2021 Colorado Code
Title 8 - Labor and Industry
Article 42 - Benefits
§ 8-42-107.2. Selection of Independent Medical Examiner - Procedure - Time - Disclosures Regarding Physician Relationships With Insurers, Self-Insured Employers, or Claimants - Rules - Applicability

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 8-42-107.
2. 1. , the time for selection of an IME commences as follows, depending on which party initiates the dispute:
      1. 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 self-insured employer that includes an impairment rating issued in accordance with section 8-42-107.
      2. For the insurer or self-insured 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 self-insured employer.

   2. 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, first-class postage paid, addressed to the division and to the last-known 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.
   3. If the insurer or self-insured employer requests an IME and the examination is conducted before the insurer or self-insured employer admits liability pursuant to section 8-43-203 (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 8-43-203 (2)(b)(II).

3. 1. 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 and select 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 self-insured employer shall give written notice of such fact to the division within thirty days via United States mail, first-class postage paid. The division shall then, within ten days after receiving such written notice, select three physicians by a revolving selection process established by the division from the list of physicians 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. The director of the division shall promulgate rules to implement the process of selecting a panel of three physicians from which the parties may select a physician to conduct a division independent medical examination. The selection of a physician panel shall be based on various factors, including, but not limited to, the designation by rule of the fields of specialization authorized to perform independent medical examinations for conditions listed under each medical treatment guideline and measures to prevent the over-utilization of physicians or specialists. The requesting party shall have the opportunity to strike one of the three physicians from the list, followed by the opposing party who shall then be given the opportunity to strike one physician from the list. The remaining IME physician shall be designated by the division to conduct the IME. If one or neither party strikes a physician from the list, the division shall select the physician to conduct the IME from the remaining physicians on the list.
   2. Upon selection of the IME, the insurance carrier shall provide to the IME and all other parties a complete copy of all medical records in its possession pertaining to the subject injury, postmarked or hand-delivered within fourteen days prior to the independent medical examination. If the insurance carrier or its representative fails to timely submit such medical records, the claimant may request that the division cancel the independent medical examination or the claimant may submit all the medical records he or she has available within ten days prior to the independent medical examination, or as otherwise arranged by the division with the IME. If the claimant submits medical records, the defaulting party may supplement such records pursuant to rules of the division. This paragraph (b) shall not be construed to prohibit an independent medical examination from being rescheduled.
   3. Any supplemental medical records shall be prepared according to the rules of the division and shall be submitted to the IME and all other parties no later than seven days prior to the independent medical examination.
   4. 1. The IME shall neither contact any of the authorized treating physicians or any examining or reviewing physician nor request a claimant to undergo repeat testing when the testing results were valid and the IME has resolved any disparity in testing results. (d) (I) The IME shall neither contact any of the authorized treating physicians or any examining or reviewing physician nor request a claimant to undergo repeat testing when the testing results were valid and the IME has resolved any disparity in testing results.
      2. Subparagraph (I) of this paragraph (d), as enacted by Senate Bill 09-168, enacted in 2009, is declared to be procedural and was intended to and shall apply to all workers' compensation claims, regardless of the date the claim was filed. (3.5)
         1. of subsection (3) of this section, a party may request and shall be entitled to obtain and review a summary disclosure pertaining to any business, financial, employment, or advisory relationship between a listed physician, or any entity affiliated with the physician, and the insurer, self-insured employer, or claimant who is a party to the claim. The party shall not be required to make its determination to strike a physician from the list until he or she has received and has had a reasonable opportunity to review the summary disclosure.
         2. The director shall adopt rules as necessary to implement this subsection (3.5). At a minimum, the rules shall:
            1. Require physicians to disclose the requested business, financial, employment, or advisory relationship information in a summarized format;
            2. Detail the form and manner in which the summary disclosure is to be provided;
            3. Set parameters regarding the period within which a requesting party is allowed to review the summary disclosure prior to making a determination to strike a physician from the list; and
            4. Prohibit a physician who fails to disclose the requested summarized information from conducting an independent medical examination until he or she complies with the request.

4. 1. Upon receipt of the IME's report, the division has five business days to review the report and either:
      1. Issue a notice to all parties that the division has received the IME's report; or
      2. Notify the IME of any deficiencies in the report by letter and send copies to all parties.

   2. Upon notification of any deficiencies identified in the IME's report, the IME has twenty days to remedy the deficiencies and resubmit the report. After the report has been resubmitted, the division shall comply with paragraph (a) of this subsection (4). If the IME fails to timely respond to the notification of deficiencies, the division shall issue a notice that it has received the IME's report and the insurer or self-insured employer shall comply with paragraph (c) of this subsection (4).
   3. Within twenty days after the date of the mailing of the division's notice that it has received the IME's report, the insurer or self-insured employer shall either file its admission of liability pursuant to section 8-43-203 or request a hearing before the division contesting one or more of the IME's findings or determinations contained in such report.

5. 1. Except as provided in paragraph (b) of this subsection (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.
   2. A claimant who has established that he or she is indigent shall receive an independent medical examination without having to advance the cost to the independent medical examiner. The director of the division of workers' compensation shall promulgate rules to establish a procedure to determine indigence.

6. This section was enacted by House Bill 98-1062, as enacted at the second regular session of the sixty-first general assembly, as a remedial statute and is procedural in nature. The purpose of this section is to improve and simplify remedies already existing for the enforcement of rights and the redress of injuries under the workers' compensation laws of Colorado. This section effected procedures related to the selection of an IME and shall be applicable to all open cases with a date of injury on or after July 1, 1991, for which a division IME has not been requested, pursuant to section 8-42-107.

History. Source: L. 98: Entire section added, p. 1427, § 1, effective August 5. L. 99: (3) amended and (6) added, p. 254, § 1, effective September 1. L. 2003: (3) and (5) amended, p. 1712, § 2, effective August 6. L. 2007: (3)(a) amended, p. 1472, § 3, effective May 30. L. 2009: (3)(d) added,(SB 09-168), ch. 184, p. 806, § 1, effective August 5. L. 2010: (3)(d) amended,(SB 10-163), ch. 66, p. 231, § 1, effective March 31; (3.5) added,(SB 10-011), ch. 302, p. 1431, § 1, effective July 1. L. 2013: (4) amended,(SB 13-249), ch. 267, p. 1408, § 1, effective August 7.

Law reviews. For article, “Update on Colorado Appellate Decisions in Workers' Compensation Law”, see 32 Colo. Law. 97 (June 2003). For article, “Update on Colorado Appellate Decisions in Workers' Compensation Law”, see 32 Colo. Law. 113 (Oct. 2003). For article, “Failed Claim Closure: The Effect of Crigger on Workers' Compensation”, see 44 Colo. Law. 47 (Jan. 2015).

Once a claimant has successfully challenged a finding of maximum medical improvement (MMI) through the division independent medical examination (DIME) process, that process remains open, such that when the authorized treating physician makes a second finding of MMI, the employer or insurer may not file a final admission of liability to close the case until they return the claimant to the IME for a follow-up examination and determination of MMI. Williams v. Kunau, 147 P.3d 33 (Colo. 2006); Sanco Indus. v. Stefanski, 147 P.3d 5 (Colo. 2006).

An employer is limited to the remedies provided in this section when an injured worker requests an IME pursuant to this section. An employer's contention that its first admission to liability prior to the request for an IME pursuant to this section satisfies the requirement of subsection (4) is in error and does not relieve the employer from responding to the IME report pursuant to subsection (4). City Market, Inc. v. Indus. Claim Appeals Office, 68 P.3d 601 (Colo. App. 2003).

Failure of an employer to respond to an IME report pursuant to subsection (4) subjects an employer to penalties pursuant to § 8-43-304 (1) . City Market, Inc. v. Indus. Claim Appeals Office, 68 P.3d 601 (Colo. App. 2003).

An employer is precluded from challenging the IME physician's finding that claimant was not at MMI, including the IME physician's finding regarding the cause of claimant's symptoms because employer failed either to admit or contest liability within 30 days of the IME physician's report. Leprino Foods Co. v. Indus. Claim Appeals Office, 134 P.3d 475 (Colo. App. 2005).

A division-sponsored IME's “findings and determinations”, as contemplated by subsection (4)(c), do not include an IME's recommendation to convert a scheduled impairment to a whole person impairment, and the insurer and employer do not forfeit their right to challenge a claimant's request to convert his or her impairment even if the insurer and employer do not request a hearing on the issue of conversion within 20 days after the IME report. Morris v. Indus. Claim Appeals Office, 2020 COA 129 , 479 P.3d 49.

Claimant does not waive right to request an IME by accepting a lump sum payment because claimant's note requesting lump sum payment contained no statement indicating that, by accepting the lump sum payment, she intended to surrender her rights to challenge the employer's final admission of liability. Leprino Foods Co. v. Indus. Claim Appeals Office, 134 P.3d 475 (Colo. App. 2005).

Further, there was no written agreement establishing a waiver, and the claimant in fact challenged the final admission of liability by filing an objection to it, together with a notice and proposal for the IME on the same date she received the lump sum payment. Leprino Foods Co. v. Indus. Claim Appeals Office, 134 P.3d 475 (Colo. App. 2005).

The 30-day period for requesting a DIME does not begin to run for claimants who obtained and objected to a final admission of liability prior to the effective date of subsection (6) until such claimants receive notice of the 1999 amendment from the insurer or employer. Lobato v. Indus. Claim Appeals Office, 105 P.3d 220 (Colo. App. 2005).

Under the plain language of subsection (6), a claimant is not required to file a notice and proposal to select another division-sponsored IME if he or she has previously requested a division-sponsored IME to contest an authorized treating physician's initial determination of maximum medical improvement. Stefanski v. Indus. Claim Appeals Office, 128 P.3d 282 (Colo. App. 2005), aff'd on other grounds, 147 P.3d 5 (Colo. 2006).

When an employer requests an independent medical examination but then timely cancels the request pursuant to the department's rules after the treating physician reduced the original impairment rating, the employer's final admission of liability based on the amended impairment rating is effective, and the original impairment rating is no longer at issue. Montoya v. Indus. Claim Appeals Office, 203 P.3d 620 (Colo. App. 2008).

Employer's failure to initiate the DIME process to challenge the authorized treating physician's findings does not make the physician's opinion that the claimant sustained a work-related injury binding. The statutory scheme grants no authority to the physician to determine causation as it pertains to compensability, therefore, the physician's findings and determinations are inconsequential if causation has not been proved. Eller v. Indus. Claim Appeals Office, 224 P.3d 397 (Colo. App. 2009).

This section, when read in conjunction with § 8-42-107 (8) , makes it clear that the statutes contemplate a challenge through the DIME process only to determinations made by the authorized treating physician concerning MMI and impairment, therefore, this section is not unconstitutionally vague. Eller v. Indus. Claim Appeals Office, 224 P.3d 397 (Colo. App. 2009).