Opinion
W.C. No. 4-172-786
December 26, 1996
FINAL ORDER
The respondents seek review of a Supplemental Order of Administrative Law Judge Wheelock (ALJ), which penalized the respondents for "compelling" the claimant's attendance at a Division-sponsored independent medical examination (IME). We reverse.
This case has a long and complex procedural history, much of which is summarized in our prior order dated March 10, 1995. We will not repeat that history here.
Suffice it to say that the claim for penalties centers on whether or not Dr. Nelms was the authorized treating physician providing primary care when he pronounced the claimant at maximum medical improvement (MMI) in December 1993, and gave her a medical impairment rating. It was the respondents' position that Dr. Nelms was the authorized treating physician providing primary care, and therefore, that they properly requested a Division-sponsored IME pursuant to § 8-42-107(8)(b) and (c), C.R.S. (1995 Cum. Supp.) [significantly amended in 1996].
It was the claimant's position that Dr. Nelms was not the authorized treating physician providing primary care, and that the respondents were fully aware of this fact when they requested the Division-sponsored IME in March 1994. Therefore, it was the claimant's position that the respondents improperly compelled her to attend the IME in April 1994, improperly persisted in arguing that Dr. Nelms was the treating physician by filing a final admission based on the IME report, and by maintaining their position after ALJ Henk issued an order, in September 1994, ruling that the respondents were not entitled to the IME (which had already occurred).
Following an evidentiary hearing, ALJ Wheelock issued an order on September 19, 1995, and the Supplemental Order on April 16, 1996. After resolving conflicts in the evidence, ALJ Wheelock determined that Dr. Nelms was not the authorized treating physician providing primary care in December 1993. Therefore, the ALJ went on to conclude that the respondents "improperly" filed a request for the Division-sponsored IME. The ALJ also determined that the respondents unreasonably persisted in their position by resisting the claimant's objection to the request for the IME, by compelling the claimant to attend the IME in April 1994, by filing a final admission of liability based on the IME report, and by continuing "to assert that Dr. Nelms was an authorized treating physician who provided the primary care without any reasonable or rational basis until hearing on September 5, 1995, despite ALJ Henk's order of September 15, 1994."
Under these circumstances, the ALJ held that the respondents violated § 8-42-107(8)(b) (c), and that they "should be penalized for abuse of the IME process." Consequently, she assessed a penalty of $10.00 per day from September 15, 1994, the date of ALJ Henk's order, through September 5, 1995, the date of the hearing on penalties.
On review, the respondents' first contention is that the ALJ erred in determining that their alleged conduct violated § 8-42-107(8)(b) (c). Therefore, the respondents contend that the ALJ erred in imposing penalties pursuant to § 8-43-304(1), C.R.S. (1996 Cum. Supp.). We agree with the respondents.
Section 8-43-304(1) provides for imposition of a penalty where a person or party "violates any provision of articles 40 to 47 of this title, or does any act prohibited thereby." Imposition of a penalty under this provision requires a two-step analysis. First, it must be determined whether the challenged conduct violates any provision of the Act. Allison v. Industrial Claim Appeals Office, 916 P.2d 623 (Colo.App. 1995). If the action does violate the Act, it must next be determined whether, under the circumstances, the conduct was unreasonable as measured by an objective standard. Pueblo School District No. 70 v. Toth, 924 P.2d 1094 (Colo.App. 1996).
For the time period in question, § 8-42-107(8)(b) provided that the authorized treating physician who provided primary care was to determine the date of MMI. In the event either party disputed this determination, the statute authorized the Division to "select an independent medical examiner from a list of independent medical examiners." The finding of the IME physician was then binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(c) provided that, once the date of MMI was determined in accordance with subsection (8)(b), the authorized treating physician was to determine a medical impairment rating. If any party disputed the impairment rating, the Division was entitled to select an IME physician whose impairment rating was binding unless overcome by clear and convincing evidence.
We agree with the respondents that these statutes establish procedures to be followed after the authorized treating physician determines that the claimant has reached MMI and issues an impairment rating. We also agree with the respondents that the statutes do not contain any provisions which require, or prohibit, the respondents from maintaining a particular "state of mind" with respect to the identity of the authorized treating physician. Neither do the statutes prescribe any "state of mind" which must exist when respondents request an IME.
Thus, we discern no meaningful distinction between the facts present in this case, and those present in Allison v. Industrial Claim Appeals Office, supra. In Allison, the respondents admitted liability for temporary total disability benefits, but reduced the weekly payment based on their contention that they were entitled to offset their liability by the claimant's proceeds from a structured settlement. Ultimately, it was determined that the respondents were not entitled to the offset, and the claimant argued that the respondents should be penalized because their actions violated § 8-42-105(1), C.R.S. (1996 Cum. Supp.). Specifically, the claimant asserted that the respondents reduced the statutory temporary disability benefits without legal justification. However, the court rejected the claimant's argument holding that § 8-42-105(1) did not "mandate a legal duty upon the employer to pay that rate without regard to any claimed offset prior to the ALJ's determination of benefits."
In this case, the ALJ's order holds, in effect, that §§ 8-42-107(8)(b) and (c) create an implied prohibition against requesting a Division-sponsored IME if the insurer does not reasonably believe that an authorized treating physician has determined the date of MMI and issued an impairment rating. We decline to read these statutes as creating any such implied prohibitions or duties, and therefore, conclude that the ALJ's order of penalties under § 8-43-304(1) is erroneous. The respondents' actions did not violate the provisions of the Act cited by the ALJ.
Moreover, we do not understand the ALJ to have found that the respondents violated ALJ Henk's order. This is true because the IME occurred prior to ALJ Henk's order. At most, the ALJ found that ALJ Henk's order was relevant to the reasonableness of the respondents' actions.
In reaching this result we should not be understood as holding that the type of conduct found by the ALJ could never be subject to sanctions under the Act. To the contrary, at the time of the respondents' conduct, § 8-43-216(1), C.R.S. (1995 Cum. Supp.), provided that the ALJ could impose attorney fees if she found that an attorney or party "unnecessarily expanded the proceeding" by improper conduct, including "abuses of procedures available under articles 40 to 47 of this title." However, the availability of attorney fees for the respondents' conduct was not presented to the ALJ, and thus, we do not consider that issue here.
In light of this disposition, we need not consider the other arguments raised by the respondents. The ALJ's award of penalties based upon "abuse of the IME process" must be reversed.
IT IS THEREFORE ORDERED that the ALJ's Supplemental Order, dated April 16, 1996, is reversed insofar as it imposed penalties of $10.00 per day from September 15, 1994 through September 5, 1995.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. DeanNOTICE
This Order is final unless an action to modify or vacate the 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed December 26, 1996 to the following parties:
Sherry J. Silence-Boaz, 10060 Old Katy Road, #101, Houston, TX 77055-6020
Carpet Clearance Warehouse, 5707 N. Academy Blvd., Colorado Springs, CO 80918
Colorado Compensation Insurance Authority, Attn: Carolyn A. Boyd, Esq. (Interagency Mail)
Michael S. Kocel, Esq., 2301 E. Pikes Peak, Colorado Springs, CO 80909 (For the Claimant)
By: ____________________________________________