Stefanski v. Indust. Claim Appeals Office, 04CA1296.

• Decision Date: 08 September 2005
• Docket Number: No. 04CA1296.,04CA1296.
• Parties: Richard STEFANSKI, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE of Colorado, Sanco Industries, and Liberty Mutual Insurance Company, Respondents.
• Court: Colorado Court of Appeals

Page 282

128 P.3d 282

Richard STEFANSKI, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE of Colorado, Sanco Industries, and Liberty Mutual Insurance Company, Respondents.

No. 04CA1296.

Colorado Court of Appeals, Div. II.

September 8, 2005.

Rehearing Denied November 3, 2005.

Certiorari Granted February 13, 2006.

Timothy Quinn, Denver, Colorado, for Petitioner.

John W. Suthers, Attorney General, Eric S. Rothaus, Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.

Law Offices of Jonathan S. Robbins, David G. Kroll, Denver, Colorado, for Respondents Sanco Industries and Liberty Mutual Insurance Company.

STERNBERG^*, J.

Petitioner, Richard Stefanski (claimant), seeks review of a final order of the Industrial Claim Appeals Office (Panel) determining that the final admission of liability (FAL) filed by Sanco Industries and Liberty Mutual Insurance Company (collectively employer) automatically closed his claim. We set aside the order and remand.

Claimant suffered a compensable back injury in May 1998 and later injured his right foot during exercise therapy for the back injury. Claimant also complained of left-hand symptoms.

Employer filed the FAL in March 1999, terminating temporary disability and medical benefits after the authorized treating physician (ATP) found that claimant was at maximum medical improvement (MMI). Employer voluntarily reinstated benefits after a division-sponsored independent medical examination (DIME) physician opined that claimant was not at MMI for the foot injury.

On May 18, 2001, the ATP placed claimant at MMI for the foot injury, and employer filed an amended FAL. Claimant filed a motion to strike the admission, asserting that the amended FAL was invalid because employer failed to obtain a follow-up DIME, as required by Rules of Procedure XIV(L)(7), 7 Code Colo. Regs. 1101-3 at 60.

Agreeing with claimant, the ALJ determined that under Rule XIV(L)(7), employer could not simply file another FAL, relying on the opinion of the treating physician, when claimant had successfully contested a previous determination of MMI through the DIME process. The ALJ concluded that Rule XIV(L)(7) required employer to return claimant to the DIME physician for a follow-up examination prior to filing the amended FAL. The ALJ therefore granted claimant's motion to strike the FAL, but determined that claimant failed to prove a causal connection between the back injury and his left-hand symptoms.

On review, the Panel determined that the ALJ erroneously found the amended FAL invalid. The Panel concluded that the claim was automatically closed when claimant failed to challenge the ATP's second opinion that he reached MMI by timely contesting the amended FAL and requesting a follow-up DIME within the time limits established by § 8-42-107.2(2)(b), C.R.S.2004. The Panel therefore held that the ALJ erred in striking the amended FAL and awarding additional benefits absent an order reopening the claim.

I.

Claimant first contends that the Panel erred in determining that employer could either file an amended FAL or request a DIME after the ATP opined for the second time that he reached MMI. We agree.

Section 8-43-203(2)(b)(II), C.R.S.2004, requires a claimant who contests a FAL to file an objection within thirty days and within that time to request "a hearing on any disputed issues that are ripe for hearing, including the selection of an independent medical examiner pursuant to section 8-42-107.2 if an independent medical examination has not already been conducted."

Further, § 8-42-107.2(2)(b) requires the party disputing a finding or determination of the ATP to request the selection of a DIME and to mail a notice and proposal for such selection within thirty days of the mailing of the FAL.

The Panel concluded that § 8-42-107(8), C.R.S.2004, is intended to place the parties in the same legal position that existed before the ATP's MMI determination and the initiation of the DIME process. Specifically, when, as here, MMI is redetermined by an ATP, the employer may either request a follow-up DIME to contest the ATP's determination of MMI or file a FAL based on the ATP's second MMI determination and rating. It then becomes incumbent on the claimant timely to request a follow-up DIME to contest the ATP's second MMI determination.

Claimant argued, and the ALJ agreed, that Rule XIV(L)(7) mandates a follow-up appointment with the DIME physician who determined claimant not to be at MMI. Therefore, under this argument, claimant's successful challenge to the ATP's MMI determination remains in effect until the DIME physician determines claimant has reached MMI after a follow-up examination or the DIME physician's determination that claimant is not at MMI is overruled after a hearing under § 8-42-107(8)(c), C.R.S.2004. Thus, according to claimant, under Rule XIV(L)(7), employer may not simply file another FAL relying upon the opinion of the ATP when claimant already had successfully contested a previous determination of MMI through the DIME process.

None of the statutory provisions expressly addressed the procedure applicable when the ATP's initial finding of MMI is set aside based on a DIME, additional treatment is provided, and the ATP later places claimant at MMI for the second time. This silence creates some ambiguity concerning the parties' respective duties.

We must construe the statutory scheme and rules in a manner that effects the intent of the General Assembly. If possible, the Workers' Compensation Act must be construed to give consistent, harmonious, and sensible effect to all its parts. City & County of Denver v. Indus. Claim Appeals Office, 107 P.3d 1019 (Colo.App.2004).

Section 8-42-107.2(6), C.R.S.2004, provides that "[t]his section effected procedures related to the selection of an IME and shall be applicable to all open cases with a date of injury on or after July 1, 1991, for which a division IME has not been requested, pursuant to ...