W.C. No. 4-531-067.Industrial Claim Appeals Office.
July 3, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated March 16, 2007, that denied a claim for additional temporary total disability benefits. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant suffered an admitted work injury in December 2001. Dr. Bergland, a treating physician, determined that the claimant was at maximum medical improvement(MMI). On December 11, 2002 a Division Independent medical examination (DIME) was performed. The DIME physician determined that the claimant was not at MMI. The parties agreed that Dr. Tyler would provide additional treatment. After providing such treatment Dr. Tyler determined that claimant was at MMI. On April 23, 2004 the insurer filed a final admission of liability based on Dr. Tyler’s report. The claimant applied for a lump sum award of permanent partial disability benefits and the Director of the Division of Workers’ Compensation ordered a lump sum payment on May 28, 2004. On July 1, 2004, the insurer filed an amended final admission of liability, making only a small change in the balance of permanent partial disability benefits. The claimant did not file an objection to either the April 23 or July1, 2004 final admissions of liability.
On appeal the claimant argues that the final admission filed by the respondents following the authorized treating physician’s opinion of MMI did not close the case because the clamant was not sent back to the DIME physician for a follow-up examination and determination of MMI.
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The claimant cites Williams v. Kunau, 147 P.3d 33 (Colo. 2006) in support of this contention. In Williams the treating physician made a finding of MMI. The claimant requested and underwent a DIME examination at which it was determined he was not at MMI. The claimant received further treatment and the treating physician concluded that he was at MMI. The insurer filed a final admission of liability (FAL). The claimant objected to the FAL. The ALJ ruled that the claimant had not timely reinitiated the DIME process within thirty days of when the insurer filed its FAL; thus, the case was automatically closed pursuant to § 8-42-107.2(2)(b), C.R.S. (2006).
The claimant in Williams argued that the procedures required by §8-42-107.2(1)(b), C.R.S. (2006) to select the independent medical examiner, including the time limit following the insurer’s filing of an FAL, do not apply to a follow-up examination by a DIME physician after the treating physician’s second determination of MMI. The supreme court agreed and held that, once a claimant has successfully challenged a finding of MMI through the DIME process, that process remains open and, when the treating physician makes a second finding of MMI, the employer or insurer may not file an FAL to close the case prior to returning the claimant to the independent medical examiner for a follow-up examination and determination of MMI.
In our opinion Williams is distinguishable from the present case. I Williams the claimant objected to the final admission of liability and the question was whether the respondents could subsequently rely upon an authorized treating physician’s opinion to support that admission. Here the claimant made no objection to either the April 23, 2004 or the July 1, 2004 final admissions of liability. In contrast to Williams, the claimant did not exercise his right to challenge the final admission of liability. The final admission of liability itself provided notice that the claim would be final if he failed to object. Exhibit 3. Peregoy v. Industrial Claim Appeals Office, 87 P.3d 261 (Colo.App. 2004).
An uncontested final admission of liability automatically closes a case as to the issues admitted in the final admission. Section 8-43-203(2)(b)(II), C.R.S. 2006. Section 8-43-203(2)(b)(II) is part of a statutory scheme designed to promote, encourage, and ensure 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(Colo.App. 2001); Cibola Construction v. Industrial Claim Appeals Office, 971 P.2d 666 (Colo.App. 1998).
An order, whether resulting from an admission, an agreement, or a contested hearing constitutes an “award.” Thus, after such an award becomes final by the exhaustion of, or the failure to exhaust, review proceedings, no further proceedings to increase or decrease any such benefits beyond those granted by the order are authorized, unless there is an appropriate further order entered directing that those proceedings be
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reopened. Brown Root, Inc. v. Indus. Claim Appeals Office, 833 P.2d 780, 783 (Colo.App. 1991). The final admissions of liability filed by the respondents were uncontested. The matter was closed and there was no petition to reopen before the ALJ.
The claimant cites Leeway v. Harrison School District #2, W. C. No. 4-649-073 (October 13, 2006), contending that a final admission that does not comply fully with the requirements of § 8-43-203 is void. We note initially that in Leeway we determined that the admission there was not void from the outset merely because it contained an error. We affirmed the ALJ’s determination the claim was closed and therefore denied further benefits.
In Leeway we further noted that § 8-43-203(2)(b)(II) grants a claimant the right to file an application for hearing, or a response to the employer’s application for hearing, as applicable, on any disputed issues that are ripe for hearing. It also makes it clear that a claimant may contest the final admission of liability if the claimant feels entitled to more compensation. Still further, it requires notice to the claimant that the case will be automatically close as to the issues admitted in the final admission if the claimant does not contest the final admission in writing and request a hearing on any disputed issues that are ripe for hearing. Peregoy v. Industrial Claim Appeals Office, supra.
In Leeway we relied in part upon Drinkhouse v. Mountain Board of Cooperative Education Services, W.C. No. 4-368-354 (February 7, 2003)aff’d, Drinkhouse v. Industrial Claim Appeals Office, (Colo.App. No. 03CA0438, March 4, 2004) (not selected for publication). I Drinkhouse the claimant objected to the respondents’ final admission on the issue of Grover medical benefits, and the parties eventually resolved that issue when the respondents agreed to provide those benefits. The respondents filed an amended final admission admitting liability for Grover medical benefits, but otherwise duplicating the earlier final admission. The claimant then objected to the later final admission and sought a hearing on a variety of issues, including maximum medical improvement and permanent partial disability benefits. An ALJ concluded that those issues were closed by the earlier uncontested final admission, and that the claimant’s right to contest those issues was not revived by the filing of the amended final admission. In affirming the ALJ’s order, we noted in Drinkhouse that “requiring a specific objection to individual aspects of the FAL, or a general objection to the FAL, is consistent with the statutory scheme which contemplates the closure of specific issues addressed by the FAL.” The court of appeals affirmed our order, holding that the claimant’s failure to object to the earlier final admission automatically closed the issues admitted or denied, and that the revised final admission only reopened the issue of Grover medical benefits.
We believe that the present case is distinguishable from those in which a defective final admission was held to be invalid and therefore ineffective in closing any issues. In Reed v. Demetre Painting, W.C. No. 3-069-138 (January 15, 1993), for example, we held
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that in the absence of full compliance with § 8-43-203(2), C.R.S. 2006, the claimant’s failure to object to a final admission does not close the claim. In Reed the respondents had failed to attach the medical report on which the final admission for permanent disability benefits was predicated. We concluded that under those circumstances the claimant’s failure to contest the defective final admission did not close the issue of permanent disability. Similarly, in Burns v. Northglenn Dodge, W.C. No. 4-486-911 (May 12, 2003), we held that a final admission containing the wrong notice under § 8-43-203(2) was invalid and did not close any issues, even absent an objection from the claimant. See also, McCotter v. U. S. West Communications, Inc., W.C. No. 4-430-792 (March 25, 2002) (failure to attach medical reports as required by statue vitiated effectiveness of FAL); Maloney v. Ampex Corporation, W.C. No. 3-952-034
(February 27, 2001) (same).
In these and similar cases the final admission was held to be void because it failed to comply fully with the requirements of §8-43-203(2). In the present case the ALJ did not determine nor did the claimant contend that the final admission failed to comply with §8-43-203)(2). Rather, here the claimant contends under Williams the respondents did not complete the DIME process under 8-42-107.2(2)(b), C.R.S. (2006). Hence, the present case was not one in which the admission was void for failure to comply with § 8-43-203(2), C.R.S. 2006 and the cases relied upon by the claimant are inapposite.
In view of our disposition on the appeal on the grounds that the matter was closed by an uncontested final admission we need not address the issues of whether Williams should receive retroactive application and the effect of the claimant’s application for a lump sum.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 16, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
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Norberto Davila, Colorado Springs, CO, William A. Alexander, Jr., Esq., Alexander and Ricci, P.C., Colorado Springs, CO, (For Claimant).
Michael A. Perales, Esq., Denver CO, (For Respondents).
Truck Insurance Exchange, Kristen McKeon, Denver CO, General Ceiling and Partitions, Inc., Brian Pring, Colorado Springs, CO.
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