W.C. No. 4-425-073Industrial Claim Appeals Office.
December 31, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr, which determined that the claim was closed and denied a petition to reopen based on an alleged worsened condition. The claimant contends a Final Admission of Liability (FAL) filed by the respondents was insufficient to close the claim because the respondents did not attach a medical report. The claimant further contends the evidence does not support the ALJ’s finding that she failed to prove a worsened condition. We affirm.
The claimant sustained a compensable ankle injury on April 6, 1999, and the respondents filed a General Admission of Liability for temporary total disability benefits from April 10 through April 12, 1999.
The claimant’s authorized treating physician (ATP), placed the claimant at maximum medical improvement (MMI) on August 3, 1999, with no medical impairment. The ATP’s report was dated August 5, 1999. On August 11, 1999, the respondents filed an FAL which stated the claimant reached MMI on August 5, and admitted for no permanent disability benefits. The portion of the FAL concerning medical benefits after MMI refers to the “final medical report of Dr. McFerran dated 8-5-99.” The claimant did not object to the FAL within thirty days as required by §8-43-203(2)(b)(II), C.R.S. 2003.
At hearing, the claimant testified the FAL sent to her did not include the medical report of the ATP. The insurance adjuster testified that he did attach the medical report before the FAL was mailed to the claimant and the Division of Workers’ Compensation (DOWC). The ALJ chose to credit the adjuster’s testimony because it was corroborated by the FAL filed with DOWC, which includes a copy of the ATP’s August 5 report. Consequently, the ALJ found the claim was closed by the claimant’s failure to object to the FAL within 30 days as required by §8-43-203(2)(b)(II).
The claimant also filed a petition to reopen her claim alleging that her condition worsened after being placed at MMI on in August 1999. Specifically, the claimant alleged that she suffered worsening ankle pain, leg pain and back pain caused by the injury. The claimant’s position was supported by the report of Dr. Swarsen, who recommended evaluation by an orthopedic surgeon specializing in foot and ankle problems.
However, the ALJ denied the petition to reopen. The ALJ credited the opinion of the ATP, who reexamined the claimant on October 18, 2002, that the claimant’s healing process “is long since finished,” and no additional treatment is recommended. The ALJ also inferred from the ATP’s reports that the ATP did not believe the claimant’s back pain is related to the industrial injury, or a limp caused by the injury.
I.
On review, the claimant reiterates the contention the claim was not closed because the evidence does not support a finding that the FAL mailed to the claimant included the ATP’s August 5 medical report. The claimant further contends that even if the report was attached it did not support the FAL because the report placed the claimant at MMI on August 3 while the FAL states the claimant reached MMI on August 5. We are not persuaded.
If an FAL comports with the requirements of § 8-43-203(2)(b)(II), and the claimant does not file a timely objection, the claim is closed as to the issues admitted in the FAL. Section 8-43-203(2)(d), C.R.S. 2003 Dyrkopp v. Industrial Claim Appeals Office, 30 P.3d 821 (Colo.App. 2001). The claimant correctly states that § 8-43-203(2)(b)(II) and Rule of Procedure IV (N)(1), 7 Code Colo. Reg. 1101-3 at 8, require that when a final admission is “predicated upon medical reports, such reports shall accompany the” FAL. In light of these provisions we have held that failure to incorporate the relevant medical reports vitiates an FAL, and the claimant’s failure to object to such an admission does not close the claim. See Maloney v. Ampex Corp., W.C. No. 3-952-034 (February 27, 2001).
Here, the question of whether the FAL which the adjuster mailed to the claimant incorporated the August 5 report involved a disputed question of fact. The ALJ found, after resolving a conflicts in the evidence and the relevant credibility issues, that the FAL mailed to the claimant did include the report. Because this finding is based on substantial, albeit conflicting, evidence in the record, we may not interfere with it. Section 8-43-301(8), C.R.S. 2003; Wilson v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA2140, August 14, 2003). It follows that the ALJ did not err in concluding the claimant’s failure to object to the FAL closed the claim.
We also disagree the FAL is invalid because the FAL gives an MMI date of August 5 while the ATP’s medical report states the claimant reached MMI on August 3. It is clear that the FAL is “predicated” on the ATP’s August 5 report insofar as the respondents sought to deny permanent disability benefits based on the ATP’s rating and close the claim. Although the two day difference in MMI dates between the report and FAL might have afforded the claimant a basis for objecting to the FAL, the difference does not nullify the FAL. In fact, the ATP’s finding that the claimant was at MMI on August 3 certainly afforded a factual basis for the respondents’ admission that the claimant was at MMI two days later. Indeed, the claimant’s testimony was not that she was confused by the difference in the MMI dates, but that she did not receive the ATP’s report at all. Moreover, the statute does not require that there be perfect symmetry between FALs and attached medical reports, only that where an admission is “predicated” on a report that the report be attached. Thus, the claimant may compare the medical report to the FAL and object to the FAL if warranted.
We are unpersuaded by the claimant’s remaining arguments. Although respondents’ Exhibit E does not contain pages 2 and 4 of the FAL, the ALJ could plausibly infer that those pages appeared on the back of pages 1 and 3, and simply were not copied for purposes of preparing the exhibit. Moreover, at hearing claimant’s counsel did not argue that the FAL was incomplete because the objection form mandated by Rule of Procedure IV (N) (1)(a), 7 Code Colo. Reg. 1101-3 at 8, was no attached to the FAL. Rather, counsel asserted the FAL was insufficient because it did not include the ATP’s medical report. (Tr. P. 3-4). It was not until the claimant’s position statement was filed after the hearing that the claimant first argued the FAL was insufficient because it lacked an objection form. Thus, the claimant waived the argument and it may not now be raised on appeal. See Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990) (due process requires parties be apprised of evidence and issues to be considered so that they may present evidence in support of their positions, confront adverse evidence, and make argument concerning the legal issues).
Finally, the FAL did not terminate temporary disability benefits so as to implicate Rule of Procedure IV (N)(3), 7 Code Colo. Reg. 111-1-3 at 8.1. Indeed, temporary disability benefits were terminated by the general admission of liability filed in July 1999. Thus, the FAL was not “predicated” on documents involving the termination of temporary disability benefits. This case is distinguishable from Maloney v. Ampex Corp., supra, which involved the filing of successive final admissions.
II.
The claimant next contends the ALJ erred in denying the petition to reopen based on worsened condition. The claimant asserts the ALJ’s pertinent findings of fact are not supported by substantial evidence. We disagree.
In order to reopen based on a worsened condition the claimant had the burden of proof to establish a change in a physical or mental condition which is causally related to the compensable industrial injury. The questions of whether the claimant proved a worsening, and whether the worsening was caused by the industrial injury, are issues of fact for determination by the ALJ. Thus, we must uphold the ALJ’s determinations if supported by substantial evidence in the record. Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082 (Colo.App. 2002); Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
The claimant’s arguments notwithstanding, the evidence supports the ALJ’s finding that there was no worsening of the claimant’s ankle condition. With respect to the ankle, the ATP’s October 2002 report states the claimant’s ankle and leg do not require further treatment, and it was difficult for the ATP to “explain physiologically the pain she is having.” The ALJ found this report credible, and expressly discredited the conflicting report of Dr. Swarsen. Because we may not alter the ALJ’s credibility determinations involving expert medical opinion, there is no basis for interfering with the order. Cordova v. Industrial Claim Appeals Office, supra.
The claimant agues the ATP did not place any restrictions on the claimant until October 2002, and the imposition of these restrictions demonstrates a worsened condition as a matter of law. However, to the extent these restrictions could be interpreted as representing an opinion that the claimant’s condition worsened, the ALJ resolved this ambiguity in the ATP’s opinion against the claimant and found that it was the ATP’s opinion that there was no worsening. This was within the ALJ’s authority as fact- finder. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). Moreover, the mere imposition of restrictions does not compel the conclusion that there was a worsening. The restrictions may have been imposed as a method of alleviating symptoms, not because there was any worsening of condition.
Neither was the ALJ required to find the claimant’s back symptoms were caused by the industrial injury. First, although the ATP noted in October 2002 that the claimant walked with a “slight antalgic gait,” he did not “appreciate a limp.” More importantly, the ALJ inferred the ATP did not believe the back problems were caused by the injury. This is a plausible inference from the fact that the ATP did not recommend further treatment, and specifically stated that he did not believe a “back work-up is necessary.” Moreover, there was evidence the claimant attributed her back pain to “stress.” (Respondents’ Exhibit D). Finally, as the ALJ found, Dr. Swarsen’s report was self-contradictory concerning the cause of the claimant’s back pain.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 21, 2003, 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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2003. 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 order were mailed to the parties at the addresses shown below on December 31, 2003 by A. Hurtado.
Autumn E. Hernandez, 10837 Lakeshore Dr. North, #26, Livingston, TX 77351
Mike Dunn, The Bailey Company, 601 Corporate Circle, Golden, CO 80401
Pacific Indemnity Company, c/o Linda Giovanni, Chubb Group of Insurance Companies, 9155 E. Nichols, #100, Englewood, CO 80112
Janet L. Frickey, Esq., 940 Wadsworth Blvd., 4th floor, Lakewood, CO 80214 (For Claimant)
Jonathan A. Decker, Esq., 1700 Broadway, #1900, Denver, CO 80290 (For Respondents)