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Brownson-Rausin v. Industrial Claim Appeals Office of the State of Colorado10/20/2005
rospective legislation. Again, we disagree.
A law is illegally retrospective if it takes away or impairs vested rights acquired under existing laws or creates a new obligation, imposes a new duty, or attaches a new disability to transactions or considerations already past. Colo. Const. art. II, ยง 11; Nye v. Indus. Claim Appeals Office, 883 P.2d 607 (Colo. App. 1994).
The substantive rights and liabilities of the parties to a workers' compensation case are determined by the statute in effect at the time of a claimant's injury, while procedural changes in the statute become effective during the pendency of a claim. Colo. Comp. Ins. Auth. v. Jones, ___ P.3d ___ (Colo. App. No. 03CA0487, 03CA1740, May 19, 2005). For purposes of retrospectivity analysis, substantive statutes relate to the creation, elimination, or modification of vested rights or liabilities, while procedural statutes relate only to remedies or modes of procedure to enforce such rights or liabilities. Am. Comp. Ins. Co. v. McBride, 107 P.3d 973 (Colo. App. 2004).
Section 8-42-107(8)(b)(II) establishes procedures for the determination of MMI and the allocation of the burden of proof. Its enactment did not deprive or impair any vested right belonging to claimant. Thus, because the statute effects a change that is procedural, it may be applied retroactively. See Am. Comp. Ins. Co. v. McBride, supra.
II.
Claimant further contends that the second ALJ erred in determining that the DIME was valid. Claimant argues that the first ALJ found that the first "DIME" was not a valid DIME, and therefore the same physician could not be chosen to perform a "follow-up" DIME. Claimant also asserts that the DIME physician was biased because of the first examination he conducted in 1995. We are not persuaded.
The finding of the first ALJ was that selection of a DIME physician was premature because no ATP had placed claimant at MMI. However, the first ALJ did not preclude a follow-up DIME by the same physician after it was determined that the time for selection of a DIME physician was ripe. Claimant cites no authority, and we are aware of none, that would prevent the Division from appointing the same physician to conduct the 2002 DIME.
Nor did the performance of the 1995 examination establish that the physician was biased so as to preclude him from performing the 2002 DIME.
The type of bias that must be avoided is the type of predisposition which arises from a physician's role in treating the claimant. See Dep't of Labor & Employment Rule XIV(L)(2)(h), 7 Code Colo. Regs. 1101-3. A treating physician may well be biased in favor of the selecting party. See Whiteside v. Smith, 67 P.3d 1240 (Colo. 2003)(DIME system was created in part to address the potential for treating physicians to be biased in favor of employer and insurer). Conversely, the Division's selection of a physician to perform a DIME is indicative of a determination that the physician is not biased and can evaluate the case independently. See Colo. AFL-CIO v. Donlon, supra.
Here, there is no showing that the DIME physician ever treated claimant or participated in her treatment. Nor is there any other evidence indicating that the DIME physician was biased in favor of either party. The mere fact that he attempted a DIME in 1995 does not establish any bias which would disqualify him from performing the DIME in 2002. Indeed, the rules governing workers' compensation cases contemplate that the same physician may perform more than one DIME "as appropriate" to complete the case. See Dep't of Labor & Employment Rule XIV(L)(7).
III.
Claimant also contends that by filing
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