W.C. No. 4-514-998Industrial Claim Appeals Office.
July 1, 2003
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ Friend) insofar as it ordered them to pay permanent partial disability benefits based on the medical impairment rating issued by the treating physician. The respondents argue ALJ Friend was collaterally estopped from determining that their notice and proposal to select a Division-sponsored independent medical examination (DIME) physician was not timely mailed. The claimant challenges the ALJ’s refusal to impose penalties for the respondents’ filing of an allegedly improper final admission and the failure to pay interest on benefits. We affirm.
I.
Because the appeals of the parties are largely unrelated, we review them separately. We first consider the respondents’ appeal.
The claimant sustained compensable injuries in March 2001. On July 16, 2001, a treating physician placed the claimant at maximum medical improvement (MMI) and assigned a 19 percent whole person medical impairment rating. Subsequently, the claimant underwent a DIME on the issue of medical impairment. The DIME was conducted in November 2001, and the DIME physician assessed a 12 percent whole person rating.
On December 18, 2001, a hearing was held before ALJ Coughlin. Insofar as pertinent, ALJ Coughlin described the issues as penalties, permanent partial disability, and post-MMI medical benefits. She noted the claimant argued the respondents were bound by the 19 percent rating of the treating physician because they failed timely to mail the notice and proposal to select the DIME physician. The respondents argued they timely requested the DIME and were awaiting the DIME physician’s report and impairment rating. Similarly, the claimant’s request for penalties was based on the contention that the respondents’ notice and proposal to select the DIME physician violated the provisions of § 8-42- 107.2(2)(a)(I)(B), C.R.S. 2002, and § 8-42-107.2(b), C.R.S. 2002, because it was not mailed within 30 days of the insurer’s receipt of the treating physician’s impairment rating.
In a Corrected Order dated February 11, 2002, ALJ Coughlin found the respondent insurer received a written copy of the treating physician’s impairment rating on August 2, 2001. Although there was documentary evidence that the respondents’ request for a DIME was mailed on or about August 1, 2001 (one day before the report was found to have been received), ALJ Coughlin found the request was probably mailed on August 21, 2001, or later, and the respondents failed to establish a “credible date” of mailing. (Finding of Fact 19). ALJ Coughlin further found the record was insufficient to establish a credible date of mailing of the respondents’ request for a DIME. (Finding of Fact 30).
Under these circumstances the ALJ concluded the claimant failed to prove a violation of § 8-42-107.2 and denied the request for the imposition of penalties on the respondents. (Finding of Fact 30, Conclusion of Law 11). Conversely, the ALJ declined to reach the issues of permanent disability, MMI, and post-MMI medical benefits “given the pendency of the Division IME.”
On September 13, 2002, the matter proceeded to hearing before ALJ Friend concerning the claimant’s entitlement to permanent disability benefits. The claimant again took the position the respondents’ notice and proposal to select a DIME physician was not timely mailed, and argued the treating physician’s rating is binding. The respondents argued by motion and at the commencement of the hearing that ALJ Coughlin had resolved the timeliness issue in their favor because she ruled the DIME was “pending” at the time of the December 18 hearing. Thus, the respondents contended ALJ Friend was estopped from redetermining the timeliness issue.
ALJ Friend opined that ALJ Coughlin’s order was “ambiguous” concerning the timeliness of the respondents’ DIME request. However, citing Finding of Fact 30 of the Corrected Order, ALJ Friend concluded that ALJ Coughlin made no finding concerning the decisive issue of when the respondents mailed the notice and proposal to select a DIME physician. Consequently, ALJ Friend concluded he was not estopped from determining the disputed factual issue. (Tr. Pp. 20-22).
On December 12, 2002, ALJ Friend found, based on Division of Workers’ Compensation (DOWC) records, that the DOWC received the respondents’ notice and proposal to select the DIME physician on September 13, 2001. From this fact ALJ Friend inferred the notice and proposal could not have been mailed before September 5, 2001, more than 30 days after August 2, the date the insurer received the treating physician’s written rating. (Finding of Fact 7, Conclusion of Law 12). Thus, ALJ Friend concluded that the treating physician’s impairment rating is binding because there was no timely request for a DIME under § 8-42-107.2(2)(b).
On review, the respondents again contend that ALJ Coughlin determined their notice and proposal to select the DIME physician was timely filed, and that the principle of collateral estoppel, or issue preclusion, disqualified ALJ Friend from reconsidering this question. The respondents reason that the claimant sought penalties before ALJ Coughlin based on the respondents’ alleged violation of § 8-42-107.2(2)(b). However, ALJ Coughlin denied the request for penalties. Moreover, the respondents point out that ALJ Coughlin failed to rule on the claim for permanent partial disability benefits because the DIME was “pending.” The respondents assert this finding is tantamount to a finding that the request for the DIME was timely mailed. We are not persuaded.
The doctrine of collateral estoppel precludes relitigation of an issue decided in a prior proceeding if the issue is identical to an issue actually litigated and necessarily adjudicated in the prior proceeding; the party against whom estoppel is asserted was a party to or was in privity with a party to the prior proceeding; there was a final judgment on the merits in the former proceeding; and the party against whom estoppel is to be applied had a full and fair opportunity to litigate the issue in the prior proceeding. M M Management Co. v. Industrial Claim Appeals Office, 979 P.2d 574 (Colo.App. 1998). An issue is “necessarily adjudicated” if it is essential to the judgment entered. This requirement exists because courts may not take sufficient care in resolving issues which are peripheral to disposition of the case. Bebo Construction Co. v. Mattox O’Brien, P.C., 990 P.2d 78, 86 (Colo. 1999).
The respondents’ argument notwithstanding, the issue of whether the respondents timely filed the notice and proposal was not “necessarily adjudicated” by ALJ Coughlin. The claimant sought a penalty because the respondents allegedly failed to mail the notice and proposal within thirty days of receiving the treating physician’s rating, as required by § 8-42-107.2(2)(b). Because the claimant was the party seeking to impose the penalty the claimant bore the burden of proof to demonstrate that the respondents violated the statute. Allison v. Industrial Claim Appeals Office, 916 P.2d 623 (Colo.App. 1995) (to impose penalty record must show violation of the Act); Lori’s Family Dining, Inc. v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo.App. 1995) (burden of proof was on employer where it sought imposition of a penalty based on claimant’s alleged violation of a safety rule).
ALJ Coughlin ruled the evidence was insufficient to establish the date on which the respondents mailed the notice and proposal. Consequently, ALJ Coughlin denied the request for penalties because the claimant failed to carry his burden of proof to establish that the respondents’ request for a DIME was untimely under § 8-42-107.2(2)(b). (Corrected Order, Finding of Fact 30). ALJ Coughlin’s conclusion that the claimant failed to meet the burden of proof was sufficient to resolve the penalty claim without determining the actual date when the respondents mailed the notice and proposal. Indeed, ALJ Coughlin suggested a range of dates when the notice and proposal might have been mailed. (Corrected Order, Findings of Fact 19 and 30). Thus, determination of the actual date of mailing was not necessarily adjudicated by ALJ Coughlin when resolving the claimant’s request for a penalty.
Neither does ALJ Coughlin’s statement that the DIME was “pending” amount to a finding that the respondents timely mailed the notice and proposal. First, ALJ Coughlin expressly declined to make any finding concerning the date that the notice and proposal was mailed. Instead, she stated the evidence was insufficient to determine the date of mailing. Further, because the respondents were seeking to establish the primacy of the DIME physician’s rating and invalidate the rating of the treating physician, the respondents had the burden of proof to establish the statutory prerequisites to a valid DIME, including a timely request therefor. See Cowin Co. v . Medina, 860 P.2d 535 (Colo.App. 1992) (burden of proof typically assigned to party asserting the affirmative of a proposition, therefore consideration should be given to which party would prevail if no evidence is presented, and the burden assigned to the opposing party). Here, ALJ Coughlin found the respondents failed to prove that a timely notice and proposal was made. (Corrected Order, Finding of Fact 19). Hence, ALJ Coughlin’s order contains no definitive factual determination of when the notice and proposal was filed, and such a determination was not necessary to resolve the issues before her.
In the absence of such a finding, and in light of the fact that the DIME had already occurred when ALJ Coughlin entered the Corrected Order, it was logical for ALJ Coughlin to defer determination of the permanent disability issue until a later hearing. If, in a later proceeding, an ALJ determined that the respondents timely mailed the notice and proposal, that ALJ could proceed to adjudicate the issue of permanent disability based on the DIME physician’s finding of impairment. Conversely, if a subsequent ALJ determined the notice and proposal was not timely, the ALJ could award permanent disability benefits based on the treating physician’s rating. Thus, ALJ Coughlin’s statement that the issue of permanent disability would not be decided because the DIME was “pending” does not amount to a finding that the respondents timely filed the notice and proposal. Rather, the statement appears to be a concession to practical considerations stemming from the procedural posture of the case.
It follows from this discussion that ALJ Friend was free to determine the date on which the respondents notice and proposal was mailed, and the doctrine of collateral estoppel did not preclude him from doing so. The respondents do not challenge the sufficiency of the evidence to establish that the notice and proposal was not timely mailed. Hence, ALJ Friend correctly ruled the impairment rating of the treating physician is binding on the parties. Section 8-42-107.2(2)(b).
II.
The claimant petitioned to review the ALJ’s order insofar as the ALJ denied requests for the imposition of penalties. The claimant’s petition to review cites only general allegations of error concerning the correctness of the ALJ’s legal conclusions on the issue of penalties. (Claimant’s Petition to Review P. 2). The claimant did not filed a brief in support of the petition to review. Although filing of a brief is not a jurisdictional prerequisite to consideration of an appeal, the failure to file one substantially limits the effectiveness of our review. See Rule of Procedure VII (D)(2)(c), 7 Code Colo. Reg. 1101-3 at 19 (brief should contain statement of issues, rationale for arguments, citations to authority, and appropriate references to the record); Frazier v. Industrial Claim Appeals Office, (Colo.App. No. 01CA1390, February 28, 2002) (not selected for publication), citing Raygor v. Board of County Commissioners, 21 P.3d 432, 439 (Colo.App. 2000) (reviewing court need not search record for evidence to support an appealing party’s assertions, nor to locate legal authority to support arguments).
The claimant contended that the respondents filing of a final admission of liability dated March 7, 2002, violated Rule of Procedure IV(N)(1), 7 Code Colo. Reg. 1101-3 at 7.01, by limiting post-MMI medical care and failing to admit for disfigurement benefits. However, the ALJ denied the request for penalties because he found no violation of the rule. See Allison v. Industrial Claim Appeals Office, supra (party seeking penalty under § 8-43-304(1), C.R.S. 2002 must show violation of statute or rule).
We perceive no error in the ALJ’s order. In our view, the ALJ correctly ruled that the respondents’ admission for post-MMI medical benefits in accordance with the recommendations of the DIME physician constituted a general admission for such benefits, not an improper attempt to limit them. See Hanna v. Print Expediters, Inc., __ P.3d __ (Colo.App. No. 02CA2237, June 5, 2003) (where need for post-MMI treatment is established, claimant is entitled to a general award subject to the respondents’ right to contest reasonableness and necessity for specific treatments). Thus, we agree with the ALJ there is no evidence that the respondents violated the rule, which requires the insurer to specify and describe the insurance carrier’s position on the provision of medical benefits after MMI.
Rule IV(N) makes no reference to disfigurement benefits. Further, the ALJ found the claimant made no claim that he had disfigurement when the final admission was filed. Thus, we perceive no basis for imposing penalties based on the respondents’ failure to admit for disfigurement. In any event, if the claimant believed he was entitled to disfigurement benefits, he was not precluded from objecting to the final admission and claiming them.
The claimant also contends the respondents failed to admit for interest based on the temporary disability benefits awarded by ALJ Coughlin. However, ALJ Coughlin found only that the claimant missed five and one half hours of work. She did not specify which hours, nor did she award temporary disability benefits for specific times. Thus, we agree with the ALJ Friend that ALJ Coughlin’s order did not fix a time for payment of temporary disability benefits in accordance with § 8-43-410(2), C.R.S. 2002. Subsequent Injury Fund v. Industrial Claim Appeals Office, 899 P.2d 220 (Colo.App. 1994) (interest runs from date fixed in the order for payment of benefits). Consequently, ALJ Friend correctly ruled there is no basis for assessing a penalty based on the violation of the interest statute. Similarly, ALJ Friend correctly noted that Rule of Procedure IV(E), 7 Code Colo. Reg. 1101-3 at 5, does not address the payment of interest, and affords no basis for the imposition of penalties.
In the absence of more definitive argument by the claimant, we see no basis for interfering with the order on penalties.
IT IS THEREFORE ORDERED that ALJ Friend’s order dated December 2, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
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. 2002. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed July 1, 2003 to the following parties:
Ahmed Bekkouche, 13314 W. 138th Terrace, Overland Park, KS 66221
Riviera Electric, 5001 S. Zuni, Littleton, CO 80120
Riviera Electric, c/o Encompass, 5541 Central Ave., Boulder, CO 80301
American Casualty Company of Reading, c/o Kimberly Dick, RSKCo, P. O. Box 5408, Denver, CO 80217-5408
IME Coordinator, Tower 2, #640, Division of Workers’ Compensation — Interagency Mail Chris L. Ingold, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For Claimant)
Gregory K. Chambers, Esq. and C. Sandra Pyun, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondents)
By: A. Hurtado