W.C. No. 3-952-034Industrial Claim Appeals Office.
February 27, 2001
ORDER
The claimant seeks review of an order of Administrative Law Judge Muramoto (ALJ) which denied her Motion to Strike the respondents’ Final Admission of Liability dated December 23, 1999. We set aside the order.
The pertinent facts are undisputed. The claimant suffered a compensable injury in 1989. The respondents filed several final admissions of liability. On June 22, 1999, the respondents filed a final admission for permanent partial disability benefits based on 15 percent whole person impairment. The final admission was accompanied by medical reports from Dr. Hall and Dr. Sandell. The claimant timely objected to the final admission.
On December 23, 1999, the respondents filed another final admission of liability. Among other things, the December 1999 admission provided for the payment of permanent partial disability benefits based upon 15 percent whole person impairment. The admission also asserted a social security offset. The claimant filed a late objection to the admission.
On August 22, 2000, the claimant requested the ALJ strike the December 1999 final admission on grounds it was not accompanied by medical documentation supporting the admission for permanent partial disability benefits as required by former § 8-53-102(2), C.R.S. (1989 Cum. Supp.), currently codified at § 8-43-203(2)(b), C.R.S. 2000.
The respondents argued they were not required to attached medical documentation supporting the December 1999 admission for permanent partial disability benefits because medical reports were attached to the previously filed final admission and the December 1999 final admission was only filed to address the issues of future medical benefits, and offsets.
In an order dated September 11, 2000, the ALJ summarily denied the Motion to Strike. We conclude the ALJ erred as a matter of law in denying the Motion.
Initially, we reject the respondents’ contention the ALJ’s order is interlocutory and not subject to review. Under § 8-43-301(2), C.R.S. 2000, an order is interlocutory and not reviewable unless it requires “any party to pay a penalty or benefits or denies a claimant any benefit or penalty.” United States Fidelity and Guaranty, Inc. v. Kourlis, 868 P.2d 1158 (Colo.App. 1994).
Here, the claimant contended the December 1999 final admission was invalid and, therefore, her failure timely to object to the final admission did not close the claim. The ALJ implicitly rejected these arguments in denying the Motion to Strike. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (Panel may consider findings which are necessarily implied by the ALJ’s order). Because it is undisputed the claimant failed timely to object to the December 1999 final admission, the ALJ’s order effectively closed the claim, and precluded the claimant from recovering any further benefits without presenting the proof required by § 8-43-303 C.R.S. 2000 to reopen the claim. See Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991). Consequently, the ALJ’s order denied the claimant benefits and is reviewable.
Next, we note the claimant’s Petition to Review designates the “entire files maintained by both the Division of Workers’ Compensation and the Division of Administrative Hearings.” The record transmitted to us for review apparently does not include the Division of Workers’ Compensation file. However, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the claimant requested the ALJ consider the entire Division of Workers’ Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(7), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers’ Compensation file in our review.
Former § 8-53-102, allows the respondents to close a claim by the filing of a final admission of liability which contains a notice that the claim will be automatically closed if the claimant does not timely contest the final admission in writing. The statute also provides that; “When the final admission is predicated upon medical reports, such reports shall accompany the final admission.” See also Rule IV(N)(1), 7 Code Colo. Reg. 1101-3 at 6.02.
In Reed v. Demetre Painting, W.C. No. 3-069-138 (January 15, 1993), we held that in the absence of the respondents’ full compliance with § 8-43-203(2), the claimant’s failure to formally object to a final admission does not operate to close the claim. In Reed, the respondents failed to attach the medical report upon which their final admission of liability for permanent disability benefits was predicated. Under these circumstances, we concluded the uncontested final admission did not operate to close the issue of permanent disability, and no petition to reopen was required before the ALJ could determine the extent of the claimant’s permanent partial disability. We adhere to our conclusions i Reed.
We perceive no appreciable distinction between the facts in Reed and the facts presented here. The respondents’ position is premised on the contention that § 8-43-203(2)(b) and the predecessor statute permit the filing of multiple final admissions and that the failure timely to object to any one of the admissions closes the claim. However, neither former § 8-53-102(2) nor § 8-43-203(2)(b) create distinct requirements for successive final admissions. To the contrary, the statute provides that whenever a final admission is predicated on medical reports, “such reports shall accompany the final admission.” (Emphasis added). Accordingly, we are not persuaded that the statutory requirement to attach medical reports supporting the admission of liability for permanent disability benefits is limited to the first final admission filed by the respondents.
Further, nothing in the respondents’ December 1999 final admission indicates the respondents intended to abandon their statutory right to close the issue of permanent partial disability if no timely objection was filed. In fact, the respondents expressly asserted before the ALJ that the December 1999 final admission was separate and distinct from the previously filed final admissions. Accordingly, the respondents’ contention that they were not required to attach medical records to the December 1999 final admission is inconsistent with their position that the absence of a timely objection to the December 1999 admission closed all benefit issues.
In addition, the respondents do not contest that their final admission for permanent disability benefits is predicated on medical reports. No medical reports were not attached to the December 1999 final admission. Consequently, we reject the respondents’ contention that their December 1999 final admission “substantially complied” with §8-43-203(2).
Moreover, because the final admission did not comply with §8-43-203(2) and the predecessor statute, we conclude the claimant’s failure timely to contest the admission did not trigger the automatic closure of the claim. The respondents’ further arguments have been considered and do not alter our conclusions.
In view of our disposition we do not address the claimant’s contentions that the ALJ’s order was motivated by her animosity towards the claimant’s attorney. Furthermore, we lack jurisdiction to review the ALJ’s failure to permanently recuse herself from all other claims involving the claimant’s attorney or schedule an evidentiary hearing on the issue. See Lewis v. Scientific Supply Co., 897 P.2d 905 (Colo.App. 1995) (ICAO authority limited to that provided by statute); see also In the Matter of Rauer, VR98-1(June 8, 1999), aff’d., Mullens v. Industrial Claims Appeals Office (Colo.App. No. 99CA1269, March 23, 2000) (order concerning potential vocational evaluations in future cases not reviewable).
IT IS THEREFORE ORDERED that the ALJ’s order dated September 11, 2000, is set aside.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
NOTICE
An action to modify or vacate this Order may be 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. 2000. 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 February 27, 2001 to the following parties:
Cindy L. Maloney, 1386 Nokomis Dr., Colorado Springs, CO 80915
Ampex Corporation, 600 Wooten Rd., Colorado Springs, CO 80915
National Union Fire Insurance, Brice Berkland, Crawford Co., 4570 Hilton Pkwy., #202, Colorado Springs, CO 80907
Steven U. Mullens, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
Joan A. Goldsmith, Esq., 6665 Delmonico, #D, Colorado Springs, CO 80919 (For Respondents)
BY: A. Pendroy