IN THE MATTER OF THE CLAIM OF RONALD CALVERT, Claimant, v. ROADWAY EXPRESS, INC., Employer, and OLD REPUBLIC INSURANCE and GALLAGHER BASSETT, Insurer, Respondents.

W.C. No. 4-355-715.Industrial Claim Appeals Office.
May 20, 2005.

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) which denied the claimant’s petition to reopen and awarded future medical benefits. We modify the award of future medical benefits and, as modified, affirm.

The claimant was awarded permanent partial disability benefits for a 1997 injury, and the benefits were fully paid by October 6, 1998. In an order affirmed by the Panel on June 23, 2003, the claimant was denied permanent total disability benefits but awarded future medical benefits as provided by Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).

After Medicare approved payment, the claimant underwent back surgery by Dr. Bess in February 2004. The claimant alleged the surgery was necessitated by a worsening of the industrial injury. In August 2004, the claimant petitioned to reopen the claim and requested additional temporary disability benefits.

The respondents argued the claim was barred from reopening under the statute of limitations in § 8-43-303 C.R.S. 2004. Further, the respondents argued the surgery was not reasonable or necessary to treat the industrial injury.

The ALJ determined the petition to reopen was filed more than 6 years from the date of injury and more than 2 years after the last payment of indemnity benefits. Further, the ALJ found the claimant failed to prove a worsening of the industrial injury. Therefore, the ALJ denied the petition to reopen and the request for additional temporary disability benefits. However, the ALJ determined the surgery was appropriat Grover-type treatment of the industrial injury. Therefore, the ALJ ordered the respondents to pay any surgery expense not covered by Medicare.

The claimant’s Petition to Review and an “Amended and Supplemental Petition to Review,” contain general allegations of error. See §8-43-301(8), C.R.S. 2004. The claimant also asserts the claim for temporary disability benefits was not barred because it was filed within 2 years of the February 2004 surgery which caused the wage loss for which he sought additional temporary disability benefits. In addition, the claimant argues the ALJ erred in finding the respondents were not required to respond to Dr. Bess’s request for pre-authorization of the February 2004 surgery. Further, the claimant contends the ALJ erroneously limited the respondents’ liability for medical benefits. However, the claimant has not filed a brief in support of the petition to review. Consequently, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).

Sections 8-43-303(1), and (2)(a), C.R.S. 2004, provide that an ALJ may reopen a claim due to a change of condition within 6 years of the date of injury or within 2 years of the date benefits were last due and payable, whichever is longer. The statute also allows a claim to be reopened within 2 years of the date the last medical benefits became due and payable, but only for purposes of awarding additional medical benefits.

We have reviewed the record and the ALJ’s findings of fact. The ALJ’s findings are sufficient to permit appellate review. Further, the ALJ’s finding that the claimant failed to prove a worsening of the 1997 injury is supported by substantial evidence in the record and supports the conclusion the claimant failed to prove grounds to reopen the claim.

In any case, the claimant does not dispute the ALJ’s finding that the petition to reopen was filed more than 6 years after the date of injury or that the petition was filed more than 2 years after October 6, 1998, when the last permanent partial disability benefit was paid.

Furthermore because the date the last medical payment became due and payable is only relevant where the claimant seeks to reopen the issue of medical benefits, evidence the petition to reopen was filed within 2 years of the February 2004 surgery is immaterial to the claimant’s request to reopen the issue of temporary disability benefits. Consequently, the ALJ did not err in finding that the August 2004 petition to reopen was barred by the statute of limitations in §8-43-303(2)(a).

The claimant also contends the reopening statute violates equal protection guarantees of the constitution because § 8-43-303(3) permits the respondents to seek a reopening “at anytime” to “take away” permanent total disability benefits but precludes claimants from seeking to reopen a claim after 6 years.

We lack jurisdiction to declare the statute unconstitutional Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971) Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539
(Colo.App. 1995). Indeed, to address the claimant’s constitutional challenges would “violate the principle of separation of powers, and cause us to engage in constitutional decision-making beyond our area of expertise.” See Denver Center for Performing Arts v. Briggs, 696 P.2d 299, 305 (Colo. 1985). Accordingly, we cannot resolve the claimant’s constitutional challenge to § 8-43-303.

Concerning the award of medical benefits, the record amply supports the ALJ’s finding that the February 2004 surgery was reasonably necessary to relieve the effects of the industrial injury. Further, the respondents have not challenged the ALJ’s determination that the February 2004 surgery is a compensable medical benefit and the claimant withdrew the claim for penalties. (Tr. p. 11). Therefore we need not consider the claimant’s challenge to the ALJ’s finding that the Rules of Procedure, Part XVI, 76 Code Colo. Reg. 1101-3 is inapplicable to Dr. Bess’s request for pre-authorization of the February 2004 surgery. See Duran v. Industrial Claim Appeals Office, 883 P.2d 477 (Colo. 1994) (an issue is moot if its resolution cannot have any effect upon an existing controversy).

Finally, the claimant contends the ALJ erroneously failed to order the respondents to reimburse Medicare for cost of the February 2004 surgery because under 42CFR § 411.40, § 411.43(d) and § 411.45 Medicare is a secondary payor only.

In defense, the respondents argue only that the issue of whether they must reimburse Medicare was not presented to the ALJ. However, we note that the claimant explicitly requested an order requiring the respondents “to repay Medicare” for the surgery. (Tr. p. 36). Thus, the issue was properly before the ALJ for resolution.

Based upon his finding that the claimant was “entitled” to the Medicare benefits, the ALJ ordered the respondents to pay that portion of the surgery which was not covered by Medicare. (Tr. p. 46); CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev’d on other grounds at 783 P.2d 269 (1989) (the ALJ’s oral findings may be considered to interpret the ALJ’s written findings). However, the ALJ’s implicit finding that the respondents were not primarily liable for the entire cost of the surgery is contrary to the law. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000) (Panel may consider findings which are necessarily implied by the ALJ’s order).

42 CFR § 411.43(a) provides that a Medicare beneficiary is required to take “whatever action is necessary to obtain any payment that can reasonably be expected under workers’ compensation.” Similarly, § 411.43(b) states that Medicare “does not pay until the beneficiary has exhausted his or her remedies under workers’ compensation.” Further, 42CFR § 411.40(b)(i) provides that Medicare does not pay for any services for which “payment has been made, or can reasonably be expected to be made promptly under a workers’ compensation law or plan of the United States or a state . . .”.

In contrast, § 8-42-101(1), C.R.S. 2004 requires the respondent-insurer in a workers’ compensation claim to pay the cost of all authorized medical treatment which is reasonably necessary to cure or relieve the effects of the industrial injury. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997); Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995). Accordingly, we agree with the claimant that Medicare is a secondary payor only.

On appeal it is undisputed the February 2004 surgery was authorized and reasonably necessary to relief the claimant from the effects of the 1997 injury. Accordingly, the ALJ erred insofar as he limited the respondents’ liability to the surgery costs not covered by Medicare.

IT IS THEREFORE ORDERED that the ALJ’s order dated December 9, 2004, is modified to provide that the respondents are responsible for the cost of the February 2004 surgery and as modified, the order is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

___________________ David Cain
___________________ Kathy E. Dean

Ronald Calvert, Aurora, CO, Roadway Express, Inc., Aurora, CO, Old Republic Insurance, c/o Gallagher Bassett, Anaheim, CA, Chris L. Ingold, Esq., Denver, CO, (For Claimant).

John M. Lebsack, Esq., Denver, CO, (For Respondents).