W.C. No. 4-393-063.Industrial Claim Appeals Office.
July 6, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Broniak (ALJ) dated February 28, 2007 that denied her claim for temporary total disability (TTD) benefits and penalties. We affirm.
The ALJ resolved this matter based on the parties’ requests for summary judgment. Her order reflects the following facts. The claimant injured her right upper extremity on May 6, 1998. Her authorized treating physician placed her at maximum medical improvement (MMI) on April 19, 1999. The claimant obtained a Division-sponsored independent medical examination (DIME). The DIME physician opined that the claimant had not reached MMI. A new treating physician placed the claimant at MMI again and the DIME physician maintained that the claimant was not at MMI, but assessed a 12 per cent impairment rating for the claimant’s right upper extremity. Another treating physician later placed the claimant at MMI on October 14, 2002. On April 23, 2003, the respondents filed a final admission of liability admitting to a 12 per cent impairment. The respondents filed an amended final admission on May 12, 2003, but the claimant did not object to either final admission. Instead, the claim proceeded to hearing on the question of whether the respondents had to request a follow-up DIME for a determination of the claimant’s MMI status before they could file a final admission of liability.
Another ALJ rejected the claimant’s argument that the respondents were required to pay for a follow-up DIME before filing a final admission of liability. The claimant appealed
Page 2
to the Panel, which affirmed the ALJ’s order. The court of appeals affirmed the Panel’s order on November 24, 2004 and the claimant was unable to obtain further appellate review. The matter went to hearing and on October 10, 2006, another ALJ disagreed with the claimant’s assertion that she was not at MMI and denied her request for medical and disability benefits. The claimant sought review of the ALJ’s decision, but later abandoned her appeal.
The Colorado Supreme Court issued its decision in Williams v. Kunau, 147 P.3d 33 (Colo. 2006). This matter came on for hearing on the claimant’s subsequent application seeking ongoing TTD benefits and penalties based on the respondents’ failure to comply with the supreme court’s holding in Williams. The parties submitted competing motions for summary judgment. The ALJ noted that the claimant had attempted to impose upon the respondents, through administrative and appellate avenues, an obligation to obtain a follow-up DIME before allowing a final admission of liability to be filed, but to no avail. She determined that the claim, with a date of injury in 1998 and benefits last paid in 2003 pursuant to a final admission of liability, was closed. Nonetheless, the ALJ proceeded to consider whether the supreme court’s holding in Williams should be applied to the claim retrospectively. The ALJ decided that Williams applied only prospectively and, also, that the claim could not be reopened due to the passage of time. The ALJ further determined that principles related to issue and claim preclusion effectively barred the claimant from pursuing additional benefits. The ALJ therefore granted summary judgment in favor of the respondents and vacated the hearing set pursuant to the claimant’s application.
On appeal the claimant maintains that the final admission filed by the respondents following the authorized treating physician’s opinion of MMI did not close the case because the claimant was not sent back to the DIME physician for a follow-up examination and determination of MMI, consistent with the Colorado Supreme Court’s opinion i Williams. 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, to which the claimant objected. The ALJ ruled that the claimant had not timely reinitiated the DIME process within 30 days of when the insurer filed its final admission of liability. Therefore, the case 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 a final admission of liability, do not apply to a follow-up examination by a DIME physician after the treating physician’s second determination of MMI. The
Page 3
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 [final admission of liability] to close the case prior to returning the claimant to the independent medical examiner for a follow-up examination and determination of MMI.” Williams, 147 P.3d at 40.
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, 2003 or the May 12, 2003 final admissions of liability. Therefore, in contrast t Williams, the claimant in this case did not exercise her right to challenge the final admission of liability.
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 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 and the matter was therefore closed. In addition the claim was closed by the claimant’s exhaustion of the review proceedings when the Supreme Court denied the claimant’s petition for writ of certiorari.
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. Instead, we affirmed the ALJ’s determination the claim was closed and therefore denied further benefits.
Page 4
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 is also made clear that a claimant may contest the final admission of liability if the claimant feels entitled to more compensation. Moreover, the statute 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.
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 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. I 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 ineffective because it failed to comply fully with the requirements of § 8-43-203(2). In the present case the ALJ did not determine that the final admission failed to comply with § 8-43-203)(2). Rather, the claimant contends that the respondents failed to complete the DIME process as announced in Williams. Therefore, in the present case the respondents’ final admission of liability was not rendered invalid due to a 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 of the appeal on the grounds that the matter was closed by an uncontested final admission and in addition the claim was closed by the claimant’s exhaustion of the review proceedings when the Supreme Court denied the claimant’s petition for writ of certiorari, we need not address the issue of whether Williams should be applied retrospectively.
Page 5
IT IS THEREFORE ORDERED that the ALJ’s order dated February 28, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________________ John D. Baird
_______________________________ Thomas Schrant
Page 6
Marisa Feeley, 1626 N. Longmore Chandler, AZ, Century Communications Inc., Mark Lang, Colorado Springs, CO, Sentry Insurance Dan Jovanovich, WI, Alexander Ricci LLC, William A. Alexander, Jr., Esq., Colorado Springs, CO, (For Claimant).
Senter, Goldfarb, Rice LLC, Eric W. Truhe, Esq., Denver, CO, (For Respondents).
Page 1