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Brownson-Rausin v. Industrial Claim Appeals Office of the State of Colorado10/20/2005
Thus, collateral estoppel did not preclude the second ALJ from determining the date of MMI. In the 2004 order, the second ALJ found that the prerequisites for determining MMI existed because employer complied with the new procedure for obtaining a DIME in cases where the ATP has not determined the claimant to be at MMI. See § 8-42-107(8)(b)(II). Thus, the second ALJ proceeded to the substantive issue of whether the DIME physician's finding of MMI had been overcome. That question was not previously decided, nor was it necessarily adjudicated by the first ALJ's 1999 order or the 2000 appellate opinion. See Sunny Acres Villa, Inc. v. Cooper, supra.
B.
We also reject claimant's assertion that the procedures for a DIME without MMI in § 8-42-107(8)(b)(II) did not govern the second ALJ's determination of MMI.
The procedures mandated by § 8-42-107(8)(b)(II) apply to "determinations" of MMI on or after July 1, 1996. Colo. Sess. Laws 1996, ch. 112 at 457.
While claimant argues that the term "determinations" refers to "legal determinations," we agree with the Panel that it means "medical determinations." See Dillard v. Indus. Claim Appeals Office, ___ P.3d ___ (Colo. App. No. 04CA0680, June 2, 2005)(courts traditionally give deference to statutory interpretation adopted by the officer or agency charged with its administration). Even if the term is susceptible of differing interpretations, we are convinced that the context in which the term "determinations" is used leaves no doubt that it refers to "medical determinations." See People v. Madden, 111 P.3d 452 (Colo. 2005)(where intended scope of a statute is ambiguous, court may examine statute's textual context to determine General Assembly's intent); Midboe v. Indus. Claim Appeals Office, 88 P.3d 643 (Colo. App. 2003)(if a statute is fairly susceptible of more than one interpretation, it is ambiguous, and court may look to statutory context).
Unlike the pre-1991 versions of the statute, the current statute provides that the determination of MMI is now primarily a medical determination. Monfort Transp. v. Indus. Claim Appeals Office, 942 P.2d 1358 (Colo. App. 1997). This conclusion is based both on the language of § 8-42-107(8)(b), which requires the ATP to make a determination in the first instance as to when the injured employee reaches MMI, and the recognition that the General Assembly sought to decrease litigation by providing a medical procedure to resolve the issue. See Colo. AFL-CIO v. Donlon, 914 P.2d 396 (Colo. App. 1995).
Furthermore, the plain language of amended § 8-42-107(8)(b), C.R.S. 2005, repeatedly uses forms of the term "determine" to refer to the determination by the ATP. This wording lends further support for the conclusion that the phrase "determination of MMI," as used in the provision for the effective date of the amended statute, refers to "medical determinations." See Dillard v. Indus. Claim Appeals Office, supra (court must construe the statutory scheme in a manner that gives consistent, harmonious, and sensible effect to all its parts).
Hence, the statute applies in cases where the required medical determinations of MMI occur after July 1, 1996. As found by the second ALJ, all the required medical determinations, including the report of employer's IME, the ATP's failure to place the claimant at MMI, and the DIME physician's 2002 report, occurred after July 1, 1996. The fact that the DIME physician also issued an opinion in 1995 does not change the fact that all required "determinations" were obtained after July 1, 1996.
C.
Claimant contends next that the amended version of § 8-42-107(8)(b)(II), as interpreted, constitutes ret
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