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Administrative Law Judge Cannot Extend Time to Challenge Division IME Findings; Improper Communication in a Division IME not a Basis to Strike Report as a Matter of Law

The Industrial Claim Appeals Office recently held that an Administrative Law Judge does not have jurisdiction to extend the thirty-day time limit to file an Application for Hearing to challenge the findings of a Division IME as found in § 8-42-107.2(4). Almanza v. Johnson, W.C. No. 4-713-132 (December 7, 2012). In Almanza, the respondents became aware of possible improper communication between the Division IME physician and the claimant’s interpreter during the Division IME appointment. Respondents requested a pre-hearing conference seeking an order to hold the 30-day time limit to challenge the findings of the Division IME physician in abeyance so that they could depose the Division IME physician and the interpreter. The Prehearing Administrative Law Judge issued an order holding the 30-day time limit to challenge the findings of the Division IME physician’s opinion in abeyance until respondents could depose the Division IME physician and the interpreter. The Prehearing Administrative Law Judge’s order required the respondents to either admit liability consistent with the Division IME physician’s findings or file an application for hearing challenging the Division IME physician’s findings within 10 days of completion of the depositions. Within 10 days of completion of the depositions the respondents filed an Application for Hearing challenging the opinion of the Division IME physician. By that time, more than 30 days had passed since the Division IME physician had issued his report.

At the hearing, the claimant requested the Administrative Law Judge enter an order finding that the respondents waived the right to challenge the Division IME physician’s opinion because respondents did not file an Application for Hearing within 30 days of completion of the Division IME as required by § 8-42-107.2(4). The Administrative Law Judge denied the motion, finding that the respondents were justified in relying upon the Prehearing Conference Order extending the time for respondents to file an Application for Hearing challenging the opinions of the Division IME physician. The Administrative Law Judge then found that because the Division IME physician had difficulty extracting information from the claimant and believed that the claimant was confused, the Division IME physician asked the interpreter whether she felt the claimant had received good care and whether the authorized treating physician was a good physician. Although the Administrative Law Judge found that the information provided by the interpreter was not material to the Division IME report or rating, he nonetheless concluded that the Division IME report “was not a proper DIME report” because the communication between the Division IME physician and the interpreter violated W.C.R.P. 11-2(K) (prohibiting the Division IME physician from communication with anyone but the Division staff). Therefore, the Administrative Law Judge struck the Division IME report and ordered the claimant to undergo another Division IME.

On appeal, the Industrial Claim Appeals Office first found that the Administrative Law Judge erroneously found that the respondents did not waive the right to challenge the Division IME, because the Administrative Law Judge did not have jurisdiction to extend the 30-day time limit for challenging the findings of a Division IME. Section 8-42-107.2(4) provides that within 30 days after the Division IME physician’s report is mailed, the respondent shall either file its admission of liability or request a hearing before the division contesting one or more of the Division IME’s findings or determinations contained in such report. In Leprino v. Industrial Claim Appeals Office, 134 P.3d 475 (Colo. App. 2005), the court of appeals held that the requirements of §8-42-107.2(4), C.R.S. are jurisdictional and if the parties fail to request a hearing to contest the DIME physician’s findings, those findings become binding on the parties and the Administrative Law Judge and the Administrative Law Judge lacks jurisdiction to resolve a dispute as to those findings. Therefore, even though the respondents complied with the Prehearing Administrative Law Judge’s Order extending the time to challenge the findings of the Division IME physician’s opinion, Industrial Claim Appeals Office found that because the respondents requested the relief for which the Administrative Law Judge had no jurisdiction to give, the respondents ran the risk that the Prehearing Administrative Law Judge’s order ultimately might be overturned. Thus, while the respondents’ reliance on the Prehearing Administrative Law Judge’s order might absolve the respondents of liability for penalties for failure to act timely, because the Administrative Law Judge never had jurisdiction to extend the time to act, the respondents waived the right to challenge the findings of the Division IME physician.

The Industrial Claim Appeals Office then went on to determine that the Administrative Law Judge erred in finding that the Division IME report did not constitute a “finding of impairment within the meaning of §8-42-107(8)(c)” because the Division IME physician engaged in communication with the interpreter which violated W.C.R.P. 11-2(K). The Industrial Claim Appeals Office held that the Administrative Law Judge’s decision to strike the completed Division IME report as a matter of law contravenes the express statutory requirement that the party contesting a Division IME must overcome it by clear and convincing evidence pursuant to § 8-42-107(8)(c). The Industrial Claim Appeals Office held that the respondents’ complaints concerning the completed Division IME physician’s report, including the physician’s alleged reliance on improper communication, were factors for the Administrative Law Judge to consider in determining whether the Division IME physician’s opinions were overcome by clear and convincing evidence, rather than invalidating the Division IME physician’s report as a matter of law.

The Industrial Claim Appeals Office opinion contains two major flaws which make the effect of this decision unclear. First, once the Industrial Claim Appeals Office determined that the respondents waived the right to challenge the findings of the Division IME physician, the issue of whether the Administrative Law Judge should have stricken the Division IME report as a matter of law due to the improper communication became moot because the Division IME physician’s opinions were binding on the respondents. Therefore, the Industrial Claim Appeals Office had no reason to consider the second issue, and, as a result, the holding concerning the effect of improper communication in a Division IME may be dicta and not controlling.

Second, the Industrial Claim Appeals Office’s opinion concludes that the Administrative Law Judge erred in finding that the Division IME physician’s improper communication with the interpreter invalidated the Division IME physician’s opinion “as a matter of law.” Rather, the Industrial Claim Appeals Office concluded, the Administrative Law Judge should have determined whether the evidence of the improper communication met the respondents’ burden of overcoming the Division IME physician’s opinion by clear and convincing evidence. However, there is nothing in the Industrial Claim Appeals Office decision which establishes that the Administrative Law Judge found that the improper communication invalidated the Division IME physician’s opinion “as a matter of law.” On the contrary, the opinion indicates that the Administrative Law Judge found that the Division IME physician’s report “did not constitute a ‘finding of impairment within the meaning of §8-42-107(8)(c).’” The Industrial Claim Appeals Office appears to conclude that the Administrative Law Judge implicitly made this finding “as a matter of law” rather than as a matter of fact based on the evidence presented. Since the Industrial Claim Appeals Office addressed the matter on appeal, it should have remanded the matter back to the Administrative Law Judge for additional findings on whether respondents met their burden of proof as a matter of fact or he decided the issue as a matter of law.

Notwithstanding the ambiguities of the decision, there are two lessons to be learned from this case. First, any time the statute provides a deadline for taking action, failure to comply with that deadline may result in waiver of the right to take the action, even if an Administrative Law Judge grants an extension of time. Second, alleged violations of the rules governing Division IMEs are not a sufficient basis to strike a Division IME report; rather, they are only one factor to be considered in whether the party challenging the opinion has overcome it by clear and convincing evidence.

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