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City Market3/13/2003
ORDER AFFIRMED
Ney and Marquez, JJ., concur
City Market, Inc., a self-insured employer (employer), seeks review of a final order of the Industrial Claim Appeals Office (Panel) awarding penalties to Amy Bueling (claimant) for employer's violation of a provision of the Workers' Compensation Act (Act) and of Department of Labor and Employment Rule IV(N)(6), 7 Code Colo. Regs. 1101-3. We affirm.
Claimant suffered a compensable injury to her left shoulder. Finding that claimant had reached maximum medical improvement (MMI), the treating physician rated a 16% upper extremity impairment, which she converted to a 10% whole person impairment. Based on this report, employer filed a final admission of liability for a 16% scheduled impairment of the left upper extremity.
Claimant filed an objection and a notice and proposal to select an independent medical examiner. She stated that she was not waiving any arguments and requested a division-sponsored independent medical examination (DIME) on the issues of both MMI and the impairment rating. In a report dated October 2000, the DIME physician agreed with the MMI date, but assigned a 35% upper extremity impairment rating, which he converted to a 21% whole person impairment rating. The DIME physician assigned a 21% "final/combined" whole person impairment rating. Employer admits that it filed neither an amended final admission of liability consistent with the DIME physician's permanent impairment rating nor an application for hearing to dispute the DIME physician's whole person impairment rating.
Consequently, claimant applied for penalties, alleging that employer's failure to file an admission or an application for hearing violated the Act and failed to obey Rule IV(N)(6). Employer countered that the treating physician's report supported a scheduled rating, not a whole person rating, and therefore, claimant was not entitled to a DIME to dispute impairment. According to employer, because claimant had no such entitlement, it had no duty to respond to the DIME report.
The administrative law judge (ALJ) found that claimant proved she suffered functional impairment to the whole person and that employer failed to overcome the DIME physician's whole person impairment rating. Accordingly, the ALJ awarded benefits based on that whole person rating. The ALJ also assessed a penalty against employer, concluding that employer's "refusal" to file a final admission or application for hearing following the issuance of the DIME report was unreasonable and constituted a violation of § 8-42-107.2, C.R.S. 2002, and Rule IV(N)(6). The Panel affirmed.
I.
In 1998 the General Assembly added § 8-42-107.2(4), C.R.S. 2002, to the Act and mandated that, within thirty days after the mailing of the DIME physician's report, the insurer or self-insured employer shall either file an admission of liability or request a hearing to contest the DIME report. See Colo. Sess. Laws 1998, ch. 313 at 1428-29 (effective Aug. 5, 1998); see also Rule IV(N)(6). The General Assembly's requirement is clear: an insurer or a self-insured employer must respond to a DIME physician's report and elect either to admit or to contest the report.
Rule IV(N)(6) also requires a self-insured employer either to admit liability or to file an application for hearing within thirty days after the date of mailing of the DIME report determining medical impairment.
Neither the statute nor the rule contains any qualification that would limit this obligation.
II.
Employer asserts that it was not obligated to respond to the DIME report because claimant was not entitled to a DIME. Employe
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