Summary
In Romero v. Gerald Martin, LTD. W.C. No. 4-55-142 (March 8, 2004), we noted that although the statute imposes time limits for requesting a DIME there is no provision that establishes a time within which the DIME must be performed.
Summary of this case from In re Moler v. Colorado Springs Winwater, W.C. NoOpinion
W.C. No. 4-55-142
March 8, 2004
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which "struck" the claimant's request for a Division-sponsored independent medical examination (DIME). We set the order aside and remand for further proceedings.
The pertinent facts are essentially undisputed. The claimant sustained a compensable injury in September 1999. In October 2000, the treating physician placed the claimant at maximum medical improvement (MMI) with a zero impairment rating. The respondents filed a final admission of liability (FAL) based on the treating physician's rating, and the claimant filed a timely objection and notice and proposal to select a DIME physician.
The DIME was scheduled for March 26, 2001, but the claimant failed to appear. On April 27, 2001, the Division of Workers' Compensation (Division) sent a "late notice" to the DIME physician stating that the DIME report had not been received. This letter was copied to counsel for the parties.
Nothing further occurred until November 12, 2002, when claimant's counsel notified the respondents that the DIME was rescheduled for March 17, 2003. The respondents filed a motion to strike the DIME, alleging that it had not been conducted within the time limits established by Rule of Procedure XIV (L)(2)(a), 7 Code Colo. Reg. 1101-3 at 51. However, on January 23, 2003, a prehearing administrative law judge (PALJ) ruled the issue "is governed" by Rule of Procedure XIV(L)(4)(c), 7 Code Colo. Reg. 1101-3 at 59. Applying this rule, the PALJ concluded that because the claimant missed the DIME, the "non-canceling party," in this case the respondents, "could have contacted the Division IME Unit to determine whether the IME could be rescheduled." However, because the respondents failed to do so, the PALJ declined to strike the claimant's request for the DIME. The DIME then occurred and the DIME physician assigned a 15 percent whole person rating.
The respondents appealed the PALJ's order to the ALJ. A hearing was conducted on June 13, 2003. The claimant testified that he missed the DIME scheduled for 2001 because his car had broken down on the way to the DIME.
On July 9, 2003, the ALJ entered an order granting the respondents' motion to "strike the DIME." The ALJ was persuaded by the respondents' argument that the PALJ's interpretation of Rule XIV(L)(4)(c) "goes beyond the plain language of the Rule itself" by imposing the burden of rescheduling a missed DIME appointment on the "non-canceling party." The ALJ further concluded the claimant failed to show "good cause" for failing to appear for the DIME because his testimony concerning "car trouble" was "unpersuasive." Finally, the ALJ concluded that the claimant scheduled the DIME "beyond the time limits imposed by the" Rules of Procedure, presumably referring to Rule XIV (L)(2)(a).
On review, the claimant contends the ALJ's order is inconsistent with the Act and the applicable Rules of Procedure. Instead, the claimant argues the PALJ's interpretation of Rule XIV(L)(4)(c) was correct and the PALJ's order should be reinstated. We agree with the claimant.
Initially, we conclude that nothing in § 8-42-107.2, C.R.S. 2003, compels the result reached by the ALJ. Administrative tribunals are limited to exercising the jurisdiction conferred by statute. Compton v. Industrial Claim Appeals Office, 13 P.3d 844 (Colo.App. 844); Lewis v. Scientific Supply Co., Inc., 897 P.2d 905 (Colo.App. 1995). Thus, neither the ALJ nor the Division may legislate jurisdictional barriers to claims for benefits where the statute itself does not impose such limitations. Saxton v. Industrial Commission, 41 Colo. App. 309, 548 P.2d 638 (1978) (where brief was not jurisdictional prerequisite to review, Commission erred in dismissing petition to review because no brief was filed).
We have reviewed § 8-42-107.2 in its entirety. The statute imposes time limits for requesting a DIME by filing a notice and proposal, time limits for selection of a DIME physician, time limits for submitting medical records, and time limits for filing a FAL or requesting a hearing after the DIME physician files a report. Obviously, the purpose of these provisions is to simplify remedies and provide for speedy resolution of claims. See § 8-42-107.2(6), C.R.S. 2003.
However, nothing in § 8-42-107.2, nor any statute of which we are aware, establishes a time within which the DIME must be performed. Neither does the statute impose any jurisdictional bar to the conduct of a DIME if the procedure is not completed within in any specified time limit. Thus, we decline to legislate such a bar. Compton v. Industrial Claim Appeals Office, supra.
The question then becomes whether, as the ALJ held, the Rules of Procedure establish that the claimant lost the right to a DIME because it was not timely conducted. In this regard, we note that the Director of the Division has the power to establish rules and regulations to govern proceedings and hearings of the division. Section 8-47-107, C.R.S. 2003; Monfort Transportation v. Industrial Claim Appeals Office, 942 P.2d 1358 (Colo.App. 1997). This authority includes the power to enforce the rules by the imposition of appropriate sanctions. However, the existence of such sanctions must be clearly stated in the regulations and the sanctions may not exceed the scope of administrative jurisdiction established by Act itself. Saxton v. Industrial Commission, supra. Further, if the imposition of a sanction is based on discretionary factors, those factors should be stated in the rule so as to notify the parties of the relevant considerations and afford appellate tribunals criteria for meaningful review. See Sears, Roebuck and Co v. Baca, 682 P.2d 11 (Colo. 1984); Andrews v. Director, Division of Employment, 41 Colo. App. 408, 585 P.2d 933 (1978).
Initially, we note that the right to a DIME is critical to a determination of the claimant's right to benefits, including permanent partial disability benefits. Indeed, the treating physician's rating is binding on the parties unless a DIME is conducted. See § 8-42-107(8)(c), C.R.S. 2003; Whiteside v. Smith, 67 P.3d 1240 (Colo. 2003).
Former Rule of Procedure XIV(3)(d), currently Rule XIV(L)(3)(h), 7 Code Colo. Reg. 1101-3 at 56, provides that the date of the DIME "shall be set in accordance with Subsection L.2.a of Rule XIV." Rule XIV(L)(2)(a) provides that unless otherwise approved by the parties or the Division, the "physician shall conduct an IME no earlier than 35 calendar days, nor later than 50 calender days from the telephone call requesting an appointment." However, former Rule of Procedure XIV(L)(4)(c) [currently same rule with minor amendments], provides as follows:
An IME examination may be canceled only by the paying party, or the Division, no later than eight calender days [currently 3 business days] prior to the examination. The non-canceling party may contact the Division to determine whether the IME may be rescheduled. If the IME is not timely canceled or the claimant fails to keep the IME appointment, or the medical records are not submitted in a timely manner, the IME physician shall be entitled to retain $100.00 [currently $150.00] from the total fee, or, if not yet paid, collect from the defaulting party, a $100.00 cancellation/penalty fee. The insurance carrier may be entitled to offset the cancellation fee against any future permanent or temporary benefits if the claimant fails to appear for the IME examination without good cause as determined by the director or an administrative law judge.
The rules governing the interpretation of administrative regulations are the same as those governing statutes. Gerrity Oil and Gas Corp. v. Magness, 923 P.2d 261 (Colo.App. 1995), aff'd. in part and rev'd. in part, 946 P.2d 913 (Colo. 1997). Consequently, we should give these regulations their plain and ordinary meanings. Further, we should read them to give consistent and harmonious effect to all their parts. Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991).
Here, Rule XIV(2)(a) and Rule XIV(3)(d) establish when, in the first instance, the DIME is to occur. However, neither rule addresses what is to occur if, for some reason, the DIME does not occur within that time frame. Rather, that issue is the subject of Rule XIV(L)(4)(c), which discusses "cancellation" of the DIME, and what is to occur if the claimant fails to keep the DIME appointment.
Significantly, Rule XIV(L)(4)(c) imposes a specific "cancellation/penalty fee" on a party which "defaults" in its obligation to give timely notice of cancellation of a DIME. Further, the "non-canceling party may contact the Division to determine whether the IME may be rescheduled." Neither of these provisions suggests that if a party fails to cancel the DIME in a timely fashion, or the claimant fails to appear for the scheduled DIME, that the right to the DIME may automatically be deemed lost. At best, the rule indicates that the "non-canceling party" has the option to seek an administrative determination of whether the IME "may be rescheduled." It is unclear to us whether the rule contemplates the Division's decision on rescheduling is to be based on the claimant's reason for missing the DIME, or simply the current availability of the DIME physician. See Rule of Procedure XIV(L)(2)(j), 7 Code Colo. Reg. 1101-3 (DIME physician may not substitute another physician as DIME physician without approval of the Director). We do note that Rule of Procedure XIV(L)(3)(i), 7 Code Colo. Reg. 1101-3 at 56, expressly contemplates "rescheduling" a DIME if the examination is canceled because medical records are not timely submitted by the insurer. For these reasons, we reject the ALJ's conclusion that the DIME was conducted beyond the time limits established by the rules. The rules do not clearly establish any "time limit" within which to conduct a rescheduled DIME, nor do they clearly state an intention to sanction a claimant's failure to attend the DIME with the loss of the right to the DIME. See Saxton v. Industrial Claim Appeals Office. Even if loss of the right to the DIME is contemplated as a sanction for the claimant's failure to attend, the rules contain no criteria setting forth the factors to be considered when making this determination.
In this regard we note the dissent contemplates a "quasi-jurisdictional" limitation on the conduct of a DIME examination, and "implies" oversight of this rule by the Director or an ALJ. In light of the due process requirements discussed above, we decline to read into the rule a jurisdictional limitation, or to infer what principles might govern the application of such a jurisdictional rule if it indeed is intended. Citizens have the right to know what jurisdictional requirements will govern the adjudication of statutory rights. Sears, Roebuck and Co. v. Baca, supra.
We also note that, regardless of the rules, the respondents were not left without a remedy for the claimant's failure to attend the DIME and to request rescheduling. The respondents could have sought dismissal for failure to prosecute. Section 8-43-207(1)(n), C.R.S. 2003; Kratzer v. Hillhaven Corp., W.C. No. 4-280-513 (December 4, 2003) (upholding dismissal for failure to prosecute based, in part, on claimant's failure to reschedule a DIME which was canceled).
Further, we do not agree that the ALJ was entitled to determine whether the claimant showed "good cause" for failing to appear at the DIME. The rule establishes that if the "non — canceling party" wishes, it "may" contact the Division to determine whether the DIME may be rescheduled. As noted, the rule does not state that loss of the DIME may be predicated on a good cause determination, nor does it establish criteria for deciding good cause. In any event, there is no evidence the respondents ever contacted the Division to request such a determination until after the DIME was rescheduled by the claimant. Thus, even if Rule XIV(L)(4)(c) may be construed as authorizing the Division to terminate the claimant's right to a DIME based on failure to attend, the respondents waived the right to request such relief. See Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988) (party may waive right by engaging in behavior inconsistent with assertion of a right). In this respect, we concur with the opinion of the PALJ.
IT IS THEREFORE ORDERED that the ALJ's order dated July 9, 2003, is set aside, and the matter is remanded for further proceedings consistent with the view expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Robert M. Socolofsky
Examiner Halsey dissents: I agree with the majority's conclusion that the respondents waived the right to contest the rescheduling of the DIME by failing to contact the Division as permitted by Rule of Procedure XIV(L)(4)(c), 7 Code Colo. Reg. 1101-3 at 59. However, it is not clear to me that the respondents ever sought to preclude the rescheduling of the DIME. Rather, they sought to enforce a time limitation for conducting DIMEs as set forth in Rule XIV(L)(2)(a), 7 Code Colo. Reg. 1101-3 at 51. That rule provides that the physician shall conduct the DIME no earlier than 35 calendar days, nor later than 50 calendar days from the telephone call requesting an appointment, unless otherwise approved by both parties or the Division. I find no basis for concluding the respondents' waiver extended to this time limitation.
Although the time limitation is one of several provisions which govern the physician's conduct, the limitation at least secondarily benefits the parties by promoting a speedy resolution of permanent partial disability disputes. The majority acknowledges this is one of the purposes of the statutory and regulatory scheme. See § 8-42-107.2.(2), C.R.S. 2003. If the physician does not have the authority to conduct the DIME outside the 50-day period without party consent or Division approval, it would seem to follow that there can be no valid DIME outside that period unless the same conditions are satisfied. In this sense, the rule appears to be quasi-jurisdictional in nature, limiting the time within a physician may act (not unlike the time limitations applicable to this office).
The rule provides for oversight in conducting DIMEs outside the prescribed period, implying that there is some discretion for the Division to consider the circumstances for a delay before permitting a DIME to be held at a later (or earlier) time The majority has not stated any persuasive justification for simply disregarding this restriction. Although the majority acknowledges that administrative regulations, like statutes, are to be construed in a manner that gives consistent, harmonious, and sensible effect to all of their parts, see Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991), the majority gives no meaning to Rule XIV(L)(2)(a).
I do not find persuasive the majority's reliance on Rule XIV(L)(3)(I), 7 Code Colo. Reg. 1101-3 at 56, because it is not an exhaustive statement of the limitations applicable to this case. On its face, that rule addresses the remedy to the physician when a DIME appointment is missed or not timely canceled. The rule further suggests that the non-canceling party may take action to prevent the rescheduling of the DIME by contacting the Division. However, the rule does not purport to address the issue of when the rescheduled DIME must be held, or otherwise suggest that a canceling party may reschedule a DIME whenever he pleases.
Moreover, I find the majority's discussion of penalties to be beside the point. I do not suggest that Rule XIV(L)(2)(a) is a penalty provision. To the contrary, I understand this rule simply to prescribe time limits in which all DIMEs must occur, whether the delay is caused by the physician, the claimant, or the employer/insurer, unless the parties agree or the Division permits otherwise. However, even if this rule is a penalty provision, the lack of criteria setting forth factors to be considered in the Director's exercise of discretion is not a persuasive basis for ignoring the rule. Section 8-43-304(1), C.R.S. 2003, authorizing a penalty for failing to obey an order, also lacks such criteria. Further, the Division is called upon to exercise discretion in granting hearing adjournments on a case-by-case basis for "good cause shown," without specific criteria defining "good cause." See § 8-43-207(1)(j), C.R.S. 2003. I also note that the majority suggests the discretionary authority to preclude a rescheduled DIME lies with Rule XIV(L)(3)(I), but that provision also lacks criteria setting forth factors to be considered.
Both the ALJ and the PALJ act on behalf of the Division. See § 8-43-201, C.R.S. 2003; § 8-43-207(1), C.R.S. 2003; § 8-43-208(3), C.R.S. 2003. However, as I understand their orders, neither exercised their discretion, but found the result was mandated by their respective legal interpretations of the rules. Since I disagree with both interpretations, I would set aside the ALJ's order insofar as it concludes the DIME is precluded because it was untimely and strikes the DIME. Further, I would remand the case to the Division to consider whether or not to permit the DIME. If the Director did not intend Rule XIV(L)(2)(a) to restrict the time within which a DIME could be rescheduled, she could then state so and approve the DIME here.
Copies of this order were mailed to the parties at the addresses shown below on March 8, 2004 by A. Hurtado.
Martin Romero, 1310 Nevada, Trinidad, CO 81082
Gerald Martin, Ltd., 8501 Jefferson, Albuquerque, NM 87199
Fremont Indemnity Group, c/o Beatrice Calvert, Western Guaranty Fund Services, 1720 Bellaire St., #408, Denver, CO 80222
Michael W. McDivitt, Esq., 19 E. Cimarron St., Colorado Springs, CO 80903
Brett R. Parnes, Esq., 1777 S. Harrison St., #1110, Denver, CO 80210 (For Respondents)