CORRECTED
BY REPRESENTATIVES Paschall, Arrington, Musgrave, Pfiffner, and Young;
also SENATORS Arnold and Tebedo.
CONCERNING PROCEDURAL REQUIREMENTS FOR THE SELECTION
OF AN INDEPENDENT MEDICAL EXAMINER IN CASES OF DISPUTES UNDER
THE "WORKERS' COMPENSATION ACT OF COLORADO".
Be it enacted by the General Assembly of the State
of Colorado:
SECTION 1. Article
42 of title 8, Colorado Revised Statutes, is amended BY THE ADDITION
OF A NEW SECTION to read:
842107.2. Selection of
independent medical examiner procedure time.
(1) THIS SECTION GOVERNS THE SELECTION OF AN INDEPENDENT
MEDICAL EXAMINER, ALSO REFERRED TO IN THIS SECTION AS AN "IME",
TO RESOLVE DISPUTES ARISING UNDER SECTION 842107.
(2) (a) (I) EXCEPT AS OTHERWISE
PROVIDED IN SUBPARAGRAPH (II) OF THIS PARAGRAPH (a), THE TIME
FOR SELECTION OF AN IME COMMENCES AS FOLLOWS, DEPENDING ON WHICH
PARTY INITIATES THE DISPUTE:
(A) FOR THE CLAIMANT, THE TIME FOR SELECTION
OF AN IME COMMENCES WITH THE DATE OF MAILING OF A FINAL ADMISSION
OF LIABILITY BY THE INSURER OR SELFINSURED EMPLOYER THAT
INCLUDES AN IMPAIRMENT RATING ISSUED IN ACCORDANCE WITH SECTION
842107.
(B) FOR THE INSURER OR SELFINSURED
EMPLOYER, THE TIME FOR SELECTION OF AN IME COMMENCES WITH THE
DATE ON WHICH THE DISPUTED FINDING OR DETERMINATION IS MAILED
OR PHYSICALLY DELIVERED TO THE INSURER OR SELFINSURED EMPLOYER.
(II) IF, AS OF THE DATE ON WHICH THE TIME
FOR SELECTION OF AN IME WOULD OTHERWISE COMMENCE, A MEDICAL CONDITION
IS NOT YET RATABLE BECAUSE OF A PROVISION IN THE MEDICAL TREATMENT
GUIDELINES OR IN THE REVISED THIRD EDITION OF THE "AMERICAN
MEDICAL ASSOCIATION GUIDES TO THE EVALUATION OF PERMANENT IMPAIRMENT",
THE TIME FOR SELECTION OF AN IME SHALL COMMENCE ON THE DATE ON
WHICH AN IMPAIRMENT RATING IS MAILED OR PHYSICALLY DELIVERED.
(b) IF ANY PARTY DISPUTES A FINDING OR
DETERMINATION OF THE AUTHORIZED TREATING PHYSICIAN, SUCH PARTY
SHALL REQUEST THE SELECTION OF AN IME. THE REQUESTING PARTY SHALL
NOTIFY ALL OTHER PARTIES IN WRITING OF THE REQUEST, ON A FORM
PRESCRIBED BY THE DIVISION BY RULE, AND SHALL PROPOSE ONE OR MORE
ACCEPTABLE CANDIDATES FOR THE PURPOSE OF ENTERING INTO NEGOTIATIONS
FOR THE SELECTION OF AN IME. SUCH NOTICE AND PROPOSAL IS EFFECTIVE
UPON MAILING VIA UNITED STATES MAIL, FIRSTCLASS POSTAGE
PAID, ADDRESSED TO THE DIVISION AND TO THE LASTKNOWN ADDRESS
OF EACH OF THE OTHER PARTIES. UNLESS SUCH NOTICE AND PROPOSAL
ARE GIVEN WITHIN THIRTY DAYS AFTER THE DATE OF MAILING OF THE
FINAL ADMISSION OF LIABILITY OR THE DATE OF MAILING OR DELIVERY
OF THE DISPUTED FINDING OR DETERMINATION, AS APPLICABLE PURSUANT
TO PARAGRAPH (a) OF THIS SUBSECTION (2) , THE AUTHORIZED TREATING
PHYSICIAN'S FINDINGS AND DETERMINATIONS SHALL BE BINDING ON ALL
PARTIES AND ON THE DIVISION.
(c) IF THE INSURER OR SELFINSURED
EMPLOYER REQUESTS AN IME AND THE EXAMINATION IS CONDUCTED BEFORE
THE INSURER OR SELFINSURED EMPLOYER ADMITS LIABILITY PURSUANT
TO SECTION 843203 (2) (b), THE CLAIMANT MAY NOT REQUEST
A SECOND INDEPENDENT MEDICAL EXAMINATION ON THAT ISSUE BUT MAY
APPEAL THE IME'S DECISION, AS SET FORTH IN SECTION 843203
(2) (b) (II).
(3) UPON RECEIVING THE REQUESTING PARTY'S
NOTICE AND PROPOSAL PURSUANT TO SUBSECTION (2) OF THIS SECTION,
THE OTHER PARTIES HAVE UNTIL THE END OF THE THIRTIETH DAY AFTER
THE DATE OF MAILING OF SUCH NOTICE AND PROPOSAL WITHIN WHICH TO
NEGOTIATE THE SELECTION OF AN IME. IF THE PARTIES AGREE ON AN
IME ON OR BEFORE SUCH THIRTIETH DAY, THE REQUESTING PARTY SHALL
PROMPTLY NOTIFY THE IME IN WRITING THAT HE OR SHE HAS BEEN SELECTED.
IF, WITHIN SUCH TIME, THE PARTIES ARE UNABLE TO AGREE OR THE
REQUESTING PARTY RECEIVES NO RESPONSE TO THE NOTICE AND PROPOSAL,
THE INSURER OR SELFINSURED EMPLOYER SHALL GIVE WRITTEN NOTICE
OF SUCH FACT TO THE DIVISION WITHIN THIRTY DAYS VIA UNITED STATES
MAIL, FIRSTCLASS POSTAGE PAID. THE DIVISION SHALL THEN,
WITHIN TEN DAYS AFTER RECEIVING SUCH WRITTEN NOTICE, SELECT AN
IME FROM A LIST OF IMES MAINTAINED BY THE DIVISION. THE DIVISION
SHALL ADMINISTER THE LIST IN SUCH FASHION AS TO ENSURE THAT THE
NAMES OF CANDIDATES TO SERVE AS IME IN EACH PENDING CASE REMAIN
CONFIDENTIAL UNTIL THE IME IS SELECTED AND THAT SELECTIONS ARE
ROTATED OR OTHERWISE DISTRIBUTED UNIFORMLY AND RANDOMLY AMONG
THE POOL OF CANDIDATES.
(4) WITHIN THIRTY DAYS AFTER THE DATE
OF THE MAILING OF THE IME'S REPORT, THE INSURER OR SELFINSURED
EMPLOYER SHALL EITHER FILE ITS ADMISSION OF LIABILITY PURSUANT
TO SECTION 843203 OR REQUEST A HEARING BEFORE THE
DIVISION CONTESTING ONE OR MORE OF THE IME'S FINDINGS OR DETERMINATIONS
CONTAINED IN SUCH REPORT.
(5) THE REQUESTING PARTY SHALL ADVANCE
THE FULL COST OF THE INDEPENDENT MEDICAL EXAMINATION TO THE IME
AT LEAST TEN DAYS BEFORE THE APPOINTED TIME FOR THE EXAMINATION.
SECTION 2. The
introductory portion to 842107 (8) (b) (II) and 842107
(8) (b) (III), (8) (b.5) (I) (D), (8) (b.5) (II), and (8) (c),
Colorado Revised Statutes, are amended to read:
842107. Permanent partial
disability benefits schedule medical impairment
benefits how determined. (8) Medical
impairment benefits determination of MMI for scheduled
and nonscheduled injuries. (b) (II) If at
any time either party disputes a
determination by an authorized treating physician on the question
of whether the injured worker has or has not reached maximum medical
improvement, the parties may select
an independent medical examiner by
mutual agreement. The finding of such independent medical examiner
shall be binding on the parties and on the division. If the parties
are unable to mutually agree on the selection of an independent
medical examiner, the division shall select an independent medical
examiner from a list of independent medical examiners maintained
by the division MAY BE SELECTED IN
ACCORDANCE WITH SECTION 842107.2; except that, if
an authorized treating physician has not determined that the employee
has reached maximum medical improvement, the employer or insurer
may only request the division to select
SELECTION OF an independent medical examiner if all of the following
conditions are met:
(III) The finding of an independent medical
examiner appointed pursuant to
IN A DISPUTE ARISING UNDER subparagraph (II) of this paragraph
(b) regarding maximum medical improvement
shall be overcome only by clear and convincing evidence. A hearing
on this matter shall not take place until the finding of the independent
medical examiner selected by the director
has been filed with the division.
(b.5) When an authorized treating physician
providing primary care who is not accredited under the level II
accreditation program pursuant to section 842101 (3.5)
makes a determination that an employee has reached maximum medical
improvement, the following procedures shall apply:
(I) (D) If the employee, insurer,
or selfinsured employer disputes a medical impairment rating,
including a finding that there is no medical impairment, made
pursuant to subsubparagraph (A) of this subparagraph (I),
the parties to the dispute may select an independent medical examiner
by mutual agreement
IN ACCORDANCE WITH SECTION 842107.2 to review the
rating. The findings of such independent
medical examiner shall be binding on both parties and the division.
If the parties are unable to agree on an independent medical
examiner, the division shall select an independent medical examiner
from a list of independent medical examiners maintained by the
division. The cost of such independent
medical examination shall be borne by the requesting party. The
finding of such independent medical examiner concerning
the medical impairment rating shall
be overcome only by clear and convincing evidence. Any review
by an independent medical examiner shall be based on the employee's
written medical records only, without further examination, unless
a party to the dispute requests that such review include a physical
examination by the selected
independent medical examiner. The party requesting a physical
examination shall pay all additional costs, including, if applicable,
the reasonable cost of returning the employee to Colorado.
(II) If the employee is a state resident,
such physician shall, within twenty days after the determination
of maximum medical improvement, determine whether the employee
has sustained any permanent impairment. If the employee has sustained
any permanent impairment, such physician shall refer such employee
to a level II accredited physician for a medical impairment rating,
which shall be based on the revised third edition of the "American
Medical Association Guides to the Evaluation of Permanent Impairment".
If the referral is not timely made by the authorized treating
physician, the insurer or selfinsured employer shall refer
the employee to a level II accredited physician within forty days
after the determination of maximum medical improvement. If the
employee, insurer, or selfinsured employer disputes the
finding regarding permanent medical impairment, including a finding
that there is no permanent medical impairment, the parties to
the dispute may select an independent medical examiner by
mutual agreement. The finding of such independent medical examiner
shall be binding on the parties and on the division. If the parties
are unable to mutually agree on the selection of an independent
medical examiner, the division shall make such selection from
a list of independent medical examiners maintained by the division
IN ACCORDANCE WITH SECTION 842107.2. The cost of
such independent medical examination shall be borne by the requesting
party. The finding of any such independent medical examiner regarding
a medical impairment rating shall
be overcome only by clear and convincing evidence.
(c) When the injured employee's date of
maximum medical improvement has been determined pursuant to paragraph
(b) of this subsection (8), and there is a determination that
permanent medical impairment has resulted from the injury, the
authorized treating physician shall determine a medical impairment
rating as a percentage of the whole person based on the revised
third edition of the "American Medical Association Guides
to the Evaluation of Permanent Impairment", in effect as
of July 1, 1991. Except for a determination by the authorized
treating physician providing primary care that no permanent medical
impairment has resulted from the injury, any physician who determines
a medical impairment rating shall have received accreditation
under the level II accreditation program pursuant to section 842101.
For purposes of determining levels of medical impairment, the
physician shall not render a medical impairment rating based on
chronic pain without anatomic or physiologic correlation. Anatomic
correlation must be based on objective findings. If either party
disputes the authorized treating physician's finding of medical
impairment, including a finding that there is no permanent medical
impairment, the parties may select an independent medical examiner
by mutual agreement. The finding
of such independent medical examiner shall be binding on the parties
and on the division. If the parties are unable to mutually agree
on the selection of an independent medical examiner, the division
shall select an independent medical examiner from a list of independent
medical examiners maintained by the division
IN ACCORDANCE WITH SECTION 842107.2. The cost of
such independent medical examination shall be borne by the requesting
party. The finding of such independent medical examiner regarding
the medical impairment rating shall
be overcome only by clear and convincing evidence. A hearing
on this matter shall not take place until the finding of the independent
medical examiner selected by the director
has been filed with the division.
SECTION 3. 843203
(2) (b), Colorado Revised Statutes, is amended to read:
843203. Notice concerning
liability notice to claimant. (2) (b) (I) If
the employer or, if insured, the employer's insurance carrier
admits liability, such notice shall specify the amount of compensation
to be paid, to whom compensation will be paid, the period for
which compensation will be paid, and the disability for which
compensation will be paid, and payment thereon shall be made forthwith
IMMEDIATELY.
(II) An admission of liability for final
payment of compensation shall include a statement that this is
the final admission by the workers' compensation insurance carrier
in the case, that the claimant may contest this admission if the
claimant feels entitled to more compensation, to whom the claimant
should provide written objection, and notice TO THE CLAIMANT that
THE CASE WILL BE AUTOMATICALLY CLOSED AS TO THE ISSUES ADMITTED
IN THE FINAL ADMISSION if the claimant does not, WITHIN THIRTY
DAYS AFTER THE DATE OF THE FINAL ADMISSION, contest the final
admission in writing within sixty
days of the date of the final admission the case will be automatically
closed as to the issues admitted in the final admission
AND REQUEST A HEARING ON ANY DISPUTED ISSUES THAT ARE RIPE FOR
HEARING, INCLUDING THE SELECTION OF AN INDEPENDENT MEDICAL EXAMINER
PURSUANT TO SECTION 842107.2 IF AN INDEPENDENT MEDICAL
EXAMINATION HAS NOT ALREADY BEEN CONDUCTED. When the final admission
is predicated upon medical reports, such reports shall accompany
the final admission.
SECTION 4. 846105,
Colorado Revised Statutes, is amended to read:
846105. Calculation of
premium permanent total disability employer may
request examination. (1) Effective
July 1, 1993, in any case in which an employee previously has
sustained permanent partial disability and, in a subsequent injury,
sustains additional permanent partial disability and it is shown
that the combined industrial disabilities render the employee
permanently and totally disabled, then the premiums of the employer
in whose employ the employee sustained such subsequent injury
shall be determined only on the basis of the impairment rating
for such subsequent injury and not on the basis of the employee's
permanent total disability. If such employer disputes the impairment
rating for the subsequent injury, the employer shall request an
independent medical examination pursuant to the procedures set
forth in section 842107
842107.2. The finding of the independent medical
examiner regarding the impairment rating may be overcome only
by clear and convincing evidence. The total cost of the employee's
permanent total disability shall not be considered in determining
the employer's premiums, but shall be considered by the commissioner
of insurance in setting rates.
(2) In any case in which an employee becomes
disabled by an occupational disease and the employer is liable
for benefits pursuant to section 841304 (2), then
the premiums of the employer in whose employ the employee became
disabled shall be determined only on the basis of the impairment
rating for the portion of the occupational disease attributable
to such employer and not on the basis of the combination of such
portion and any prior impairment resulting from such occupational
disease. For the purposes of premium calculations, if such employer
disputes the impairment rating for the occupational disease, the
employer shall request an independent medical examination pursuant
to the procedures set forth in section 842107
842107.2. The finding of the independent medical
examiner regarding the impairment rating may be overcome only
by clear and convincing evidence. The total cost of the employee's
occupational disease shall not be considered in determining the
employer's premiums, but shall be considered by the commissioner
of insurance in setting rates.
SECTION 5. Effective
date applicability. (1) This act shall
take effect at 12:01 a.m. on the day following the expiration
of the ninetyday period after final adjournment of the general
assembly that is allowed for submitting a referendum petition
pursuant to article V, section 1 (3) of the state constitution;
except that, if a referendum petition is filed against this act
or an item, section, or part of this act within such period, then
the act, item, section, or part, if approved by the people, shall
take effect on the date of the official declaration of the vote
thereon by proclamation of the governor.
(2) The provisions of this act shall apply to cases of injuries occurring on or after the applicable effective date of this act.
____________________________ ____________________________
Charles E. Berry Tom Norton
SPEAKER OF THE HOUSE PRESIDENT OF
OF REPRESENTATIVES THE SENATE
____________________________ ____________________________
Judith M. Rodrigue Patricia K. Dicks
CHIEF CLERK OF THE HOUSE ASSISTANT SECRETARY OF
OF REPRESENTATIVES THE SENATE
APPROVED________________________________________
_________________________________________
Roy Romer
GOVERNOR OF THE STATE
OF COLORADO