2023 Colorado Revised Statutes › Title 8 - LABOR AND INDUSTRY (§§ 8-1-101 — 8-88-207) › LABOR II - WORKERS COMPENSATION AND RELATED PROVISIONS (§§ 8-40-101 — 8-67-113) › WORKERS COMPENSATION (§§ 8-40-101 — 8-47-209) › Article 42 - BENEFITS (§§ 8-42-101 — 8-42-127) › Section 8-42-107.2 - Selection of independent medical examiner - procedure - time - allocation of costs - 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)
(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 self-insured employer that includes an impairment rating issued in accordance with section
8-42-107
.
(B)
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.
(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, 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.
(c)
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)
(a)
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.
(b)
Upon selection of the IME, the insurance carrier shall provide to the IME and all other parties a copy of all medical records in its possession relevant 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 copies of all medical records relevant to the subject injury that the claimant 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 subsection (3)(b) shall not be construed to prohibit an independent medical examination from being rescheduled.
(c)
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.
(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.
(II)
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)
(a)
Prior to making a determination to strike a physician from the list of IME physicians provided by the division in accordance with paragraph (a) 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.
(b)
The director shall adopt rules as necessary to implement this subsection (3.5). At a minimum, the rules shall:
(I)
Require physicians to disclose the requested business, financial, employment, or advisory relationship information in a summarized format;
(II)
Detail the form and manner in which the summary disclosure is to be provided;
(III)
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
(IV)
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)
(a)
Upon receipt of the IME's report, the division has five business days to review the report and either:
(I)
Issue a notice to all parties that the division has received the IME's report; or
(II)
Notify the IME of any deficiencies in the report by letter and send copies to all parties.
(b)
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).
(c)
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)
(a)
(I)
The director shall promulgate rules consistent with this subsection (5) to determine the amount and allocation of costs to be paid by the parties for the independent medical examination.
(II)
Except as provided in subsections (5)(a)(III) and (5)(b) of this section, the requesting party shall pay the cost of an independent medical examination. The requesting party shall advance the full base cost of the independent medical examination to the IME at least ten days before the appointed time of the examination.
(III)
If there is a dispute regarding indigency or the amount or allocation of any costs to be paid, including the format, content, volume, relevance, or duplicative medical records submitted to the IME, a party may request a prehearing conference with the division to resolve the dispute. The determination of the cost allocation in excess of the full base cost must include consideration of the volume of medical records, the format and content of the IME packet, and any other considerations necessary to determine the allocation of the IME costs between the parties.
(b)
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
.
Amended by 2023 Ch. 370,§ 5, eff. 8/7/2023.
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.
2023 Ch. 370, was passed without a safety clause. See Colo. Const. art. V, § 1(3).