W.C. No. 4-486-911Industrial Claim Appeals Office.
May 12, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Muramoto (ALJ Muramoto) insofar as it granted the respondents’ motion for summary judgment concerning the claimant’s request for the imposition of penalties. The claimant also seeks review of an order of Administrative Law Judge Henk (ALJ Henk) to the extent ALJ Henk concluded the finding of a Division-sponsored independent medical examination (DIME) physician was not binding on the question of whether the claimant suffered a scheduled or whole person impairment. The respondents seek review of ALJ Henk’s conclusion that the issue of permanent partial disability (PPD) was not closed by the claimant’s failure to request a hearing on the issue within thirty days of a final admission of liability (FAL). We dismiss the claimant’s appeal from ALJ Muramoto’s order and affirm ALJ Henk’s order.
This case has a complex procedural history. The claimant sustained a compensable injury to his right shoulder on December 26, 2000. On February 5, 2002, a treating physician placed the claimant at maximum medical improvement with a 14 percent impairment of the right upper extremity. The respondents then filed an undated FAL admitting for PPD based on the scheduled rating.
The claimant requested a DIME on the issue of the impairment rating, and also requested the DIME physician to address the question of whether the claimant should receive a scheduled or whole person impairment rating. On June 11, 2002, the DIME physician issued a report stating the claimant sustained an 18 percent impairment of the right upper extremity, which converts to an 11 percent whole person impairment. The DIME physician also opined the claimant should receive a whole person impairment rating because the injury was to the AC joint which is “located above the arm.”
On June 18, 2002, the respondents filed an amended FAL admitting for PPD benefits based on the DIME physician’s 18 percent scheduled impairment rating. The claimant timely objected to the FAL and filed an application for hearing on July 16, 2002. The application for hearing listed the issues as temporary disability benefits and penalties. The penalty issue is described as penalties under § 8-43-304, C.R.S. 2002, based on the respondents’ failure to admit for or contest the whole person impairment rating assigned by the DIME physician, and the respondents’ failure to pay the $10,000 lump sum which the claimant requested pursuant to § 8-42-107(8), C.R.S. 2002. A hearing was scheduled for October 29, 2002.
On August 27, 2002, the respondents filed a “Motion for Summary Judgment on the Issue of Penalties and to Strike the Issue of Penalties From Hearing.” The respondents’ motion argues the determination of whether the claimant sustained a scheduled impairment or a whole person impairment is one of fact for an ALJ, and the issue is not subject to the DIME process. Therefore, the respondents reasoned they violated no provision of the Act by refusing to admit for the DIME physician’s whole person rating, and as a matter of law no penalties could be imposed. The respondents requested the entry of “summary judgment” on the issue of penalties, and that the issue of penalties be stricken from the application for hearing. The claimant responded that the issue of scheduled versus whole person impairment is subject to the DIME process, and that the respondents violated § 8-42-107.2(4), C.R.S. 2002, because they neither admitted for the DIME physician’s whole person rating, nor requested a hearing to challenge the rating within 30 days of the DIME physician’s report. The claimant requested an order of summary judgment barring the respondents from contesting the DIME physician’s whole person rating. On September 10, 2002, ALJ Muramoto entered an order granting the respondents’ motion for summary judgment and to strike the issue of penalties, and denying the claimant’s motion for summary judgment.
Subsequently, the claimant requested to amend the application for hearing to include the issue of PPD benefits. On October 11, 2002, a prehearing-ALJ (PALJ) granted the motion, noting the issue of PPD had been left off the application by mistake.
On October 18, 2002, the respondents filed a “Motion to Strike the Issue of Permanency.” This motion argued that because the claimant did not apply for a hearing on the issue of PPD within 30 days of the June 18 FAL, the issue was closed by operation of § 8-43-203(2)(b)(II), C.R.S. 2002. ALJ Henk denied this motion by order dated October 24, 2002.
A hearing was held on October 29 concerning the claimant’s entitlement to PPD benefits. ALJ Henk received documentary evidence, the testimony of the claimant, and the testimony of the DIME physician. In an order dated November 26, 2002, ALJ Henk found the claimant proved his entitlement to a whole person impairment rating. In support, the ALJ found the claimant sustained functional impairment proximal to the glenohumeral joint, and credited the DIME physician’s testimony that the claimant has damage to the AC joint, which is “above the arm.” The ALJ also credited the claimant’s testimony that the shoulder injury causes pain in the shoulder blade and in the area between the shoulder and the neck. Further, the ALJ found the claimant has difficulty with overhead lifting, as when he attempts to lift the hood of a car.
On December 17, 2002, the claimant filed a petition to review the September 10 order of ALJ Muramoto and the November 26 order of ALJ Henk. The respondents petitioned to review ALJ Henk’s November 26 order.
I.
On review, the claimant first contends ALJ Muramoto erred in granting the respondents’ motion for summary judgment on the issue of penalties. The claimant reiterates the argument that the issue of whether the claimant suffered a scheduled or whole person impairment is subject to the DIME process, at least if the DIME occurs before the hearing. The respondents argue, inter alia, that the claimant failed to file a timely petition to review ALJ Muramoto’s order. We agree with the respondents and dismiss the claimant’s appeal insofar as it pertains to ALJ Muramoto’s order.
Section 8-43-301(2), C.R.S. 2002, provides that a petition to review an ALJ’s order shall be filed within 20 days of the date of the certificate of mailing of the order, or the order becomes final. This requirement is jurisdictional and must be strictly enforced. Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo.App. 1991).
The question of whether an order or portion of an order is interlocutory or immediately appealable is governed by § 8-43-301(2). See Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680
(Colo.App. 1999). An order which denies the “claimant any benefit or penalty” is one subject to immediate review under § 8-43-301(2). BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533
(Colo.App. 1997).
Here, ALJ Muramoto’s order determined the respondents did not violate any provision of the Act by failing to admit for the DIME physician’s whole person rating or by failing to contest the rating within 30 days, or by failing to pay the lump sum. Therefore, the ALJ granted “summary judgment” in favor of the respondents and against the claimant on the request for penalties. The only plausible interpretation of this order is that it denied the claimant’s request for penalties as a matter of law. Therefore, the claimant was required to contest the order within 20 days by filing a petition to review, or the order would become final under § 8-43-301(2). Because the claimant did not file a timely petition to review, the claimant’s appeal of ALJ Muramoto’s order must be dismissed.
We are aware ALJ Muramoto’s order “struck” the issue of penalties with respect to the hearing scheduled for October 29. However, this was incidental to and a logical consequence of the substantive ruling which denied the claim for penalties. Thus, striking the issue of penalties did not change the character of the order from one denying a claim for penalties to an interlocutory procedural order.
II.
Citing § 8-43-203(2)(b)(II), the respondents contend ALJ Henk erred in ruling the issue of PPD benefits was not closed because the claimant failed to request a hearing on the issue within 30 days of the FAL dated June 18, 2002. The respondents argue the claimant did not file an application for hearing on the issue of PPD until the PALJ added the issue in October 2002. We disagree.
Section 8-43-203(2)(b)(II) provides that:
[T]he case will be automatically closed as to the issues admitted in the final admission if the claimant does not, within thirty days after the date of the final admission, contest the final admission in writing and request a hearing on any disputed issues that are ripe for hearing . . . .
Once an issue is closed under this statute, it may only be reopened under the provisions of § 8-43-303, C.R.S. 2002. Section 8-43-203(2)(d), C.R.S. 2002; Cordova v. Industrial Claim Appeals Office, 55 P.3d 186
(Colo.App. 2002).
Here, we agree with the claimant that the application for hearing filed on July 16, 2002, was sufficient to raise the issue of PPD for purposes of preserving the issue under § 8-43-203(2)(b)(II). The purpose of the requirement to request a hearing on disputed issues which are ripe for hearing within thirty days of the FAL is to encourage prompt adjudication of issues where there is a legitimate controversy, and close claims without litigation where there is no legitimate dispute. See Dyrkopp v. Industrial Claim Appeals Office, 30 P.3d 821 (Colo.App. 2001); Peregoy v. United Parcel Service, W.C. No. 4-427-814 (February 28, 2003); Chavez v. Cargill, Inc., W.C. No. 4-421-748 (November 1, 2002).
Here, the claimant’s application for hearing implicitly contested the respondents’ FAL with respect to the admission for PPD benefits based on the 18 percent scheduled rating. In fact, the claimant asserted the respondents were legally obligated to admit for the DIME physician’s 11 percent whole person impairment rating and should be penalized because they failed to do so. Moreover, the application for hearing argued the respondents should be penalized for failing to pay the $10,000 lump sum which § 8-42-107(8)(d), C.R.S. 2002, mandates in the case of awards for whole person medical impairment benefits. Inherent in both of these arguments is the claimant’s position that, contrary to the FAL, he was entitled to whole person benefits as a matter of law.
Under these circumstances, the application for hearing was sufficient to notify the respondents that the claimant disputed the admission for the scheduled impairment rating and was seeking PPD based on the DIME physician’s whole person impairment rating. The fact that the claimant could have been more precise when completing the application for hearing does not, under the circumstances present here, support the conclusion that the issue of PPD was not raised in the application. Cf. Pacesetter Corp. v. Collett, 33 P.3d 1230 (Colo.App. 2001) (issue of partial withdrawal of admission of liability was encompassed in the larger issue of whether the admission was invalid from the date of filing).
In any event, we note the June 18 FAL filed by the respondents does not comply with the notice requirements contained in § 8-43-203(2)(b)(II). In fact, the “Notice to Claimant” contained in the FAL recites the statutory requirements as they existed before the 1998 revision of the statute. 1998 Colo. Sess. Laws, ch. 313 at 1431. Consequently, the notice incorrectly states the claimant has sixty days to dispute the FAL, and fails to mention the requirement that the claimant request a hearing on disputed issues ripe for hearing within 30 days of the FAL. Consequently, the FAL was insufficient to close the claim because it did not contain the necessary notice. See Johnson v. McDonald, 697 P.2d 810
(Colo.App. 1985); McCotter v. U.S. West Communications, Inc., W.C. No. 4-430-792 (March 25, 2002) (failure to attach medical reports as required by statute vitiated effectiveness of FAL).
III.
The respondents next contend the ALJ erred in finding the claimant proved that he is entitled to benefits based on whole person impairment rather than the schedule. The respondents argue there is “no evidence” that the claimant’s injury caused functional impairment beyond the arm at the shoulder, and assert that “pain is not a functional impairment.” We reject these arguments.
It is now settled that the question of whether the claimant sustained the loss of an arm at the shoulder within the meaning of § 8-42-107(2)(a), C.R.S. 2002, or a whole person impairment compensable under §8-42-107(8)(c), is one of fact for determination by the ALJ. In resolving this question, the ALJ must determine the situs of the functional impairment, and the site of the functional impairment is not necessarily the site of the injury itself. Delaney v. Industrial Claim Appeals Office, 30 P.3d 691 (Colo.App. 2000); Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996); Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996).
The AMA Guides’ definition of where the arm ends and the torso begins is not dispositive of whether the claimant sustained a scheduled loss of the arm at the shoulder. However, a physician’s rating under the AMA Guides “may be considered by the ALJ in determining whether the claimant’s functional impairment is fully described on the schedule of disabilities.” Strauch v. PSL Swedish Healthcare System, 917 P.2d at 368. Further we have held that pain and discomfort which affect the claimant’s ability to use a portion of the body may be considered “functional impairment” for purposes of determining whether an injury is on or off the schedule. Valles v. Arrow Moving Storage, W.C. No. 4-265-129
(October 22, 1998); Salaz v. Phase II Co., W.C. No. 4-240-376 (November 19, 1997), aff’d. Phase II Co. v. Industrial Claim Appeals Office,
(Colo.App. No. 97CA2099, September 3, 1998) (not selected for publication).
Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review requires that we defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the claimant’s testimony supports the finding that the shoulder injury affects structures proximal to the arm at the shoulder. Specifically, the claimant experiences pain and restriction of movement between the shoulder and neck, particularly when performing overhead work. Although not dispositive, the DIME physician’s testimony also lends support to the conclusion that the claimant suffered injury to a part of the body not found on the schedule. Consequently, there is substantial evidence to support the order.
The respondents suggest the ALJ applied an improper burden of proof because she stated the DIME physician’s impairment rating was not overcome by clear and convincing evidence. However, as we understand the order, the ALJ first placed the burden of proof on the claimant to establish that he sustained functional impairment beyond the shoulder, and did not accord the DIME physician’s opinion any special weight on that issue. Conclusion of Law 2. The ALJ’s statement that the impairment rating of the DIME physician was not overcome by clear and convincing evidence appears to be a finding with respect to DIME physician’s whole person rating after the ALJ found the claimant met the initial burden of proof to establish a whole person impairment.
We note the claimant argues in his brief, as he did with respect to the penalty issue, that the ALJ was bound by the DIME physician’s opinion that the claimant sustained a whole person impairment. If the claimant is correct, the error is at most harmless since the ALJ awarded whole person impairment as requested by the claimant. We note, however, that we believe the claimant’s position to be incorrect in light of Delaney v. Industrial Claim Appeals Office, supra.
IT IS THEREFORE ORDERED that the claimant’s petition to review is dismissed with prejudice insofar as it seeks review of ALJ Muramoto’s order dated September 10, 2002.
IT IS FURTHER ORDERED that ALJ Henk’s order dated November 26, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
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 May 12, 2003 to the following parties:
Rodney Burns, 5621 W. 14th Ave., Lakewood, CO 80214
Northglenn Dodge, 759 W. 104th Ave., Northglenn, CO 80234
Mid-Century Insurance Company, 7535 E. Hampden Ave., #300, Denver, CO 80231
IME Unit, Tower 2, #640, Division of Workers’ Compensation — Interagency Mail Roger Fraley, Jr., Esq., 517 E. 16th Ave., Denver, CO 80203 (For Claimant)
Chris Forsyth, Esq., 1801 Broadway, #1500, Denver, CO 80202 (For Respondents)
By: A. Hurtado