Monfort Transportation v. Industrial Claim Appeals Office

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 physician’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 benefits 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, the claimant reaches MMI. Employer reasons that Rule IV(G)(1) is invalid because it impedes its statutory right to terminate temporary disability benefits when claimant reaches MMI.

Statutes are to be construed as a whole to give a consistent, harmonious, and sensible effect to all of their parts. When a court interprets a comprehensive legislative scheme, it must give meaning to all portions thereof and construe the statutory provisions to further the legislative intent. Board of County Commissioners v. Bainbridge, Inc., 929 P.2d 691 (Colo.1996).

The problem presented here is that on the one hand, TTD benefits are to cease when the claimant reaches MMI. Sections 8-42-105(3)(a) and 8-42-106(2)(a). On the other hand, medical impairment benefits are to begin on the date of MMI. Section 8-42-107(8)(d). If a medical impairment rating is not provided on the same date that MMI is determined and the insurer can terminate payment of TTD benefits without a hearing or admission, then the claimant is left without payment of any benefits until there is a determination of medical impairment.

When Rules IX(C)(l)(a) and IV(G)(1) are read in conjunction with one another, they require insurers to admit or deny liability for permanent disability. As stated by the Panel, the purpose of these rules is to afford insurers an opportunity for termination of temporary disability benefits, if claimants will continue to receive any permanent disability benefits admittedly due, without the interruption that could accompany a pending hearing. It would be inconsistent with this purpose to conclude that employer here satisfied the requirement to “take a position on permanent disability” by essentially stating that its position will be deferred until after an impairment rating is received.

Although the right to temporary disability benefits terminates when a claimant attains MMI, the right to medical impairment benefits commences simultaneously. Accordingly, the division acts consistently with the statutes when it requires a statement denying or admitting liability for permanent disability benefits. And, when liability is admitted, the insurer is required to specify the amount of compensation to be paid. Section 8-43-203(2)(b), C.R.S. (1996 Cum.Supp.). In order to determine the amount of compensation, the insurer must first ascertain and admit the extent of disability. See § 8-42-107, C.R.S. (1996 Cum.Supp.).

Further, the rules at issue here do not contravene the statute because employer can seek an order to permit the termination of temporary disability benefits. Department of Labor & Employment Rules IX(D)(1), 7 Code Colo. Reg. 1101-03.

Since employer did not satisfy all of the requirements for termination imposed by the rules, it was obligated to continue payment of TTD benefits in accordance with its admission of liability. See § 8-43-203(2)(d), C.R.S. (1996 Cum.Supp.); Vargo v. Colorado Industrial Commission, 626 P.2d 1164 (Colo.App.1981).

Under the law applicable to this claim, claimant’s right to a determination of PPD benefits ripened once he reached MMI. See § 8-42-107(8)(c). The insurer is to receive credit against permanent disability benefits for any temporary disability benefits paid beyond the date of MMI. Department of Labor & Employment Rule IV(G)(2), 7 Colo. Code Reg. 1101-3. Consequently, it appears reasonable that, insofar as the rules permit a termination of benefits based upon the treating physician’s opinion concerning MMI, the rules should also require insurers to make a good faith effort to determine the extent of the claimant’s PPD prior to terminating temporary benefits, and to admit any permanent disability. This insures that there is no interruption of benefits due claimants.

It follows that there is no error in the Panel’s affirmance of the director’s order for reinstatement of those benefits, or the denial of employer’s motion for reconsideration.

Employer’s remaining arguments are not persuasive for the reasons set forth in the Panel’s order.

The order of the Panel is affirmed.

CRISWELL, J., concurs. TAUBMAN, J., dissents.