W.C. No. 4-649-073.Industrial Claim Appeals Office.
October 13, 2006.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated June 7, 2006 that determined that the claim was closed and that therefore denied further benefits. We affirm.
A hearing was held on the issues of whether the claim was closed because of the claimant’s failure to object to the final admission of liability within the statutory period, and whether the Division-sponsored independent medical examiner was biased against the claimant’s attorney. Following the hearing the ALJ entered factual findings that may be summarized as follows. The claimant sustained a compensable injury on December 16, 2003, and following a Division-sponsored independent medical examination (DIME) the respondents filed a final admission of liability on October 10, 2005. On October 20, 2005 the Division informed the insurer by letter that the final admission contained an error in the calculation of the temporary total disability benefit rate, and the Division directed the insurer to file a corrected final admission. The insurer did so on October 26, 2005, correcting the error noted by the Division. On November 10, 2005 the claimant filed an objection to the final admission dated October 10, 2005, accompanied by an application for hearing on the issues of permanent partial disability benefits and maximum medical improvement. The ALJ found that the objection filed on November 10, 2005 was untimely with regard to the October 10, 2005 final admission. On November 23, 2005 the claimant filed an objection to the final admission dated October 26, 2005, along with an application for hearing endorsing the issues of permanent partial disability benefits and maximum medical improvement.
Based upon his factual findings, the ALJ concluded that the claim closed with respect to all issues admitted or denied in the final admission of October 10, 2005, with the exception of temporary total disability benefits. Accordingly, the ALJ denied the claimant’s request for further benefits.
The claimant appealed and argues that where, as here, a subsequent final admission is filed within thirty days of the initial final admission the second admission “supersedes” the first, and all issues remain open pending objection to the second final admission. We are unpersuaded that the ALJ erred and, therefore, we affirm.
The Workers’ Compensation Act contains a comprehensive scheme providing for the closure of issues. Section 8-43-203(2)(b)(II) provides the applicable procedure for objecting to and for closing issues admitted to or denied in a final admission. It requires a final admission to contain a notice to the claimant that he or she may contest the admission and that failure to do so will close the issues admitted. One of the purposes of the statute is to put the claimant on notice of the exact basis of admitted or denied liability, in order to permit the claimant to make an intelligent decision regarding whether to challenge the final admission. The section “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, 822 (Colo.App. 2001). The court of appeals has noted the purposes of the statute:
Section 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 FAL `if the claimant feels entitled to more compensation.’ Still further, it requires notice to the claimant `that the case will be automatically closed 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, 87 P.3d 261, 263
(Colo.App. 2004).
Here, we agree with the ALJ that the claimant’s failure to object to the October 10, 2005 final admission closed the issues that were admitted or denied and that were not amended in the later final admission. In Casias v. City of Longmont,
W.C. No. 357-048 (August 16, 2004) we ruled that a claimant’s failure to object to the issues of average weekly wage and permanent total disability benefits in a 1999 final admission closed those issues subject only to reopening in the future. Although the respondents filed a later final admission in 2004, it only admitted for further medical benefits and did not otherwise amend the 1999 final admission concerning the nature and amount of admitted liability for benefits. The ALJ found in Casias that the issues of permanent total disability and average weekly wage were closed by the 1999 final admission and we affirmed. See also Vigil v. Jefferson County, W.C. No. 3-993-995 (January 7, 2003) (written objection to disfigurement does not constitute an objection to other issues in the final admission); Campello v. Progressive Insurance Co., W.C. No. 4-205-461 (January 27, 2003) (objection to issues of permanent disability and average weekly wage was not sufficient to keep open penalties).
In Casias we relied in part upon Drinkhouse v. Mountain Board of Cooperative Education Services, W.C. No. 4-368-354
(February 7, 2003) affirmed Drinkhouse v. Industrial Claim Appeals Office, (Colo.App. No. 03CA0438, March 4, 2004) (not selected for publication). In 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 consider this case closely analogous to that o Drinkhouse. The Division’s correspondence to the respondents noting that there appeared to be an arithmetical, typographical, or clerical error with regard to the calculation of temporary total disability benefits did not invite a general reopening of all issues admitted or denied in the October 10th final admission. Rather, the Division sought a correction of the calculation regarding that specific issue and no other. Under these circumstances, the claimant’s failure to object in a timely fashion to the first final admission closed all issues except temporary total disability, which was voluntarily reopened pursuant to the corrected final admission.
Moreover, we believe that this 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. 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 statute 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 neither the Division nor an administrative law judge adjudicated or otherwise determined that the final admission failed to comply with the statute. Rather, as we read the Division’s letter, it noted a discrepancy in the final admission’s calculations and invited the respondents to correct the error by voluntarily reopening the issue by means of a corrected final admission. Hence, this was not a case in which the admission was void from the outset, and merely because it contained an error with respect to a single admitted issue did not render the admission invalid regarding other issues admitted or denied.
Finally, we reject the claimant’s argument that Workers’ Compensation Rule of Procedure 5-9(B) compels a contrary result. Rule 5-9(A) authorizes the Director to permit an insurer to amend an admission “for permanency, by notifying the parties that an error exists due to a miscalculation, omission, OR clerical error.” Rule 5-9(B) states that “[t]he period for objecting to a final admission begins on the mailing date of the last final admission.” In interpreting an administrative regulation the ordinary rules of statutory construction are applicable. Consequently, the words and phrases in the regulation should be given their plain and ordinary meaning. Further, the regulation should be read in connection with other provisions so that the regulation may be interpreted as a whole. Williams v. Colorado Department of Corrections, 926 P.2d 110 (Colo.App. 1996). The regulation should also be interpreted, to the extent possible, to effect a purpose which is consistent with the authorizing statute. See Riley Family Trust v. Hood, 874 P.2d 503
(Colo.App. 1994). As we read Rules 5-9(A) and (B), they permit the Director to grant relief to an insurer that has improvidently admitted for an erroneous amount of permanent disability benefits. Rule 5-9(B) applies to the amended final admission filed under subsection (A). In the present case, the Division’s correspondence did not address “permanency,” and the Director did not proceed under this rule. Accordingly, it has no application in this case.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 7, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ Curt Kriksciun ____________________________________ Thomas Schrant
Cathy Leewaye, Colorado Springs, CO, Harrison School District #2, Colorado Springs, CO, American Compensation Insurance Company, Beverly Fleming, Minneapolis, MN, Steven U. Mullins, Esq., Colorado Springs, CO, (For Claimant).
Thomas, Pollart, Miler Wetmore, Margaret Keck, Esq., Greenwood Village, CO, (For Respondents).