Opinion
W.C. No. 4-779-285.
July 20, 2010.
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Jones (ALJ) dated February 18, 2010, that ordered the respondent's Notice and Proposal to Select a Division-sponsored independent medical examination (DIME) be stricken. We affirm.
Many of the relevant facts do not appear to be in dispute. The claimant suffered an industrial injury on April 25, 2008. Dr. Olsen placed the claimant at maximum medical improvement on December 9, 2008. The respondent received Dr. Olsen's impairment report on January 5, 2009 but this report did not contain range of motion worksheets. On February 6, 2009 the respondent received the range of motion worksheets. The respondent filed a Notice and Proposal to Select a DIME on March 6, 2009. The Notice and Proposal to Select a DIME was filed 28 days after the respondent received the range of motion worksheets. The respondent's Notice and Proposal to Select a DIME was filed 58 days after the respondent received Dr. Olsen's December 9, 2008 report on January 5, 2009.
The ALJ found that Dr. Olsen's December 9, 2008 report was a disputed finding or determination within the meaning of § 8-42-107.2(2)(a)(I)(B), C.R.S., after which the respondent had 30 days to file a Notice and Proposal to Select a DIME. The ALJ found that the respondent had not timely filed a Notice and Proposal to Select a DIME. The ALJ struck the Notice and Proposal to Select a DIME filed by the respondent on March 6, 2009. The ALJ concluded that the respondent was bound by Dr. Olsen's opinions on impairment contained in his report of December 9, 2008. The respondent appeals this decision.
The respondent contends that it timely filed a Notice and Proposal to Select a Division IME in accordance with § 8-42-107.2(2)(a)(I)(B) C.R.S., and W.C. Rule of Procedure 5-5(E), 7 Code Colo. Reg. 1101-3. The respondent argues that because it filed its Notice and Proposal to Select a Division IME within 30 days of receiving the range of motion worksheets it was in compliance with the timing requirement even though it had not taken action within 30 days of receiving the Dr. Olsen's impairment report. We are not persuaded that the ALJ erred.
Section 8-42-107.2 sets forth the procedure and time for the selection of the DIME physician. The time for selection of the DIME commences depending on which party initiates the dispute. For the insurer or self-insured employer, the time for selection of a DIME commences with the date on which the disputed finding or determination is mailed or physically delivered to the insurer or self-insured employer. It is further provided in § 8-42-107.2(2)(b) as follows:
If any party disputes a finding or determination of the authorized treating physician, such party shall request the selection of an DIME. The requesting party shall notify all other parties in writing of the request, on a form prescribed by the division by rule, and shall propose one or more acceptable candidates for the purpose of entering into negotiations for the selection of an IME. Such notice and proposal is effective upon mailing via United States mail, first-class postage paid, addressed to the division and to the last-known address of each of the other parties. Unless such notice and proposal are given within thirty days after the date of mailing of the final admission of liability or the date of mailing or delivery of the disputed finding or determination, as applicable pursuant to paragraph (a) of this subsection (2), the authorized treating physician's findings and determinations shall be binding on all parties and on the division.
It is provided in W.C. Rule of Procedure 5-5(E), that:
Within 30 days after the date of mailing or delivery of a determination of medical impairment by an authorized Level II accredited physician, or within 30 days after the date of mailing or delivery of a determination by the authorized treating physician providing primary care that there is no impairment, the insurer shall either:
(1) File an admission of liability consistent with the physician' opinion, or
(2) Request a Division Independent Medical Examination (IME) on the issue of medical impairment in accordance with Rule 11-3.
The respondent, citing a number of Panel decisions, argues that it was not required to file a Notice and Proposal to Select a DIME until it received the entire report from Dr. Olsen, including the range of motion worksheets. It is true that the Panel has previously ruled that a Final Admission of Liability (FAL) containing certain deficiencies might fail to close issues effectively because of those deficiencies. For example, the failure to attach the AMA Guides worksheets can vitiate a FAL and relieve the claimant of the duty to object to it. E.g., Sinkey v. Paint Connection Plus, W.C. 4-714-996 (March 2, 2009), aff'd sub nom., Paint Connection Plus v. Industrial Claim Appeals Office ___P.3d ___ (Colo App No. 09CA0598, January 07, 2010); McCotter v. U. S. West Communications, Inc., W.C. No. 4-430-792 (March 25, 2002); Siegmund v. Fore Property Company W.C. No. 4-649-193 (January 30, 2007). In those orders, the Panel held that a FAL that does not include the rating physician's entire report, including both the narrative discussion and the ratings worksheets required by Rule 5-5(A) is legally insufficient. However, the rationale for the holding in those cases was that the statute requires medical reports to be filed and "is designed to promote intelligent decision making by claimants" by informing them of the factual predicates for the admission and providing them with a basis to decide whether grounds exist to contest the FAL. McCotter v. U.S. West Communications, Inc., supra, see Olguin v. Rent A Center, W.C. No. 4-714-364 (April 13, 2010).
In contrast, here the ALJ found that the respondent had all of the information concerning the finding or determination of Dr. Olsen on January 5, 2009 when it received the rating report dated December 9, 2008. Although the range of motion worksheets were not attached in the received report, Dr. Olsen described range of motion deficits in forward flexion and left lateral bending equating to four percent and one percent respectively. The ALJ specifically found that Dr. Olsen stated in the report as follows:
[Claimant's] MRI demonstrates disc protrusion at L5-S1 and annual tear. She is rated in table 53, II-Con page 80 of the Guides for a 7% impairment. Range of motion deficits are noted in forward flexion and left lateral bending equating to 4% and 1%, respectively. The total range of motion deficit is 5%. Neurologic examination is intact. The 7% is combined with 5% for a final impairment of 12% whole person.
The underlying rationale of the line of Panel decisions is that the claimant must be notified of the exact basis of the admitted or denied liability so that the claimant can make an informed decision whether to accept or contest the FAL. The court in Paint Connection Plus approved this rationale. Consistent with this line of reasoning the ALJ here found that the respondent had all of the necessary factual predicates for determining whether to accept the opinion of the ATP and file a FAL or contest the opinion by filing a Notice and Proposal to Select a Division IME.
In Aguilar v. Colorado Flatwork, Inc. W.C. No. 4-741-897(August 3, 2009); aff'd Aguilar v. Industrial Claim Appeals Office, No. 09CA1792 (Colo. App. May 20, 2010) (not selected for publication) we declined to construe § 8-43-203(2)(b) and Rule 5-5(A) as imposing an obligation on the insurer to demand that the authorized treating physician prepare worksheets, which otherwise did not exist, so that they could be attached to a FAL. As noted by the court in Paint Connection Plus in commenting on Aguilar v. Colorado Flatwork, Inc. W.C. No. 4-741-897(August 3, 2009) not only were there no worksheets, but the range of motion findings used by the authorized treating physician to calculate the claimant's impairment rating were included in the physical therapist's report. Here the ALJ found although the range of motion worksheets were not attached in the received report Dr. Olsen described the range of motion deficits in his narrative report. The issue becomes whether the respondent had all of the necessary factual predicates for determining whether to accept the opinion of the ATP and file a FAL or contest the opinion by filing a Notice and Proposal to Select a Division IME.
Here the ALJ concluded that Dr. Olsen's December 9, 2008 report was a disputed finding or determination within the meaning of § 8-42-107.2(2)(a)(I)(B). In our view, this finding is supported by substantial evidence in the record. Exhibit C D. We note that the impairment report from Dr. Olsen contains detailed information on the range of motion deficits and that the respondent has not argued that the worksheet adds any useful information. The factual determinations of the ALJ are binding on us. Section 8-43-301(8), C.R.S. In our view, the ALJ's determination is consistent with the rationale in McCotter v. U.S. West Communications, Inc., supra, because the receipt of Dr. Olsen's impairment report by the respondent provided the respondent with the factual predicates necessary to file a FAL based on the report, or if grounds exist, to contest the ATP opinion by Notice and Proposal to Select a DIME.
Therefore, in our view the receipt by the respondent of Dr. Olsen's December 9, 2008 impairment report on January 5, 2009 triggered its responsibility under § 8-42-107.2(2)(b) and W.C. Rule of Procedure 5-5(E) to either file an admission of liability consistent with the physician's opinion or request a DIME by filing a Notice and Proposal to Select a DIME within the thirty day period. The respondent was not at liberty to decline to take action until it received the complete range of motion worksheets. Therefore, we perceive no error in the ALJ's determination that the respondent is bound by the impairment rating found in Dr. Olsen's December 9, 2008 report.
The respondent cites Paint Connection Plus v. Industrial Claim Appeals Office supra arguing that it could not take a position on the case or file a FAL until after the worksheets were provided. From the court's decision in Paint Connection Plus v. Industrial Claim Appeals Office supra, the respondent concludes that it had no obligation to act upon receipt of Dr. Olsen's December 9, 2008 impairment report until it received the range of motion worksheets. We disagree. Even if we were to assume the respondent is correct and that it was initially unable to file a valid admission because the range of motion worksheets were not initially attached to Dr. Olsen's December 9, 2008 impairment report we are not persuaded that the respondent was at liberty to take no action.
In our view the respondent, upon receiving Dr. Olsen's report, had alternatives to either immediately file an FAL without the range of motion worksheet or file a Notice and Proposal to Select a DIME. The first of the alternatives was for the respondent to secure the range of motion worksheet within the thirty-day period. The ALJ found that Dr. Olsen's report did state that reference could be made to the range of motion worksheet for values. However, the ALJ found that the respondent presented no evidence of steps taken to obtain Dr. Olsen's range of motion worksheets after his report was received on January 5, 2009, in which the worksheets were clearly referenced. The ALJ further found that if the respondent had questions about the range of motion deficits it could have obtained the range of motion worksheets within the thirty-day time period. These findings by the ALJ have not been challenged by the respondent on appeal.
Additionally, if the respondent was confused by Dr. Olsen's December 9, 2008 impairment report they were not without remedy, because they could file for a hearing. As the court noted in Paint Connection Plus v. Industrial Claim Appeals Office, supra an alternative for the respondent would have been to request a hearing under section 8-43-207(1), C.R.S., which permits a party to seek a hearing for the determination of any controversy concerning any issue arising under the Act. See Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo. App. 1996) (where the authorized treating physician issues conflicting or ambiguous reports concerning whether or not the claimant is at MMI, the ALJ may resolve the conflict without requiring the claimant to undergo a DIME); See also Briley v. K-Mart Corp., W.C. No. 4-494-519 (March 12, 2003), aff'd sub nom., K-Mart Corp. v. Industrial Claim Appeals Office, (Colo. App. No. 03CA0644 October 30, 2003)(not selected for publication) (ALJ did not exceed jurisdiction by resolving ambiguous opinions by treating physician on MMI without the prerequisite of a DIME).
In our view, the respondent had alternatives to filing an FAL or Notice and Proposal to Select a Division-sponsored independent medical examination (DIME). In Paint Connection Plus the court noted that the existence of other options to filing an admission is important in determining the liability of the respondent. Therefore, respondent's failure to take action upon receiving Dr. Olsen's December 9, 2008 report results in its being bound by the impairment rating found in that report. In our view, this resolution of the issue is consistent with what the court in Paint Connection Plus described as the statutory scheme designed to promote, encourage, and ensure prompt payment of compensation without the necessity of a formal administrative determination in cases not presenting a legitimate controversy. See also Olivas-Soto v. Indus. Claim Appeals Office, 143 P.3d 1178, 1179 (Colo. App. 2006).
IT IS THEREFORE ORDERED that the ALJ's order dated February 18, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
CONNIE SERVANTES, 509 E OAK, LAFAYETTE, CO, (Claimant)
THE ELLIOTT LAW OFFICES, Attn: MARK D. ELLIOTT, ESQ., ARVADA, CO, (For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: BRAD J. MILLER, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).
SEDGWICK CMS, Attn: JASON HOUSTON, LEXINGTON, KY, 40512-4493 (Other Party).