dissenting.
I agree with the majority that the phrase "conflict of interest" is a term of art that must be understood in light of its use and the context to which it is applied. See maj. op. at 1055-56. However, the majority reads Rule 11-2(H) ("the Rule") far too narrowly and divorces the Rule both from those statutes it has been crafted to implement and from the other administrative rules with which it operates. In my view, the IME physician's substantial financial relationship with the claimant's insurer in this case-amounting to 25% of his business and totaling over $100,000-is sufficient to establish an apparent conflict of interest. Because I believe that the majority's analysis unnecessarily narrows normal conceptions of conflicts of interest and renders parts of the legislature's enactment without meaningful effect, I respectfully dissent.
After discovering that the IME physician in this case received roughly 25% of his income from Pinnacol-paid cases and had an ongoing consulting position with the insurance company, Ruff moved to disqualify him-not as laboring under an actual conflict of interest-but rather as "axiomatically" barred due to an apparent conflict of interest. Reviewing the motion, the ALJ noted that the IME physician "credibly testified" to his ability to dispassionately review Ruff's claim in spite of his relationship with the insurance provider, and so denied Ruff's motion.
The court of appeals' decision to remand the case to the ALJ for a determination as to the IME physician's apparent conflict was the only rational one: the physician's eredi-ble testimony as to his own actual neutrality cannot by itself overcome an alleged apparent conflict. Rather, apparent conflicts should be measured, at least in part, by objective indicia chosen not only to protect against biased medical examinations, but also to establish a process for workers' compensation determinations that seems fair to those that will be governed by it, and that helps "maintain the public's confidence in the integrity" of the process. Crandon v. United States, 494 U.S. 152, 165, 110 S.Ct. 997, 108 L.Ed.2d 132 (1990) (describing the value of regulating apparent and potential conflicts of interest even where no harm or bias has resulted).1 Throughout its opinion, however, the majority's focus rests squarely on actual conflicts of interest; the majority only peripherally mentions Rule 11-2(H)'s proscription of apparent conflicts. As such, *1059the majority subtly recasts the dispute as a challenge to the IME physician's ability to be actually independent and, in so doing, the majority reduces the Rule's contemplation of apparent conflicts to little more than a rhetorical flourish.
Ultimately, the majority's decision makes little sense in light of the statutory scheme or the surrounding structure of administrative rules. For example, pursuant to its authority under section 8-42-101(8.5)(a)(II), C.R.S. (2009), the director promulgated a suite of "medical treatment guidelines and utilization standards," including rules addressing conflict issues not only in the context of independent medical examiners, Rule 11-2(H), but concerning utilization review committee members as well. See Division of Workers' Compensation Rule of Procedure 10-5(E), 7 Code Colo. Regs. 1101-3; see also Colo. Comp. Ins. Auth. v. Nofio, 886 P.2d 714, 716-17 (Colo.1994) (discussing medical utilization review). The two rules' descriptions of cognizable conflicts are nearly identical, compare Rule with Rule 11-2(H)(1)-(8), and both explicitly state they are to be read only as guidelines-not as limiting language-for the assessment of alleged conflicts. Despite their similarities, though, the two rules have one important difference: Rule 11-2(H) considers it inappropriate for independent medical examiners to labor under apparent conflicts, while Rule 10-5(E) only concerns itself with the actual conflicts of utilization committee members.
The imposition of stricter conflict guidelines for IME physicians over utilization committee members both makes sense as a practical matter and is supported by pertinent statutory provisions. Utilization committee members review medical procedures and make recommendations based on a majority vote of a multi-member panel, see, e.g., Rule 10-6 (Composition of Utilization Review Committees), while the recommendation of a single medical examiner de facto resolves a maximum medical improvement dispute. The findings of an IME physician are all but dispositive as they can be overcome only by clear and convincing evidence. § 8-42-107(8)(b)(II1), (c), C.R.S. (2009). As such, it is reasonable to treat conflict concerns differently in the different contexts. More than reasonable, though, this distinction is supported by the respective statutes. The statutory scheme requires medical examiners to be "independent," while no such mandate is made for utilization committee members. Additionally, the General Assembly took pains to lay out a process for their selection that will appear balanced and fair. § 8-42-107.2, C.R.S. (2009).
By focusing on whether the IME physician in this case had been or was reasonably likely to be biased by his relationship with Pinnacol, see maj. op. at 1055-56, 1057-58, the majority leaves hollow and meaningless the Rule's mention of apparent conflicts and so removes all means by which alleged conflicts under the two rules would be analyzed differently. Perhaps even more remarkably, the majority claims that " 'independent medical examination' implies nothing more than a new examination by a different physician." Maj. op. at 1056. Such a conception reduces the independent medical exam to but a "see-ond opinion" and is woefully inconsistent with the statutory framework that takes care to ensure that the election of an IME physician preserves the physician's independence. CJ. § 8-42-107.2. As such, the majority's overarching emphasis on actual conflicts of interest here sidesteps the issues presented to us for review and ultimately lies at odds with the statutory scheme itself.
Even putting aside its framing of the issues, though, the majority's construction of Rule 11-2(H) in many ways contravenes a natural reading of the Rule. At every turn, Rule 11-2(8H) indicates that its text is intended as illustrative and is meant to guide assessments of conflicts rather than to constrain them. The Rule notes that a conflict "includes, but is not limited to" instances where the physician or someone in her office has treated the claimant and "further" that a conflict may be presumed when the IME physician has a direct or substantial financial relationship with a physician that previously treated the claimant. Thereafter, the Rule delineates "guidelines" to "assist in determination of conflict or appearance of a conflict."
The Rule's language notwithstanding, Pin-nacol argues strenuously that the Rule con*1060templates only those financial conflicts as between an IME physician and the previously-treating physician. Although the majority stops short of firmly drawing that line, it leaves little room for other conflicts to exist at the Rule's "outer limits." Maj. op. at 1055-56. The majority describes the Rule as dealing expressly only with situations involving the prior treatment of a claimant, and so construes the Rule's guidelines as but "cautionary clarifications" regarding such situations. Maj. op. at 1054-55. Even more tellingly, the majority notes that the Rule does not "suggest" what other kinds of financial relationships might also create a conflict and so concludes that the Rule does not extend to the factual situation at hand. Maj. op. at 1055.
Such a reading renders the phrase "conflict of interest" wholly unrecognizable. Even the IME physician's own testimony before the ALJ in this case is in tension with the majority's construction. As the majority itself notes, see maj. op. at 1052-53, the IME physician indicated there that he would voluntarily disqualify himself in cases where the prior treating physician was employed by Concentra, because he received roughly 60% of his business from Concentra referrals and would fear angering a major source of referrals by disagreeing with a treating physician. From his comments, it seems the IME physician would-I think rightly-eonsider a substantial financial relationship with the previous physician's employer to create a conflict of interest, even if he had no relationship whatsoever with the treating physician himself. Despite the physician's cogent exposition of the very real concern that indirect financial ties with parties other than the pri- or treating physician may inject bias into a medical assessment, the majority hints that it would not consider such relationships to be problematic under its construction of the Rule. The majority's primary concern is the job titles of those persons in the alleged conflict rather than whether the nature of their relationship poses a threat to the integ-
rity of the proceedings.2 Even reading the majority's opinion generously as allowing for some other limited cireumstances in which an IME physician's financial relationships with parties other than the prior treating physi-clan could be grounds for a disqualifying conflict, the majority fails to explain why a 25% share of a physician's business-totaling over $100,000-should be considered "hardly substantial" here, maj. op. at 1055-56, especially when the IME physician himself would consider a 60% share to create an actual-not just apparent-conflict of interest.
Finally, because I read the statute's mandate that an IME physician be "independent" to establish statutory due process protections beyond those found in the Constitution's Due Process Clause, I believe it is unnecessary to resort to sweeping due process principles as the majority does. See Caperton, -- U.S. at --, 129 S.Ct. at 2267. Rather, I would hold that the Rule sets forth guidelines for the normal, objective assessment of apparent conflicts of interest. The ALJ, like the majority in its opinion, gave no meaningful ef-feet to the Rule's prohibition against apparent conflicts or the statute's mandate that an IME physician be independent. As such, I would affirm the court of appeals' opinion.
For the foregoing reasons, I respectfully dissent.
I am authorized to state that Justice BENDER joins in this dissent.
. Indeed, even when considering the "constitutional floor'" established by the Due Process Clause, maj. op. at 1057, assessments of actual bias are based on objective inquiries rather than findings concerning the subjective mental state of a challenged tribunal officer. See Caperton v. A.T. Massey Coal Co., - U.S. --, --, 129 S.Ct. 2252, 2262, 173 L.Ed.2d 1208 (2009).
. Contrary to the majority's assertions, I would hold that any interpretation of Rule 11-2(H) that obliterates conflicts beyond those between the IME physician and the prior treating physician are plainly erroneous and entitled to no weight in our review. Cf. Jiminez v. ICAO, 51 P34 1090, 1093 (Colo.App.2002).