W.C. No. 4-224-869Industrial Claim Appeals Office.
August 16, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Wheelock (ALJ) which reopened the claim and awarded additional temporary disability and medical benefits. We affirm.
The pertinent facts are undisputed. In 1994, the claimant suffered an admitted cervical injury. The claim was closed pursuant to the filing of a Final Admission of Liability dated December 4, 1998. In late July 2000, the claimant’s condition from the industrial injury worsened. As a result the claimant sought additional treatment including physical therapy. On January 8, 2001, the claimant was injured in a motor vehicle accident while returning from authorized physical therapy for the industrial injury. Commencing July 31, 2000, the claimant was physically unable to perform her regular employment.
Under these circumstances, the ALJ reopened the claim. The ALJ ordered the respondents to pay temporary total disability benefits commencing July 31, 2000, and medical expenses reasonable and necessary to treat the effects of the original injury and injuries sustained in the January 8 motor vehicle accident.
On review the respondents do not dispute the order reopening the claim. Neither do the respondents dispute the awards of temporary total disability and medical benefits related to the original injury. Instead, the respondents sole argument is that the ALJ erred insofar as she awarded workers’ compensation benefits on account of the January 8 motor vehicle accident in this claim. Relying on Employers Fire Insurance Company v. Lumbermen’s Mutual Casualty Company, 964 P.2d 591 (Colo.App. 1998), and our conclusions in Fisher-Muck v. Interim Healthcare of Southeastern Colorado, W.C. No. 4-113-829 (January 31, 2000), the respondents argue that if the effects of the January 8 motor vehicle accident are compensable under the “quasi-course of employment doctrine,” the injuries give rise to a second claim. Therefore, they argue the ALJ lacked “jurisdiction” to compensate the January 8 injuries as a compensable consequence of the 1994 injury. We conclude the respondents’ argument was waived.
Initially, we note that the issue is not one of “jurisdiction.” Subject matter jurisdiction “relates to the power or authority of the court to deal with a particular case.” Sanchez v. Straight Creek Constructors, 41 Colo. App. 19, 580 P.2d 827 (1978). The ALJ has subject matter jurisdiction to resolve disputes arising under the Workers’ Compensation Act. See § 8-43-201 C.R.S. 2000. Section 8-43-303
C.R.S. 2000 allows an ALJ to reopen a claim due to a change of condition. A “change in condition” refers to a change which is causally connected to the original compensable injury. Chavez v. Industrial Commission, 714 P.2d 1328 (Colo.App. 1985). Thus, where the claimant requests additional benefits based upon a worsening of condition, the ALJ has jurisdiction to determine the cause of the worsening and to award compensation for natural and proximate consequences of the original injury. See Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622
(1970). As applied here, the ALJ had the statutory power and, hence, the jurisdiction to decide whether the January 8 injuries were a compensable consequence of the 1994 injury.
The respondents’ argument that the effects of the January 8 motor vehicle accident are not compensable in this claim was not raised before the ALJ. Consequently, the argument was waived and may not be asserted for the first time on appeal. (Tr. p. 3); Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994); Monolith Portland Cement v. Burak, 772 P.2d 688 (Colo.App. 1989).
In reaching this conclusion we recognize that the respondents’ Petition to Review alleges they had no notice of the potential causal relation between the original injury and the motor vehicle accident until the hearing. Therefore, the respondents alleged the ALJ’s order which awarded workers’ compensation benefits on account of the motor vehicle accident in this claim was a denial of due process. However, the respondents did not address this contention in their Brief in Support of the Petition for Review and we infer they abandoned the argument.
In any case, at no time during the hearing did the respondents object to the claimant’s testimony concerning the January 8 injuries. Neither did the respondents request a continuance to “investigate the circumstances” of the accident. (See Tr. pp. 22-27). As a result, the issue of whether the January 8 injuries are a compensable consequence of the 1994 injury was tried by consent. See Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987) (failure to object was waiver of objection to litigation of issue). Consequently, we are not persuaded the respondents due process rights were implicated.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 28, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
An action to modify or vacate this Order may be 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. 2000. 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 August 16, 2001 to the following parties:
Kathy Bening, 14695 City Highway 4, Okawville, IL 62271
Kim Zumwalt, Continental Airlines, P. O. Box 4607, AGC-1188, Houston, TX 77210-4607
Cambridge, Cheri McCann, Gallagher Bassett Services, Inc., 6504 International Park, #2100, Plano, TX 75093
Anthony L. Sokolow, Esq., 628 N. Weber St., Colorado Springs, CO 80903-1014 (For Claimant)
Michael A. Perales, Esq. and Richard W. Pruett, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)
BY: A. Pendroy