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Stefanski v. Industrial Claim Appeals Office of the State of Colorado9/8/2005
nd 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 " 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 section 8-42-107" (emphasis added).
Thus, under the plain language of § 8-42-107.2(6), claimant was not required to file a notice and proposal to select another DIME because he had previously requested a DIME to contest the ATP's initial determination of MMI.
We recognize that this conclusion is contrary to the position taken by the Panel in a series of administrative cases and the Director's ultimate conclusion reached in the "Interpretive Bulletin" issued on February 24, 2004. However, although interpretations of statutes by administrative agencies are customarily given respect and accorded deference by courts, they are not binding on a court. Banner Adver., Inc. v. People, 868 P.2d 1077 (Colo. 1994).
The Director's February 24, 2004 "Interpretative Bulletin" recognized the uncertainty in the requisite process and the Panel's acknowledgment that the relevant statutes are ambiguous because they do not expressly address the procedure to be followed. The Director stated that Rule XIV(L)(7) was adopted to make it clear that when it was determined that the claimant was not at MMI and required additional treatment, the DIME remained open. Therefore, the claimant could return for further examination and a determination by the DIME physician as to MMI. And when the Panel used the phrase "follow-up DIME," it referred to a follow-up examination that was part of the original DIME.
The conclusion reached by the Panel and the Director, however, that the parties otherwise are in the same position they would have been in if the DIME process had never begun, does not necessarily follow.
Accordingly, we agree with claimant that once he timely initiated the DIME process and the ATP placed him at MMI for the second time, employer had the obligation to return him to the DIME physician for a follow-up examination. Employer could not simply file an amended FAL in an
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