IN RE BACA, W.C. No. 4-457-313 (11/19/01)


IN THE MATTER OF THE CLAIM OF KAY ROTH BACA, Claimant, v. INTERWEST MEDICAL EQUIPMENT, Employer, and GREAT AMERICAN INSURANCE, Insurer, Respondents.

W.C. No. 4-457-313Industrial Claim Appeals Office.
November 19, 2001

FINAL ORDER
The claimant and the respondents petition separately for review of an order of Administrative Law Judge Felter (ALJ) which determined the claimant suffered a compensable back injury and ordered the respondents to pay medical benefits. We modify the order and, as modified affirm.

On May 15, 1996, the claimant suffered a back strain arising out of and in the course of her employment for Interwest Medical Equipment (Interwest). The respondents filed a First Report of Injury and provided medical treatment from Dr. Winberry.

The claimant voluntarily quit Interwest in September 1996, and obtained alternate employment. In 2000 the claimant was offered new employment. As part of the hiring process the claimant underwent a medical screening by Dr. Frank on March 9, 2000. Dr. Frank diagnosed a pre-existing degenerative disc disease with a history of disc herniations and imposed work restrictions. As a result of the restrictions the offer of employment was rescinded.

In April 2000, the claimant filed a claim for Workers’ Compensation benefits on account of the 1996 injury. The respondents denied liability and argued the claim was barred by the two year statute of limitations currently codified at § 8-43-103(2), C.R.S. 2001.

Expressly relying on Pinkard Construction Co. v. Schroer, 487 P.2d 610
(Colo.App. 1971), the ALJ found the respondents First Report of Injury constituted a timely claim for workers’ compensation benefits. Therefore, the ALJ determined the statute of limitations issue was “moot.”

The ALJ further found the treatment provided by Dr. Winberry was authorized and reasonably necessary to cure or relieve the effects of the compensable injury the claimant suffered on May 15, 1996. However, the ALJ found the 1996 injury was a temporary aggravation of the claimant’s pre-existing degenerative disc disease which resolved by 1997. Therefore, the ALJ awarded medical benefits consisting of the treatment provided by Dr. Winberry on on May 15, 18, 28 and June 30, 1996 and denied “any and all claims for benefits after 1997.”

I.
On review, the respondents contend the ALJ’s order is not currently subject to appeal because the ALJ did not order the respondents to pay medical expenses which had not already been paid. We disagree.

Initially we note that the claimant’s petition to review designates the “official file of the Division of Workers’ Compensation as part of the appellate record. The record transmitted to us for review apparently does not include the official file of the Division of Workers’ Compensation. However, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the claimant requested the ALJ consider the Division of Workers’ Compensation file as part of the evidentiary record for the hearing See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(7), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not considered the Division of Workers’ Compensation file.

Section 8-43-301(2), C.R.S. 2001, provides that a party dissatisfied “with an order which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty may file a petition to review.” Orders which do not either award or deny benefits or penalties are not final and not immediately reviewable. Natkin Co. v. Eubanks, 775 P.2d 88
(Colo.App. 1989). Similarly, orders which determine liability for benefits or penalties without determining the amount of benefits are not final for purposes of review. See United Parcel Service, Inc. v. Industrial Claim Appeals Office, 988 P.2d 1146 (Colo.App. 1999).

Accordingly, we have previously held that an award of medical benefits is not final and reviewable unless the record demonstrates that liability for specific medical treatment was at issue. The rationale for these decisions is that the respondents maintain the right to contest the reasonableness and necessity for particular medical benefits. E.g. Rosas v. DDC Interiors, Inc., W.C. No. 4-364-828 (August 18, 1999); Tilton v. ABC Turf Care, W.C. No. 3-105-542 (August 18, 1994).

Here, the ALJ’s order determines the respondents’ liability for specific medical treatment in an amount certain. Thus, the ALJ’s order is immediately reviewable and the fact the respondents paid the disputed benefits prior to the entry of the ALJ’s order is immaterial.

II.
The respondents also contend the ALJ misapplied the law in finding the employer’s First Report of Injury satisfied the claimant’s duty to file a notice of claim within two years of the date of the injury. We agree. However, we find no reversible error in the ALJ’s determination that the claim was timely filed.

Section 8-43-103(2) provides that a claim is barred unless filed within two years of the injury. However, the statute of limitations is tolled where the employer fails to report the injury to the division as required by § 8-43-101(1), C.R.S. 2001. See City of Englewood v. Industrial Claim Appeals Office, 954 P.2d 640 (Colo.App. 1998); Grant v. Industrial Claim Appeals Office, 740 P.2d 530 (Colo.App. 1987). Section 8-43-101(1) requires the employer to file a first report of injury where the employer has notice the claimant has contracted an occupational disease, has permanent impairment or has sustained lost time from work.

It is undisputed the employer had no notice which would trigger its duty to file a First Report of Injury. Nevertheless, the respondents filed a First Report of Injury.

However, nothing in § 8-43-101(1) allows the employer’s First Report of Injury to substitute for a notice of claim. To the contrary, if the filing of a First Report of Injury satisfied the claimant’s duty to file a claim for compensation, § 8-43-103(2) would provide that the claim is barred unless the claimant files a claim or the employer files a first report of injury within two years of the injury. However, the statute does not contain any such language and we have no authority to read such a provision into the statute. See Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000).

Furthermore, the ALJ misconstrued Pinkard Construction Co. v. Schroer, supra, as authority to the contrary. The issue in Pinkard was whether the claimant filed a notice of claim within the statute of limitations. The evidence revealed the employer filed a First Report of Injury and later a Supplemental Report of Accident. The Supplemental Report was prepared by the claimant and signed by both the claimant and the employer. The Supplemental Report identified the injury as a herniated disc in the low back which required medications and surgery. The Pinkard court determined that the Supplemental Report contained all the necessary elements of a notice of claim and because it was signed by the claimant, it constituted a sufficient notice of claim. However, nothing in Pinkard holds that the employer’s filing of a First Report of Injury obviates the claimant’s duty to file a claim for workers’ compensation.

Here, there is no evidence that Interwest’s First Report of Injury was either prepared or signed by the claimant. Accordingly, this claim is factually distinguishable from the circumstances presented in Pinkard. Thus, the ALJ erred insofar as he determined Pinkard compelled a finding that the statute of limitations issue was “moot.”

To the contrary, application of the statute of limitations is governed by the “discovery rule.” Under that rule, the statute of limitations for filing a workers’ compensation claim does not commence until the claimant knew or should have known the nature, seriousness, and probable compensable character of the injury. City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967). The requirement that the claimant recognize the “seriousness” of the injury contemplates the claimant will recognize the gravity of the medical condition. Consequently, our courts have held that where a claimant was aware of an industrial back injury, but unaware the injury might later cause a disc herniation, the claimant did not recognize the seriousness of the injury until the herniation was discovered. See City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997); Intermountain Rubber Industries v. Valdez, 688 P.2d 1133
(Colo.App. 1984).

The question of when the claimant recognized the nature, seriousness, and probable compensable nature of the injury is one of fact for determination by the ALJ. See Industrial Commission v. Canfield, 172 Colo. 18, 469 P.2d 737 (1970). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001.

Here, the ALJ determined that as a reasonable person, the claimant did not recognize the seriousness of her back condition until March 9, 2000, when Dr. Frank imposed work restrictions which precluded her from obtaining employment. The ALJ’s finding is supported by substantial evidence in the claimant’s testimony and, therefore, is binding on review. See Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). Furthermore, the ALJ’s finding supports the conclusion that the April 2000 claim for workers’ compensation was timely filed. Consequently, the ALJ correctly determined the claim is not barred by the statute of limitations and the ALJ’s erroneous conclusion concerning the effect of the employer’s First Report of Injury was harmless. Cf. Baldwin Construction Inc., v. Industrial Claim Appeals Office, 937 P.2d 895
(Colo.App. 1997) (it is proper to affirm an ALJ’s order which reaches right result for wrong reason); A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988) (error which is not prejudicial will be disregarded).

III.
The claimant contends the ALJ exceeded his authority in finding the claimant reached maximum medical improvement (MMI) for the industrial injury in 1997 and therefore, erred in denying all claims for benefits after 1997. We agree.

Where an administrative adjudication turns on issues of fact, due process requires that parties be given adequate notice of the pending adjudication in order to present evidence and argument in support of their positions. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). It is for this reason that Rule of Procedure VIII(A)(5), 7 Code Colo. Reg. 1101-3 at 21, prohibits a party from adding an “issue” after the filing of the application or response “except on agreement of all parties, or approval of an administrative law judge for good cause shown.”

Here, the only issues endorsed for adjudication were compensability, statute of limitations and medical benefits. Therefore, the claimant was denied due process of law by the ALJ’s determination of her entitlement to further benefits.

Further the ALJ implicitly determined the claimant reached MMI. This is true because § 8-40-201(11.5), C.R.S. 2001, defines MMI as:

“the point in time when any medically determinable physical or mental impairment as a result of injury has become stable and when no further treatment is reasonably expected to improve the condition.” (Emphasis added).

The ALJ’s determination that the compensable component of the claimant’s condition “resolved” by 1997 inherently reflects a determination that no further treatment was reasonably necessary to cure the injury after 1996. However, the ALJ lacked jurisdiction to make this determination.

Section 8-42-107(8)(b), C.R.S. 2001 provides that the initial determination of MMI is to be made by an authorized treating physician and if either party disputes that determination the claimant must undergo a Division-sponsored independent medical examination (DIME). Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996); Aren Design, Inc. v. Becerra, 897 P.2d 902 (Colo.App. 1995). The statute also provides that the ALJ may not hold a hearing on the issue of MMI until a DIME has been performed. See Story v. Industrial Claim Appeals Office, 910 P.2d 80
(Colo.App. 1995). It follows that once the claimant proves a causal connection between the need for treatment and the industrial injury, th duration of that causal relationship is a determination for the treating physician. See Fields v. TAD Temporaries, W.C. No. 4-185-877, (September 7, 1995). In other words, the causal connection is presumed to continue until no further treatment is “reasonably expected to improve the condition.” Lissauer v. Arapahoe House, W.C. No. 4-208-121 (November 26, 1997), aff’d, Arapahoe House v. Industrial Claim Appeals Office
(Colo.App. No. 97CA2132, July 9, 1998) (not selected for publication).

In this case, there is no assertion or finding that the statutory prerequisites for a hearing on the issue of MMI were met. Rather, the issues presented here are similar to the circumstances in Kaltenborn v. Industrial Claim Appeals Office (Colo.App. No. 97CA0174, July 31, 1997) (not selected for publication), where the court set aside our order which upheld an ALJ’s termination of temporary disability and medical benefits. The facts in Kaltenborn involved a compensable aggravation of a pre-existing condition which disabled the claimant from performing his regular employment and necessitated psychological and medical treatment. An ALJ determined that the claimant sustained a compensable industrial injury in November 1991, and was not at MMI. Relying on the results of a DIME, a second ALJ subsequently determined that the compensable injury involved a “temporary aggravation” of the preexisting condition, and that the claimant returned to his pre-injury “baseline” by July 12, 1993. Consequently, the second ALJ determined that the claimant was at MMI for the industrial injury and terminated the claimant’s entitlement to temporary disability benefits and psychological treatment effective July 12, 1993.

In Kaltenborn, the Court of Appeals construed the ALJ’s findings as a de facto determination of MMI, and concluded that, in view of the procedural posture of the case, the ALJ did not have authority to determine MMI under former § 8-42-107(8)(b), C.R.S. (1996 Cum. Supp.). Further, because the ALJ relied upon the finding that the claimant had returned to “baseline” in determining that psychological treatment after July 12, 1993 was not reasonable or necessary to cure and relieve the effects of the injury, the Kaltenborn court held that the ALJ erroneously terminated medical benefits.

We are persuaded by the court’s analysis in Kaltenborn v. Industrial Claim Appeals Office, supra, that in this matter, the ALJ erroneously determined the claimant to be at MMI. Furthermore, because the ALJ relied upon the MMI determination to terminate the claimant’s entitlement to deny all workers’ compensation benefits after 1997, we set aside that portion of the order.

IT IS THEREFORE ORDERED that the ALJ’s order dated December 12, 2000 is set aside insofar as the ALJ denied “any and all claims for benefits after 1997.” In all other respects the ALJ’s order is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky

NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.

Copies of this decision were mailed November 19, 2001 to the following parties:

Kay Roth Baca, 248 Ley Dr., LaSalle, CO 80645

Roberta Lane, Interwest Medical Equipment, 1600 E. Mulberry, #2, Ft. Collins, CO 80524

Great American Insurance, Nancy Land, Ohio Casualty Group, P. O. Box 405015, Cincinnati, OH 45240-5015

Britton Morrell, Esq., 710 11th Ave., #203, Greeley, CO 80631 (For Claimant)

Eliot J. Wiener, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)

BY: A. Pendroy