It has long been settled law that if the respondent fails to file an Application for Hearing timely challenging the opinions of the Division IME physician, the opinion becomes binding. Leprino v. Industrial Claim Appeals Office, 134 P.3d 475 (Colo. App. 2005)(the requirements of §8-42-107.2(4) 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 lacks jurisdiction to resolve a dispute as to those findings). Section 8-42-107.2 (4) recently was amended to require the Division of Workers’ Compensation IME Unit to review all Division IME reports and issue a notice informing the parties that the respondents have twenty (20) days from the date of the letter to file an admission of liability consistent with the Division IME physician’s opinion or an Application for Hearing challenging the findings of the Division IME physician. Adjusters should keep in mind that the amendments to Section 8-42-107.2(4) do not alter the jurisdictional nature of the requirement to challenge the Division IME physician’s opinions timely.
In Almanza v. Johnson, W. C. No. 4-713-132 (December 7, 2012), the Division IME physician issued his report on October 20, 2010. At the time, § 8-42-107.2(4) and W.C.R.P. 5-5(F) required the respondent to file an either an admission of liability or an Application for Hearing challenging the Division IME physician’s impairment rating within thirty (30) days. The respondents became aware of possible improper communication between the Division IME physician and the claimant’s interpreter during the Division IME, and obtained an Order holding requirements of W.C.R.P. 5-5(F) in abeyance so that they could depose the Division IME physician and the interpreter to determine whether the Division IME physician improperly communicated with the interpreter. Following the depositions, the respondents filed an Application for Hearing challenging the findings of the Division IME physician. At the hearing, the Administrative Law Judge determined that the Division IME physician engaged in improper communication with the interpreter and set aside the Division IME report. A new division IME physician was selected, and the respondents eventually filed a Final Admission of Liability consistent with the new Division IME physician’s impairment rating.
The matter proceeded to hearing on various issues, including Permanent Partial Disability benefits. The Administrative Law Judge found that the claimant had failed to overcome the Division IME physician’s impairment rating by clear and convincing evidence. The claimant appealed, arguing that the requirements of § 8-42-107.2(4) were jurisdictional, and that the respondents’ failure to file an application for hearing within 30 days of the first Division IME physician’s report made that Division IME physician’s impairment rating binding. The Industrial Claim Appeals Office agreed, finding that failure to file an Application for Hearing within the thirty (30) days jurisdictional time limit deprived the Administrative Law Judge jurisdiction to decide the issue of Permanent Partial Disability benefits, even though the respondents had obtained an order from a prehearing Administrative Law Judge holding the thirty (30) day time limit in abeyance.
Adjusters must remember that the amendments to § 8-42-107.2(4), which now require the respondents to take action within twenty (20) days of the letter from the Division IME Unit notifying the parties that it has concluded the Division IME process is complete, do not change the jurisdictional nature of the time limit. Therefore, if the respondents want to challenge any part of the Division IME physician’s opinion, even on procedural grounds, respondents must do so within twenty (20) days of the date the Division IME Unit issues its letter notifying the parties that the Division IME process is complete. Otherwise, the findings of the Division IME physician will be binding on all parties, and an Administrative Law Judge will have no jurisdiction to settle a dispute over the Division IME physician’s opinions.