains an ambiguity, it is proper to resort to other rules of statutory construction in an effort to discern the legislature's intent. A statute is ambiguous if it is fairly susceptible to more than one interpretation. If an ambiguity is present we should attempt to read the statute as a whole in order to give consistent, harmonious and sensible effect to all its parts. Dillard v. Industrial Claim Appeal Office, ___ P.3d ___ (Colo.App. No. 04CA0680, June 2, 2005). Further, we may consider legislative history, the state of the law prior to the enactment, and the statutory remedy created to solve the problem. Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991).
First of all, we reject the claimant's assertion that the term "suspend" as it is used in § 8-42-105(2)(c) has a "plain and ordinary meaning." Indeed, as prior cases reflect, the term "suspend" may connote a "postponement" as where payments are temporarily held in abeyance, or it may connote the cessation of payments for a period of time with the expectation of reinstatement after removal of a disqualifying condition. Compare Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra, Dziewior v. Industrial Claim Appeals Office, 672 P.2d 1026 (Colo.App. 1983). Because § 8-42-105(2)(c) is fairly susceptible to either interpretation, we conclude the statute is ambiguous.
In Maryott v. J H Properties, supra, we rejected an argument identical to that which the claimant makes here. We noted that § 8-42-105(2)(c) was enacted in 1991 as part of the general revision of the workers' compensation system, including the provisions which give initial presumptive weight to the ATP's findings of maximum medical improvement and medical impairment. 1991 Colo. Sess. Laws, ch. 219 at 1305-1309. In contrast, we noted that the first two sentences of § 8-43-404(3), C.R.S. 2004, establish a distinction between "suspending" the right to collect benefits where the claimant refuses to submit to an independent medical examination, and "barring" the right to compensation if the claimant refuses to submit to such examination after directed to do so by the Director or an ALJ. We inferred from these distinctions that "§ 8-42-105(2)(c) was deliberately enacted with a view to establishing "a more rigorous sanction for a claimant's failure to attend an examination by the `attending physician' than applies when the claimant misses appointments with other medical providers."
The Maryott decision also noted that § 8-43-404(3) itself uses the term "suspend" is two ways. The first sentence of that statute uses the term "suspended" in the sense of a postponement of the right to collect benefits. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra. However the third sentence of § 8-43-404(3) uses the term "suspend" to mean loss of benefits subject to reinstatement of payments in the event the claimant submits to necessary medical treatment or vocational rehabilitation. See Bacon v. Industrial Claim Appeals Office, 746 P.2d 74 (Colo.App. 1987) (authorizing a "permanent suspension" of benefits based on claimant's failure to cooperate with established vocational rehabilitation plan); Dziewior v. Industrial Claim Appeals Office, supra (term "suspend" as used in last sentence of former 8-51-110(3) means to interrupt or discontinue temporarily with expectation of resumption). In Maryott we concluded that the use of the term "suspend" in § 8-42-105(2)(c) is "most analogous to the usage contained in the third sentence of § 8-43-404(3)."
The claimant's arguments and citations to more recent cases do not persuade us to depart form our holding in the Maryott case. As noted, the Magnetic Engineering case interprets the first two sentences of § 8-43-404(3), which establishes a "two-tiered" system for suspending and ultimately barring compensation based on the claimant's failure to attend medical examinations by physicians designated by the respondents. Magnetic Engineering is not persuasive because § 8-42-105(2)(c) does not establish a "two tiered" system for sanctioning non-cooperation, and because § 8-42-105(2)(c) pertains to failure to attend appointments with the attending physician, not a mere independent examiner.
Neither does Imperial Headware, Inc. v. Industrial Claim Appeals Office, 15 P.3d 295 (Colo.App. 2000), support a different result. In Imperial Headware the attending physician issued a report which released the claimant to regular employment, but added that the release was for "medical noncompliance," meaning the claimant's failure to attend several appointments. The respondents argued they were entitled to terminate TTD benefits under § 8-42-105(3)(c) [attending physician gives release to regular employment], and the ALJ erred in concluding that he could interpret the report to ascertain the attending physician's true intent. The court held the question of the attending physician's intent was one of fact for the ALJ, and the issue was important because the "remedy for `medical noncompliance' is to suspend TTD benefits" under § 8-42-105(2)(c). Id. at 297. We do not read Imperial Headware as authorizing retroactive recovery of TTD benefits "suspended" under § 8-42-105(2)(c). Indeed, the case does not indicate that the respondents argued they were entitled to such a suspension, or what the ultimate effect of the suspension would have been once the claimant attended a rescheduled medical appointment. The case merely holds that subsection (2)(c) is the "remedy" for noncompliance without discussing the extent of the remedy.
Neither does Rocky Mountain Cardiology v. Industrial Claim Appeals Office, 94 P.3d 1182 (Colo.App. 2004), support a different result. The issue in that case was whether § 8-42-105(2)(c) requires respondents automatically to reinstate TTD benefits upon notice the claimant has attended a rescheduled examination. In other words, the issue was the duration of the suspension, not whether "suspension" requires retroactive payment of previously "suspended" benefits.
Finally, we assign no great weight to any distinction between § 8-42-105(2)(c) and § 8-42-105(3). The term "suspend" as used in subsection (2)(c) contemplates reinstatement of TTD after attendance at an appointment. Subsection (3) does not refer to "suspension" since the right to TTD ends altogether when one of the statutory conditions occurs. See City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997).
Neither are we persuaded by the claimant's policy arguments. While the workers' compensation system is based on no-fault principles, courts have not shied away from imposing retroactive sanctions where the claimant has engaged in misconduct proscribed by the statute. Eg. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000) (policy of deterring employee misconduct strong enough to authorize retroactive withdrawal of admission of liability where evidence showed injury resulted from intoxication). Prior to suspending benefits for failure to attend an appointment the statute requires the respondents to issue a certified letter to the claimant warning of the potential for suspension if the claimant does not attend a rescheduled appointment. Thus, the claimant is afforded sufficient notice of the need to act and afforded an opportunity to comply prior to the imposition of any sanction. Further, the claimant's right to TTD must be balanced against the respondents' interests in insuring prompt treatment of the injury and resolution of the claim at a reasonable cost. Section 8-40-102(1), C.R.S. 2004.
Neither are we persuaded that the respondents will be encouraged to delay rescheduling an appointment in order to procure a lengthier suspension of benefits. to the contrary, if the claimant is not receiving medical treatment the claim remains open and the respondents face the potential for greater permanent disability if the claimant is not treated. Further, we see nothing in § 8-42-105(2)(c) which would prohibit a claimant who is subject to a suspension from rescheduling an appointment on her own, attending the appointment, and notifying the respondents so that they must reinstate benefits. Further respondents who failed promptly to reschedule an appointment after request by the claimant would probably be subject to a claim that they waived further suspension of benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated February 23, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Eva Sigala, Alamosa, CO, Atencio's Market, Alamosa, CO, Gwen Brightwell, Royal SunAlliance, Greenwood Village, CO, Lawrence D. Saunders, Esq., Pueblo, CO, (For Claimant).
Gregory K. Chambers, Esq. and C. Sandra Pyun, Esq., Denver, CO, (For Respondents).