W.C. No. 4-197-352.Industrial Claim Appeals Office.
December 3, 2004.
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Felter (ALJ) which awarded additional medical benefits. We affirm.
This claim was previously before us and a brief history of the claim is necessary to understand the issues on review. In July 1991 the claimant suffered an admitted injury. Based upon an authorized treating physician’s opinions that the claimant reached maximum medical improvement (MMI) on July 10, 1995, with 24 percent impairment, the respondent filed a Final Admission of Liability (FAL) dated November 18, 1996, which terminated temporary disability benefits and admitted liability for permanent partial disability benefits. The claimant filed a timely objection to the FAL but did not file a Notice and Proposal for Selection of a Division Independent Medical Examiner (DIME) in accordance with §8-42-107.2 C.R.S. 2004.
In 1996 ALJ Rumler denied the claimant’s request for temporary disability benefits during the claimant’s receipt of job placement assistance. (See Exhibit EE). We affirmed the order on appeal. On December 26, 1997, the Court of Appeals affirmed our order. No further appeal was taken.
In 1999 Dr. Jones opined the claimant was no longer at MMI and recommended further medical treatment. The claimant applied for a hearing on the issues of temporary disability and medical benefits. However, the claimant did not file a petition to reopen.
Relying on Lobato v. Industrial Claim Appeals Office, 94 P.3d 1173
(Colo.App. 2003), cert. granted 03SC556(August 2, 2004), the ALJ determined that because the claimant failed to request a DIME within the time prescribed by § 8-42-107.2, the disputed issues were closed. Consequently, on April 11, 2003, the ALJ denied the requests for additional temporary disability benefits and medical benefits designed to cure the industrial injury. The claimant appealed the April 11 order.
On review we concluded that because the claim for additional benefits was based on an alleged worsening of condition after MMI the DIME provisions were not applicable. Consequently, we concluded the ALJ erred insofar as he denied the claim for additional benefits based on the claimant’s failure to request a DIME within the time period required by § 8-42-107.2. Therefore, we set aside the April 11 order and remanded the matter to the ALJ to determine whether the claimant suffered a worsening of condition which would entitle her to additional medical and additional temporary disability subject to the benefit cap in § 8-42-107.5 C.R.S. 2004.
On remand the ALJ found the claimant suffered a worsening of condition in 1999 and as a result needed additional medical treatment including surgery on May 21, 2003. Therefore, in an order dated June 30, 2004, the ALJ awarded additional medical benefits. The respondent timely appealed.
On review of the May 21 order, the respondent contends the claimant’s timely objection to the November 18, 1996, FAL was superseded by the final order of the Court of Appeals on December 26, 1997, which closed the claim. Therefore, the respondent contends the ALJ erred in awarding any additional benefits in the absence of an order reopening the claim.
Contrary to the claimant’s contention the respondent raised this argument on review of the ALJ’s prior order. Consequently, we reject the claimant’s contention the argument was waived. However, we are not persuaded the ALJ erred in failing to require the claimant to file a petition to reopen.
It is well established that a final order resulting from a contested hearing, which addresses benefits and which grants or denies benefits, constitutes an “award” for purposes of the reopening statutes. Burke v. Industrial Claim Appeals Office, 905 P. 2d 1 (Colo.App. 1994). When such an award has become final by the exhaustion of, or failure to exhaust administrative review proceedings the claimant is precluded from receiving any further benefits in the absence of a petition to reopen Burke v. Industrial Claim Appeals Office, 905 P. 2d 1 (Colo.App. 1994). However, the determination of whether an “award” has closed particular issues requires analysis of the nature of the issues addressed by the award. L.E.L. Construction v. Goode, 849 P.2d 876 (Colo.App. 1992) rev’d on other grounds 867 P.2d 875 (Colo. 1994).
The sole issue before ALJ Rumler in 1996 was the claimant’s entitlement to temporary disability benefits or rehabilitation maintenance benefits for the period April 1, 1996 to July 30, 1996. ALJ Rumler’s order dated September 9, 1996, determined the claim for rehabilitation maintenance benefits was barred by the $60,000 cap on combined temporary and permanent partial disability benefits in § 8-42-107.5. Therefore, the ALJ denied the request for rehabilitation maintenance benefits.
The Court of Appeals concluded that because the claimant had previously been paid $60,000 in combined temporary disability and permanent disability benefits for permanent impairment of 24 percent, the claimant was not entitled to additional temporary disability benefits during her receipt of job placement services from the respondent. Therefore, on December 26, 1997, the court affirmed ALJ Rumler’s denial of temporary disability benefits. However, the court expressly declined to consider the claimant’s assertion of a worsened condition.
It is undisputed the claimant did not appeal the December 26, 1997 order. Therefore, we agree with the respondent that the court’s order is a final order. However, on its face the order only closes the claimant’s entitlement to temporary disability benefits between April 1, 1996 to July 30, 1996.
Moreover, in Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991), the court held that an order which awards or denies a particular benefit or penalty but also contains an express reservation of jurisdiction over other issues does not close the claim. ALJ Rumler’s order of September 9 expressly reserved all other issues for future determination and the Court of Appeals did not disturb that reservation clause. Consequently, the claimant’s failure to appeal the December 26, 1997 court order did not trigger the reopening provisions of § 8-43-303. Under these circumstances, the claimant was not required to file a petition to reopen and we need not consider the respondent’s argument that the claim was barred from reopening under the statute of limitations in § 8-43-303.
The respondent also renews its contention that the claimant is procedurally barred from challenging the treating physician’s 1995 finding of MMI because the claimant failed to request a DIME within the time provided by § 8-42-107.2. In particular, the respondent’s dispute our conclusion that this claim is factually distinguishable from Lobato v. Industrial Claim Appeals Office, supra. The respondent’s arguments do not persuade us to depart from our prior conclusion that the DIME provisions do not apply to the facts of this claim.
The provisions in § 8-42-107.2 apply to the selection of a DIME physician and in turn, the DIME provisions apply to resolve disputes under § 8-42-107. Section 8-42-107 is limited to issues of MMI and medical impairment.
However, as we stated in our Order of Remand, the question of whether the claimant was at MMI on July 10, 1995, is separate and distinct from whether the claimant’s condition from the work-related injury remained stable after 1998. This is true because a claimant can reach MMI and suffer a subsequent deterioration to the point that she is no longer at MMI. See City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997); El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993). It follows that the DIME provisions in § 8-42-107 are not applicable where the claim for additional benefits is based upon the allegation of a worsened condition. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
The claimant in Lobato suffered an injury in 1992. In 1993 a treating physician placed the claimant at MMI and assigned a zero rating for permanent impairment. The insurer filed a FAL which denied permanent partial disability benefits. The claimant timely objected to the FAL but took no further action until 1995, when the claimant alleged a new injury. An ALJ found the claimant failed to prove a new injury. The claimant then sought to challenge the treating physician’s determination of MMI and zero permanent impairment by requesting a DIME. The court held the claimant was foreclosed from disputing an authorized treating physician’s finding of MMI and medical impairment rating by failing to request a DIME within 30 days of September 1, 1999.
Although the Lobato claimant alleged a compensable aggravation of the original industrial injury, he also challenged the treating physician’s opinion that he had zero permanent impairment in 1993. That challenge triggered the DIME provisions.
In contrast, this claimant did not deny she originally reached MMI on July 10, 1995, or that she had 24 percent whole person impairment in 1995. Rather, the claimant alleged that as a result of a subsequent worsening of her condition she was no longer at MMI and was entitled to additional medical benefits to cure or relieve the effects of the original injury.
Therefore, we adhere to our conclusion that this claim is factually distinguishable from Lobato.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 30, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Vicki Grogan, Highlands Ranch, CO, Michelle Horning, Exempla Healthcare, Inc., Wheat Ridge, CO, Jason Houston, Sedgwick Claims Management Services, Greenwood Village, CO, Neil D. O’Toole, Esq., Denver, CO, (For Claimant).
Katherine Markheim Lee, Esq. and Jonathan A. Decker, Esq., Denver, CO, (For Respondents).