W.C. No. 4-368-354Industrial Claim Appeals Office.
February 7, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) insofar as the order determined the claim was closed by a final admission of liability (FAL) and the claimant was not entitled to challenge a finding of maximum medical improvement (MMI). We affirm.
The claimant sustained a compensable back injury in December 1997. In January 2000, the claimant underwent a Division-sponsored independent medical examination (DIME) on the issues of MMI and permanent impairment. The DIME physician opined the claimant reached MMI on October 8, 1999, with an 18 percent whole person impairment.
On February 4, 2000, the respondents filed a FAL in accordance with the DIME physician’s impairment rating and date of MMI. The FAL contained an admission for temporary disability benefits, permanent partial disability benefits and medical benefits, but denied liability for ongoing medical benefits after MMI. The claimant did not file a written objection to the FAL, but she did file an application for hearing listing the issue as medical benefits after MMI.
On September 28, 2000, after a hearing was set on the medical benefits issue, the respondents’ counsel notified claimant’s counsel by letter that the respondents would authorize “post MMI maintenance medical care.” On October 4, 2000, claimant’s counsel wrote to respondents’ counsel that the claimant was withdrawing the application for hearing “with the understanding” that the respondents would file a revised FAL admitting for medical benefits after MMI.
On October 22, 2001, the respondents filed a revised FAL admitting for ongoing medical benefits, but otherwise the FAL admitted to benefits identical to those admitted in the February 4, 2000 FAL. On October 29, 2001, the claimant filed an objection to the October 22 FAL.
In February 2002 the claimant filed an application for hearing on various issues, including the contentions that the claimant was not at MMI and wished to overcome the DIME physician’s finding of MMI. However, the ALJ ruled the issues of MMI and additional permanent partial disability benefits were closed by the claimant’s failure to object to the February 4 FAL on any issue except the issue of ongoing medical benefits after MMI. In any event, the ALJ found the claimant failed to overcome the DIME physician’s finding of MMI.
On review, the claimant contends the ALJ erred in finding the issue of MMI was closed by the failure to file a specific objection to the February 4 FAL. The claimant argues that, pursuant to Rule of Procedure IV (L)(2), 7 Code Colo. Reg. 1101-3 at 7, all issues were preserved by his timely objection to the October 22 FAL. The claimant asserts this argument is significant because she now wishes to pursue a claim for permanent total disability benefits. We perceive no error in the ALJ’s ruling.
This case is controlled by § 8-43-203(2)(b) as it existed before amendments in 1998 and 2001. See 1998 Colo. Sess. Laws, ch. 313 at Pp. 1431-1432; 2001 Colo. Sess. Laws, ch. 23 at Pp. 49-50; Vigil v. Jefferson County, W.C. No. 3-993-995 (January 7, 2003). Hence, the pertinent statute reads as follows:
An admission of liability for final payment of compensation shall include a statement that this is the final admission by the workers’ compensation insurance carrier in the case, that the claimant may contest this admission if the claimant feels entitled to more compensation, to whom the claimant should provide written objection, and notice that if the claimant does not contest the final admission in writing within sixty days of the date of the final admission the case will be automatically closed as to the issues admitted in the final admission. When the final admission is predicated upon medical reports, such reports shall accompany the final admission. (Emphasis added).
We have previously held that an application for hearing may constitute a “written objection” to an FAL for purposes of the statute if the application is sufficient to alert the respondents to an ongoing controversy not subject to resolution by administrative closure. McCotter v. U.S. West Communications, W.C. No. 4-430-792 (March 15, 2001) Mitchell v. Office Liquidators Inc., W.C. No. 4-409-905 (December 29, 2000). None of this line of cases determined whether an application for hearing contesting a specific issue addressed by the FAL is sufficient to constitute a written objection to other issues not mentioned in the application for hearing. Vigil v. Jefferson County, supra.
However, we recently held that where the respondents filed an FAL addressing issues including temporary and permanent partial disability, a written objection to the FAL listing the issue of disfigurement did not constitute a “written objection” to other issues admitted in the FAL Vigil v. Jefferson County, supra. Similarly, in Campello v. Progressive Insurance Co., W.C. No. 4-205-461 (January 27, 2003), we held that where a claimant filed a written objection to an FAL listing the issues as permanent disability and average weekly wage, the objection was not sufficient to constitute a written objection to the FAL’s denial of penalties.
The rationale for the Vigil and Campello decisions is that §8-43-203(2)(b) is part of a comprehensive statutory scheme encouraging the prompt payment of claims without the necessity of litigation where there are no legitimate issues in controversy. See Dyrkopp v. Industrial Claim Appeals Office, 30 P.3d 821 (Colo.App. 2001); Cibola v. Industrial Claim Appeals Office, 971 P.2d 666 (Colo.App. 1998). Hence, the statutory purpose for requiring a written objection to an FAL is to notify the respondents that the claimant does not accept the respondents’ “final” position and alert the respondents to issues which are not amenable to administrative closure without litigation. Cf. Smith v. Myron Stratton Home, 676 P.2d 1196 (Colo. 1984) (one purpose of requiring employer to admit or deny liability is to alert the claimant to legal ramifications of the claims process); Martin v. Industrial Commission, 608 P.2d 366 (Colo.App. 1979) (purpose of requiring claimant to file a claim for benefits is to notify employer of claimant’s identity, that a compensable event has occurred, and that compensation is expected). Moreover, 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. Section 8-43-203(2)(d), C.R.S. 2002; Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo.App. 1993).
It follows the claimant’s application for hearing listing the issue of medical benefits after MMI was sufficient to preserve that issue, but not sufficient to constitute a written objection to other aspects of the February 4 FAL, including MMI or permanent disability benefits. First, the claimant’s entitlement to ongoing benefits after MMI is ordinarily determined at the time permanent disability benefits are awarded. Grover v. Industrial Commission, 759 P.2d 705, 711 (Colo. 1988). Consequently, an objection to the respondents’ denial of liability for medical benefits after MMI without a simultaneous objection to the determination of MMI and award of permanent disability benefits conveys the impression the claimant had no objection to the latter issues, but desired only that medical treatment be provided for maintenance of the condition or relief of symptoms. Second, permanent partial disability benefits and permanent total disability benefits are awarded for the same loss of earning capacity, and an admission for permanent partial disability benefits constitutes an implicit denial of permanent total disability benefits Dyrkopp v. Industrial Claim Appeals Office, supra. Hence, if the claimant wished to claim permanent total disability benefits after the February 4 admission, she should have objected to the admission on the issue of permanent disability.
The claimant’s reliance or Rule of Procedure IV (L)(2) is misplaced. Rule of Procedure IV (L)(1), 7 Code Colo. Reg. 1101-3 at 7, concerns amended final admissions, and states the Director may permit the filing of an amended FAL within the time limits established by § 8-43-203. Hence the rules are expressly subject to the time limits of the statute. As we have held, the claimant lost the right to contest the issues of MMI and permanent disability by failing to file a written objection to those issues after the February 4 FAL. Hence, Rule IV (L)(2) afforded the claimant the right to object to the October 22 admission insofar as it concerned ongoing medical benefits, but did not revive issues closed by the claimant’s failure to object to the February 4 FAL. Section 8-43-203(2)(d).
We note that we consider the ALJ’s order to be final and appealable because it amounts to a denial of any additional disability benefits unless the claimant establishes grounds to reopen. Section 8-43-301(2), C.R.S. 2002.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 8, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________
David Cain
___________________________________
Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Orderis commenced in the Colorado Court of Appeals, 2 East 14th Avenue,Denver, CO 80203, by filing a petition for review with the Court, withintwenty (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 mustserve a copy of the petition upon all other parties, including theIndustrial Claim Appeals Office, which may be served by mail at 1515Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed _______ February 7, 2003 _ to the following parties:
Alfreda Drinkhouse, 1230 W. Battlement Pkwy., #E-307, Parachute, CO 81635
Mountain Board of Cooperative Education Services, 1713 Mt. Lincoln Dr. West, Leadville, CO 80461
Western Guaranty Fund Services, 1720 S. Bellaire St., #408, Denver, CO 80222
Jeffrey S. Auxier, Esq., P.O. Box 987, Salida, CO 81201 (For Claimant)
John M. Lebsack, Esq., 950 17th St., #2100, Denver, CO 80202 (For Respondents)
By: ________A. Hurtado____________