Monfort Transportation v. Industrial Claim Appeals Office

942 P.2d 1358, 1997 Colo. App. LEXIS 132
CourtColorado Court of Appeals
DecidedMay 29, 1997
DocketNo. 96CA2275
StatusPublished
Cited by9 cases

This text of 942 P.2d 1358 (Monfort Transportation v. Industrial Claim Appeals Office) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Monfort Transportation v. Industrial Claim Appeals Office, 942 P.2d 1358, 1997 Colo. App. LEXIS 132 (Colo. Ct. App. 1997).

Opinions

Opinion by

Judge MARQUEZ.

Monfort Transportation (employer) seeks review of a final order of the Industrial Claim Appeals Office (Panel) reinstating the temporary total disability (TTD) payments payable to James Schede (claimant). We affirm.

Claimant sustained an industrial injury in November 1995. The following month, employer admitted liability for TTD benefits from November 14,1995, and continuing. In April 1996, employer terminated TTD benefits based upon the authorized treating physi[1359]*1359cian’s report which stated that claimant had attained maximum medical improvement (MMI) as of March 4, 1996. Later in April, employer applied for a division sponsored independent medical examination (IME). On May 13,1996, claimant contacted the division of workers’ compensation (division) to object to termination of his TTD benefits.

The division contacted employer on May 17, 1996, and directed reinstatement of TTD benefits because employer had failed to file an admission for permanent disability benefits simultaneously with the termination of TTD benefits. That same day, employer filed with the division a general admission of liability which stated that employer had applied for an IME “as Claimant received treatment in New York. If any permanency is awarded, it will be paid after rating is received....” Employer did not check the box indicating an admission of liability for permanent partial disability (PPD) benefits.

By order dated May 24, 1996, the director of the division (director) found that the admission did not include a position on, or admit liability for, permanent impairment, as required by Department of Labor & Employment Rules IV(G)(1) and IX(C)(l)(a), 7 Code Colo. Reg. 1101-3, then in effect. In order to comply with these rules, the director found, employer was required to state whether claimant had permanent impairment at the time TTD benefits were terminated. Therefore, the director ordered employer to reinstate TTD benefits “until such time as benefits may be properly terminated in accordance with Rules IV and IX, or until a hearing is held and further order is entered.” The IME physician provided a permanent partial impairment rating on June 25, 1996. Employer’s motion to reconsider the May 24, 1996, order was denied on June 28, 1996.

Employer, on July 8, 1996, filed a Final Admission of Liability admitting the IME’s whole-person rating and claimant was paid a lump sum PPD award, discounted. Although the employer appealed the Director’s orders, the Panel affirmed.

Employer contends that Rules IV(G)(1) and IX(C)(l)(a) are inconsistent with those portions of the Workers’ Compensation Act (Act) governing termination of temporary disability benefits and that, thus, the Director erred in ordering employer to pay TTD benefits beyond the date of MMI. We disagree.

Section 8-42-105(1), C.R.S. (1996 Cum. Supp.) provides in pertinent part that, except where vocational rehabilitation is offered and accepted, TTD payments shall cease upon the occurrence of any of the events enumerated in § 8-42-105(3), C.R.S. (1996 Cum. Supp.). Here, vocational rehabilitation was not offered.

Section 8-42-105(3)(a), however, provides that TTD benefits “shall continue until” the employee reaches MMI. See also § 8-42-106(2)(a), C.R.S. (1996 Cum.Supp.) (temporary partial disability).

Unlike under prior versions of the statute, the determination of MMI is now primarily a medical determination. See § 8-42-107(8)(b), C.R.S. (1996 Cum.Supp.) (MMI is, in the first instance, a medical decision); Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App.1995) (since determination of MMI was historically the subject of extensive litigation, the General Assembly sought to decrease such litigation by providing a medical procedure to resolve the issue). Cf. A & R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App.1988) (prior to amendments to Act, director had authority to determine MMI).

When the injured employee’s date of MMI has been determined pursuant to § 8-42-107(8)(b) and there is a determination that permanent medical impairment has resulted from the injury, the authorized treating physician shall determine the medical impairment rating. Section 8-42-107(8)(c), C.R.S. (1996 Cum.Supp.).

Medical impairment benefits are then determined by the formula set forth in the statute and “shall be paid ... beginning on the date of maximum medical improvement.” Section 8-42-107(8)(d), C.R.S. (1996 Cum. Supp.); see Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo.1995) (reinstating Panel’s finding that the date of MMI severs the claimant’s right to temporary disability [1360]*1360benefits and invokes the claimant’s right to receive permanent disability benefits).

Rule IX(C)(l)(a), then in effect, provided that an insurance carrier may terminate temporary disability benefits without a hearing by filing an admission of liability form with a medical report indicating that claimant has reached MMI, “provided such admission of liability shall state a position on permanent disability benefits as provided in Rule IV, G.” In turn, Rule IV(G)(1) provided that “the admission of liability form shall contain an admission for permanent disability benefits, if any” (emphasis added).

Department of Labor & Employment Rule IX(H)(2), 7 Code Colo. Reg. 1101-3, also provides that if a claimant alleges the insurance carrier has terminated TTD without following the provisions of the rule, the director may set the matter for hearing or order the insurance earner to continue payment of TTD benefits until the rules are followed or a hearing is held and order entered.

The director may promulgate the rules and regulations governing the administration of the Act. Section 8-47-107, C.R.S. (1996 Cum.Supp.). However, an administrative rule is not the equivalent of a statute. Cornerstone Partners v. Industrial Claim Appeals Office, 830 P.2d 1148 (Colo.App.1992). Therefore, any regulation that is contrary to or inconsistent with the regulatory authorizing statute is void. Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App.1995).

The parties have the right to have the issue of MMI, and consequently termination of TTD, heard by the ALJ. The statutory method for challenging an MMI determination is set forth in § 8-42-107(8)(b). And, if a factual issue arises as to the attainment of MMI, then the ALJ must resolve that issue. See Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App.1996) (when authorized treating physician gives two conflicting opinions as to MMI, and no IME was requested, ALJ may resolve factual question of when MMI was reached). Here, however, neither party requested a hearing on MMI.

Employer’s argument that these rules are invalid rests on § 8^42-105(3)(a) which provides that temporary disability benefits “shall continue until,” inter alia,

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Monfort Transp. v. INDUS. CLAIM APP. OFF.
942 P.2d 1358 (Colorado Court of Appeals, 1997)

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942 P.2d 1358, 1997 Colo. App. LEXIS 132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/monfort-transportation-v-industrial-claim-appeals-office-coloctapp-1997.