Opinion
W.C. No. 4-533-782.
October 5, 2004.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Gartland (ALJ) which granted the claimant's motion to strike the Division-sponsored independent medical examination (DIME) physician's report, and awarded medical impairment benefits in accordance with the treating physician's medical impairment rating. We affirm.
On March 26, 2003, Dr. Silva placed the claimant at maximum medical improvement (MMI) for an admitted injury in March 2002, and assigned a permanent impairment rating. The respondents filed a timely Notice and Proposal for a DIME pursuant to § 8-42-107.2, C.R.S. 2003. On May 18, 2003, the respondents filed an application for selection of the DIME physician.
When the claimant expressed an interest in settling the claim, the respondents sent the claimant a written settlement agreement, and on May 21, 2003, the adjustor for the respondent-insurer wrote the Division of Workers' Compensation (Division) a letter to withdraw the respondents' request for a DIME. The claimant subsequently decided not to settle the claim. Consequently, on June 18, the respondents notified the Division that they wanted to proceed with the DIME.
The Division scheduled a DIME and the claimant attended the appointment. Consistent with the opinions of the DIME physician, the respondents filed a Final Admission of Liability (FAL) which admitted liability for zero permanent partial disability benefits. The claimant objected to the FAL and requested a hearing on permanent partial disability (PPD).
The ALJ determined the respondents withdrew the timely-filed DIME request, and that the June 18 request was not filed within the time prescribed by § 8-42-107.2. Therefore, the ALJ determined Dr. Silva's impairment rating was binding on the parties.
On review, the respondents contend the ALJ failed to address their argument that because the claimant attended the DIME scheduled pursuant to the June 18 DIME request, the claimant waived any objection to the ALJ's consideration of the DIME report. Relying on our conclusions in Romero v. Gerald Martin Ltd., W.C. No. 4-55-142 (March 8, 2004), the respondents also contend the ALJ exceeded her authority in determining that the DIME was invalid merely because the respondents delayed scheduling the actual examination date. We perceive no grounds on which to set aside the ALJ's order.
Subject matter jurisdiction "relates to the power or authority of the court to deal with a particular case." Sanchez v. Straight Creek Constructors, 41 Colo. App. 19, 580 P.2d 827 (1978). The ALJ's authority is strictly statutory and without subject matter jurisdiction, the ALJ has no authority to act. See Reed v. Industrial Claim Appeals Office, 13 P.3d 810 (Colo.App. 2000); Digital Equipment Corp. v. Industrial Claim Appeals Office, 894 P.2d 54 (Colo.App. 1995); Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). An ALJ's subject matter jurisdiction is created in and limited by the Workers' Compensation Act. Compton v. Industrial Claim Appeals Office, 13 P.3d 844 (Colo.App. 2000).
It is well established that a DIME is a jurisdictional prerequisite to the ALJ's adjudication of the claimant's medical impairment. Section 8-42-107(8)(c), C.R.S. 2003; Whiteside v. Smith 67 P.3d 1240 (Colo. 2003); Town of Ignacio v. Industrial Claim Appeals Office, 70 P.3d 513 (Colo.App. 2002); Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995). The procedures and time limits for requesting a DIME are established by § 8-42-107.2(b), C.R.S. 2003. The pertinent portion of § 8-42-107.2(2)(b) states:
"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."
In Lobato v. Industrial Claim Appeals Office, 94 P.3d 1173 (Colo.App. 2003), cert. granted 03SC556, August 2, 2004, the court held that the filing of a notice and proposal within the 30-day period provided by § 8-42-107.2(2) is a jurisdictional prerequisite to a DIME.
Here, it is undisputed that the respondents filed a notice and proposal for a DIME within 30 days of receiving the treating physician's medical impairment rating. However, the record amply supports the ALJ's finding that the respondents withdrew that request on May 21, 2003. ( See Claimant's hearing exhibit 7). The plain language of the May 21 letter is inconsistent with the respondents' contention that they sought only to postpone their request to set an "appointment" for the DIME. To the contrary, the letter requests to "withdraw" the "request" for a DIME. Under these circumstances, the ALJ reasonably inferred that the May 21 letter terminated the pending DIME process.
Moreover, the ALJ did not err in finding that the respondents' June 18, 2003 DIME request was filed more than 30 days after the respondents' receipt of the treating physician's medical impairment rating. Consequently, the ALJ properly determined that the June 18 DIME request was legally insufficient to revive the respondents' right to a DIME for purposes of challenging Dr. Silva's medical impairment rating.
The respondents reliance on Romero v. Gerald Martin Ltd., supra, for a contrary result is misplaced. In Romero, the claimant filed a timely notice and proposal for a DIME. An appointment for the DIME was scheduled, but the claimant failed to appear. Several months later, the DIME appointment was rescheduled. The respondents filed a motion to strike the resulting DIME report on grounds that the DIME 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. An ALJ concluded the claimant failed to show "good cause" for failing to appear for the first DIME appointment and that the second DIME appointment was set beyond the time limits allowed by the rules of procedure.
On appeal of the ALJ's order in Romero, a division of the Panel, with Examiner Halsey dissenting, concluded that § 8-42-107.2, does not establish a time within which the DIME examination must be performed. Therefore, the Panel concluded that failure to complete the DIME appointment within a specific period was not a jurisdictional bar to completion of the DIME. Nevertheless, the Panel agreed that the statute imposes time limits for filing a notice and proposal, and other stages of the DIME process.
Here, unlike Romero, the pertinent issue had nothing to do with scheduling the DIME appointment or the claimant's delay in appearing for the appointment. Rather, the issue was whether there was a valid DIME request for purposes of selecting a physician and setting the examination date. Nothing in Romero suggests that a timely filed DIME request preserves the right to a DIME even where the request is subsequently withdrawn. Indeed, the respondents' construction of the statute is inconsistent with the purpose of the DIME process to promote "the prompt payment of compensation to an injured worker without the necessity of a formal administrative determination in cases not presenting a legitimate controversy." See Dyrkopp v. Industrial Claim Appeals Office, 30 P.3d 821, 822 (Colo.App. 2001); Colorado AFL-CIO v. Donlon, 914 P.2d 396, 401 (Colo.App. 1995). Therefore, we conclude that Romero is legally and factually distinguishable.
Finally, the courts have repeatedly held that subject matter jurisdiction cannot be acquired by waiver or estoppel. See Vieweg v. BF Goodrich Company 170 Colo. 71, 459 P.2d 759 (Colo. 1969) ; Industrial Commission v. Plains Utility Co., 127 Colo. 506, 259 P.2d 282 (1953); United States Fidelity Guaranty Co. v. Industrial Commission, 99 Colo. 280, 61 P.2d 1033 (1936); Hasbrouck v. Industrial Commission, 685 P.2d 780 (Colo.App. 1984). It follows that the ALJ's failure to explicitly address the respondents' contention that the claimant waived her objection to the ALJ's authority to consider the DIME report was harmless and shall be disregarded. See § 8-43-310 C.R.S. 2003; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988).
IT IS THEREFORE ORDERED that the ALJ's order dated, February 9, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ Kathy E. Dean
____________________ Dona Halsey
Ellen R. Stein, Silverton, CO, Community Agriculture Alliance, Steamboat Springs, CO, Elliot L. Bloodsworth, Esq., Durango, CO, (For Claimant).
Brandee DeFalco Galvin, Esq., Pinnacol Assurance — Interagency Mail (For Respondents).
Sean Knight, Esq., Denver, CO.