W.C. No. 4-514-258.Industrial Claim Appeals Office.
August 12, 2003.
FINAL ORDER
The claimant seeks review of a Supplemental Order of Administrative Law Judge Stuber (ALJ) which struck his application for hearing on the issue of permanent total disability (PTD) benefits. We affirm.
A brief procedural history is necessary to understand the issue on appeal. The claimant suffered an admitted injury in 2001. On March 6, 2002, the respondents filed a Final Admission of Liability which admitted liability for permanent partial disability benefits based on 21 percent whole person impairment. The claimant objected to the Final Admission and requested a Division-sponsored independent medical examination (DIME). The claimant also requested the lump sum payment of permanent disability benefits. The request for a lump sum award was denied.
On May 8, 2002, the claimant filed an application for hearing in which he requested penalties for the respondents’ failure to negotiate the selection of a DIME physician. The respondents separately requested penalties, costs and attorney fees. The issues came before ALJ Felter at a hearing on September 3, 2002. On October 9, 2002, ALJ Felter issued an order which denied the requests for penalties, costs and attorney fees.
In the interim, the DIME was completed. In accordance with the DIME physician’s opinions, the respondents filed a Final Admission dated August 2, 2002, for the payment of permanent disability benefits based on 18 percent impairment and future medical benefits as provided by Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). The claimant timely objected to the Final Admission.
On January 10, 2003 the claimant filed an application for hearing on the issues of Grover-type medical benefits and PTD benefits. The respondents moved to strike the application on grounds it was untimely. In an order dated February 27, 2003, the ALJ granted the respondents’ motion.
The claimant filed a new application for hearing on March 7, 2003, which again endorsed the issues of Grover-type medical benefits and PTD. In an order dated March 24, 2003, the ALJ found the application for hearing failed to comply with the Rules of Procedure, Part VIII(A)(1), 7 Code Colo. Reg. 1101-3 at 21, because the endorsed issues were not ripe for hearing and the application was untimely. Therefore, the ALJ struck the March 7 application for hearing and prohibited the claimant filing a new application on the same issues in the absence of a petition to reopen.
The claimant timely appealed the March 24 order. After the matter was briefed the ALJ entered a Supplemental Order which struck the application for hearing on the issue of PTD and prohibited the claimant from reapplying for a hearing on that issue without filing a petition to reopen. However, because the respondents admitted liability fo Grover-type medical benefits, the ALJ denied the respondents’ motion to strike the application for hearing on the issue of Grover-medical benefits. The claimant timely appealed the Supplemental Order.
On review, the claimant contends he is either entitled to a hearing where he can argue that the issue of PTD was not ripe for hearing 30 days after the filing of the Final Admission or, summary judgment denying his claim for PTD so he will have an appealable order concerning his entitlement to PTD benefits. We reject these arguments.
First, we reject the claimant’s contention that the ALJ’s order is not reviewable. Section 8-43-301(2), C.R.S. 2002, provides that an order is subject to appellate review if it “requires any party to pay a penalty or benefits or denies a claimant a benefit or penalty.” Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). The ALJ’s order bars the claimant from litigating the issue of PTD absent an order reopening the claim under § 8-43-303 C.R.S. 2002. Thus, the ALJ has denied permanent total disability benefits absent a reopening of the claim. It follows the ALJ’s order is an appealable order which resolves the claimant’s entitlement to PTD benefits.
Next, due process of law requires that the parties be afforded an opportunity to confront adverse witnesses and present evidence and argument in support of their positions. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). However, where the pertinent facts are undisputed, and a party is entitled to judgment as a matter of law the ALJ may dispose of an issue without conducting a hearing. See Service Supply Co. v. Vallejos, 169 Colo. 14, 452 P.2d 387
(1969); Morphew v. Ridge Crane Service, Inc., 902 P.2d 848 (Colo.App. 1995).
In his brief in support of the petition to review, the claimant contends “there are factual disputes.” However, the claimant’s brief does not identify any specific dispute concerning a material fact nor do any of his pleadings in response to the respondents’ motion to strike the applications for hearing. To the contrary, the claimant concedes the “factual dispute may be immaterial to the legal determination.” He added, “[T]he only point that is made is that there must be an award or denial of permanent total disability benefits.” Thus, the record fails to support a conclusion there is a material issue of fact which would warrant an evidentiary hearing.
To the contrary the determination of whether the issue of PTD was ripe for hearing is a matter of law. Section 8-43-203(2)(b)(II), C.R.S. 2002, states that a claim is automatically closed as to issues admitted in a final admission if within thirty days after the date of the final admission the claimant does not “contest the final admission in writing and request a hearing on any disputed issues that are ripe for hearing.” (Emphasis added). Rule VIII(A)(1) provides that issues endorsed for hearing must be ripe for adjudication.
The claimant argues the issue of PTD was not ripe until it was determined which of the respondents’ Final Admissions controlled and the claimant was awarded a lump sum payment of permanent partial disability benefits. We reject these arguments.
The phrase “ripe for hearing” is not defined by the statute. However, applying the rules of statutory construction, we concluded in Chavez v. Cargill, Inc., W.C. No. 4-421-748 (November 1, 2002), that an issue is “ripe for hearing” if the issue is addressed in the Final Admission, and the legal prerequisites to adjudication of the issue (such as MMI and permanent impairment determinations) are complete. The rationale fo Chavez is that the statute is designed to offer finality on issues concerning which the claimant can present no legitimate controversy. See also, Peregoy v. United Parcel Service, W.C. No. 4-427-814 (February 28, 2003). We adhere to our prior conclusions.
PTD cannot be ascertained until the claimant is at MMI. McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo.App. 1999); Husson v. Industrial Claim Appeals Office, 991 P.2d 346 (Colo.App. 1999). This is true because MMI is defined as the date when “any medically determinable physical or mental impairment as a result of injury has become stable.” Section 8-42-201(11.5), C.R.S. 2003. Thus, the extent and permanency of claimant’s condition cannot be ascertained until the claimant reaches MMI.
Under § 8-42-107(8)(b), C.R.S. 2002, the initial determination of MMI is to made by an authorized treating physician and is dispositive unless a DIME is requested. Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995); Postlewait v. Midwest Barricade, 905 P.2d 21
(Colo.App. 1995). The DIME physician’s determination of MMI is binding unless overcome by “clear and convincing evidence” to the contrary. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the claimant disputed the respondents’ March 2002 Final Admission and specifically requested a DIME. Assuming, arguendo, the claimant disputed the treating physician’s determination of MMI and the DIME was not completed until July 23, 2002, the issue of PTD was not ripe for adjudication within 30 days of the date of the respondents’ March 16, 2002 Final Admission.
However, the respondents’ August 2, 2002 final admission was based on the DIME physician’s opinions. The August Final Admission listed the date of MMI as February 12, 2002, and the claimant did not apply for a hearing to overcome the DIME physician’s opinions by clear and convincing evidence. To the contrary the claimant’s application for hearing dated March 7, 2003 endorsed the issues of medical benefits after MMI and PTD. Because MMI was no longer disputed, the issue of permanent total disability was ripe for adjudication. See Gonzales-Rivera v. Beacon Hill Investments, Inc., W.C. No. 4-124-250 (September 227, 1994 (DIME nt a prerequisite to adjudicating PTD). It follows the claimant was required to apply for a hearing on PTD no later than September 2, 2002. Under these circumstances, the ALJ correctly determined that the claimant’s January 10, 2003 and March 7, 2003 applications for hearing on the issue of PTD were untimely. Consequently, the issue of PTD was closed absent an order reopening the claim.
The claimant’s further arguments to the contrary are without merit. The claimant cites no authority, and we are unable to locate any authority, in support of his contention that PTD was not ripe for hearing until he was paid a lump sum for permanent “partial” disability. In fact, a claimant cannot obtain permanent partial and permanent total disability benefits for the same period. Waymire v. Industrial Claim Appeals Office, 924 P.2d 1168 (Colo.App. 1996), cert. denied October 15, 1996 . Thus, the claimant’s application for a hearing on PTD is inconsistent with his request for a lump sum award of permanent partial disability benefits.
IT IS THEREFORE ORDERED that the ALJ’s Supplemental Order dated May 7, 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, 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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed August 12, 2003 to the following parties:
Alex Encinias, 719 W. Buena Ventura, Colorado Springs, CO 80907
Corby Young, United Parcel Service, 5020 Ivy St., Commerce City, CO 80022
Sandi Goldberg, Liberty Mutual Insurance Company, P. O. Box 168208, Irving, TX 75016-8208
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
John M. Connell, Esq., 6750 Stapleton South Dr., #200, Denver, CO 80216 (For Respondents)
BY: A. PENDROY