W.C. No. 4-527-878.Industrial Claim Appeals Office.
May 25, 2004.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Jones (ALJ) which granted the claimant’s petition to reopen on the grounds of “mistake” and awarded the reinstatement of temporary disability benefits. We reverse.
On January 17, 2002, the claimant suffered an admitted back injury which caused a disc herniation at L4-5. Dr. Reichhart placed the claimant at maximum medical improvement (MMI) on October 22, 2002, and opined the claimant was not a surgical candidate.
The claimant disagreed with the finding of MMI and made a self referral to Dr. Miller. Dr. Miller recommended additional diagnostic studies.
On February 4, 2003, a Division-sponsored independent medical examination (DIME) physician agreed with Dr. Reichhart that the claimant had reached MMI and was not a surgical candidate. Based upon the opinions of the DIME physician, the respondents filed a Final Admission of Liability (FAL) dated March 7, 2003, which terminated temporary disability benefits and admitted liability for permanent partial disability benefits.
On March 12, 2003, the claimant underwent surgery by Dr. Miller. In a report dated May 21, 2003, Dr. Miller reported that the surgical exam revealed a “prominent” disc herniation at L4-5 which was larger than he expected. He also opined the disc herniation was likely causing left sided radiculopathy and back pain.
On March 13, the claimant filed a written response to the FAL which accepted the DIME physician’s medical impairment rating but objected to all other respects of the FAL. However, the claimant did not file an application for hearing. Instead, the claimant petitioned to reopen the claim on May 21, 2003, and alleged the treating physicians were mutually mistaken that he was at MMI as of October 2002.
Crediting the opinions of Dr. Miller, the ALJ found the claimant proved the treating physicians were proceeding under a mutual mistake of fact about the nature of the claimant’s injury and whether there was additional medical treatment which had a reasonable prospect of improving the claimant’s condition. (Finding of Fact 10). Therefore, the ALJ reopened the claim. The ALJ also granted a change of physician and directed the respondents to reinstate temporary disability benefits retroactively.
On review, the respondents contend, inter alia, that the ALJ misapplied the law in reopening the claim on the issue of MMI. We agree.
MMI is defined as the point in time when the claimant’s condition is “stable and no further treatment is reasonably expected to improve the condition.” Section 8-40-201(11.5), C.R.S. 2003. Accordingly, the claimant is not at MMI if the claimant is willing to undergo additional treatment which has a reasonable prospect of improving his condition. See Gonzales v. Industrial Claim Appeals Office, 905 P.2d 16 (Colo.App. 1995) Reynolds v. Industrial Claim Appeals Office, 794 P.2d 1080
(Colo.App. 1990) [decided under the law prior to the enactment of § 8-40-201(11.5)].
Relying on the opinions of Dr. Miller, the claimant inherently alleged the DIME physician mistakenly placed him at MMI because there was further treatment in the form of back surgery which he was willing to undergo that had a reasonable prospect of improving his condition. It follows, the claimant was necessarily contesting the FAL and the DIME physician’s determination that he reached MMI. Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995) (claimant’s request for a change of physicians to obtain further treatment for the purpose of reaching MMI and to obtain additional temporary total disability benefits was a “constructive challenge” to the treating physician’s prior finding of MMI).
Disputes related to MMI are governed by § 8-42-107(8), C.R.S. 2003. Lobato v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA1145, June 5, 2003). With one exception that is not applicable here, § 8-42-107(8)(b), C.R.S. 2003, provides that the initial determination of MMI shall be made by an authorized treating physician. If either party disputes the accuracy of the authorized treating physician’s determination of MMI, the claimant is required to undergo a DIME. The DIME physician’s determination of MMI is then binding unless overcome by “clear and convincing evidence.” Peregoy v. Industrial Claim Appeals Office, 87 P.3d 261 (Colo.App. 2004) ; Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Where the respondents file a FAL based on the DIME physician’s finding of MMI, (see § 8-42-107.5(4), C.R.S. 2003), the case is automatically closed as to the issues admitted in the FAL unless within thirty days of the final admission, the claimant contests the FAL and requests a hearing “on any disputed issues that are ripe for hearing.” Section 8-43-203(2)(b)(II), C.R.S. 2003. Consequently, in Peregoy v. Industrial Claim Appeals Office, supra, the court held that the timely filing of an objection to the FAL and application for hearing are jurisdictional prerequisites to the ALJ’s subject matter jurisdiction to hear a dispute on MMI.
Although the claimant timely objected to the respondents’ February 7 FAL on the issue of MMI, it is undisputed the claimant did not timely file an application for hearing on the issue of MMI. Furthermore, in view of the fact that the claimant underwent surgery on March 12, 2003, there can be no reasonable argument that the issue of MMI was not ripe for adjudication on March 13, 2003, when the claimant objected to the FAL. See Chavez v. Cargill, Inc., W.C. No. 4-421-748 (November 1, 2002) (ripeness is when issue ready for adjudication without any legal impediment). Therefore, the issue of MMI was closed.
Subsection 8-43-203(2)(d), C.R.S. 2003, provides that if a “case is closed pursuant to this subsection (2), the issues closed may only be reopened pursuant to section 8-43-303.” Under § 8-43-303(1)(a), C.R.S. 2003, an ALJ may reopen an award where a preponderance of evidence proves the FAL was based on a mistake of law or fact. State Compensation Insurance Fund v. Industrial Commission, 80 Colo. 130, 249 P. 653 (1926); Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996). However, we note that § 8-43-303(1) does not require a “mutual mistake” in order to reopen a claim. Rather, mutual mistake of material fact constitutes grounds for reopening a final settlement. Esquibel v. Montgomery Ward,
W.C. No. 3-953-765 (April 18, 1995).
Because § 8-43-203(2)(d) contemplates reopening a claim based on mistake, the issue presented here is whether § 8-43-303 allows a DIME physician’s uncontested finding of MMI to be reopened based on the determination that it was mistaken as a matter of fact. We conclude that in the context of § 8-43-303(1) the term “mistake” does not include a mistake concerning the DIME physician’s finding of MMI.
In interpreting a statute, we must attempt to further the legislative intent. To discern this intent we should first give the words in the statute their plain and ordinary meanings, unless the result is absurd. Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993). Further statutes relating to the same subject matter are deemed to be in pari materia and must be construed together. McFarlen v. Eckhart, 878 P.2d 11 (Colo.App. 1993). In so doing, we must assume that the General Assembly intended the statute to effect a just and reasonable result. Bowland v. Industrial Claim Appeals Office, 984 P.2d 660 (Colo.App. 1998). Moreover, we may consider the state of the law prior to the legislative enactment, and the problem the statute was designed to solve. Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991).
The statutory language governing DIMEs is part of a comprehensive statutory scheme designed to promote “the prompt payment of compensation to an injured worker without the necessity of a formal administrative determination in cases not presenting a legitimate controversy.” Dyrkopp v. Industrial Claim Appeals Office, 30 P.3d 821, 822 (Colo.App. 2001). The DIME process itself was enacted as a method of reducing litigation concerning MMI by referring the determination of MMI to physicians, and treating a DIME physician’s findings of MMI as binding in the absence of clear and convincing evidence to the contrary. Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). In view of the statutory objective the court has refused to permit claimants to circumvent the DIME procedures for resolving a factual dispute concerning MMI. See Story v. Industrial Claim Appeals Office, supra; however see also Billea v. Industrial Claim Appeals Office ___ P.3d ___ (Colo.App. No. 02CA1895, October 23, 2003).
In contrast, the ALJ interpretation of § 8-43-303 would invite litigation on the issue of MMI by making the DIME physician’s determination of MMI subject to collateral attack under a diminished burden of proof. See AFL-CIO v. Donlon, supra.
Specifically, if § 8-43-303 is read to allow a claimant to wait until after a claim is closed to challenge the DIME physician’s opinion on MMI, the claimant could overcome the DIME physician’s finding of MMI by presenting only a preponderance of evidence that the DIME physician “mistakenly” found the claimant at MMI. At the same time the claimant could circumvent the requirement to present “clear and convincing” evidence to overcome the DIME physician’s MMI determination as required by § 8-42-107(8)(b). Thus, it is impossible to give effect to the requirements of §8-42-107(8)(b) if § 8-43-303 is read to permit the reopening of the issue of MMI based upon a determination that the DIME physician made a factual “mistake” concerning MMI.
The rules of statutory construction require that where two statutes are inconsistent and impossible to reconcile, the stattute that was enacted later in time controls. Section 2-4-206, C.R.S 2003. The DIME provisions were enacted as part of Senate Bill 91-218 (SB 218), effective July 1, 1991. The reopening statute existed long before 1991. Therefore, the requirements of § 8-42-107(8)(b) control. Consequently, we conclude that § 8-43-303 does not afford the parties the right to challenge a DIME physician’s determination on the grounds of mistake.
Our conclusions are supported by Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002), where the claimant petitioned to reopen a claim. The court concluded that the issue of MMI was closed pursuant to an uncontested FAL and therefore, held that the original MMI determination “may not be questioned.” Instead the claimant was limited to litigating whether his condition had worsened after MMI because the Act expressly gives deference to the DIME physician’s finding of MMI unless overcome. Id. at 190.
Here, the claimant failed to file a timely application for hearing to dispute the DIME physician’s determination of MMI. Consequently, the original determination of MMI may not be questioned and the ALJ lacked jurisdiction to hear the claimant’s petition to reopen based upon an alleged mistake of fact concerning MMI. Therefore, we must set aside the ALJ’s order of benefits based on the petition to reopen.
In view of our conclusions, we need not consider the respondents’ remaining arguments. Further, the respondents’ contention that the ALJ erroneously awarded additional temporary disability benefits is moot. See City and County of Denver v. Eat Out, Inc., 75 P.3d 1141 (Colo.App. 2003) (central issue in determining mootness is whether a change in the circumstances that prevailed at the beginning of litigation has forestalled the prospect for meaningful relief).
IT IS THEREFORE ORDERED that the ALJ’s order dated, December 17, 2003, is reversed and the claimant’s petition to reopen is denied.
INDUSTRIAL CLAIM APPEALS PANEL
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David Cain
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Kathy E. Dean
Randy Berg, Denver, CO, Alissa Hall, United Parcel Services, City, CO, Sandi Goldberg, Liberty Mutual Group, Irving, TX, John A. Sbarbaro, Esq., Denver, CO., for Claimant.
Jonathan S. Robbins, Esq., Denver, CO, for Respondents.