W.C. No. 4-421-759Industrial Claim Appeals Office.
May 3, 2004
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) insofar as it held the claimant was at maximum medical improvement (MMI) and upheld an order of a Prehearing-Administrative Law Judge (PALJ) “striking” the report of a Division- sponsored independent medical examination (DIME) physician. The respondents challenge the ALJ’s order insofar as it requires them to pay temporary total disability benefits. We affirm.
This matter is before us for the second time. Our order of September 16, 2002, contains a statement of facts and that statement is incorporated herein. Our order set aside the ALJ’s supplemental order dated May 21, 2002, insofar as that order held the ALJ lacked jurisdiction to resolve a dispute concerning MMI. (The Supplemental Order was substantially the same as an order entered December 14, 2001). Specifically, we held the ALJ’s finding that the claimant did not timely request a DIME to dispute the respondents’ final admissions of liability (FAL) filed in July and August 2001 did not preclude the ALJ from resolving a factual dispute between authorized treating physicians (ATP) concerning whether or not the claimant reached MMI. We also held the respondents are subject to a penalty for violation of Rule of Procedure IX (C)(1)(a), 7 Code Colo. Reg. 1101-3 at 34, because the FALs did not include a written statement of an ATP placing the claimant at MMI. More specifically, we held that the undisputed evidence was that Dr. Campbell was not an ATP. Consequently, we remanded the matter for a determination of the amount of penalties to be imposed.
On remand, the ALJ entered an order dated February 18, 2002. This order was entered after the decision of the Court of Appeals in Town of Ignacio v. Industrial Claim Appeals Office, 70 P.3d 513 (Colo.App. 2002). In Town of Ignacio, the court held that under the current version of §8-42-107(8)(b)(I) (II), C.R.S. 2003, an ALJ does not have jurisdiction to resolve conflicts between ATPs concerning whether or not the claimant has reached MMI. Rather, if one ATP places the claimant at MMI, the issue is then subjected to the DIME process. However, the court also held an ALJ may resolve ambiguities in an ATP’s alleged finding of MMI without requiring a DIME to be conducted.
In the February 18 order, the ALJ found that it was a “reasonable inference” from Dr. Danylchuk’s March 20, 2001, note referring the claimant to Dr. Campbell for a rating that Dr. Danylchuk believed the claimant was at MMI. Indeed, the ALJ found the claimant “was at MMI on March 20, 2001.” (Findings of Fact 2, 19).
The ALJ further found that Dr. Campbell, who issued the rating on which the FALs were based, was not an ATP. Consequently, the ALJ concluded the report of Dr. Campbell, which was attached to the FALs, could “not act to terminate temporary total disability” and ordered the payment of TTD benefits from April 27, 2001 (a date designated by the claimant).
Next, the ALJ declined to reverse an order of a PALJ, dated March 13, 2002, which struck the report of a DIME physician. The record reflects the claimant requested a DIME, underwent the examination in January 2002, and a report was issued in February 2002. The respondents moved to strike the report on grounds that in the order dated December 14, 2001, the ALJ had found the claimant did not timely contest the FALs by filing a notice and proposal to select a DIME physician within the time limits established by § 8-42-107.2, C.R.S. 2003. The ALJ reserved all issues not specifically decided.
I.
On review, the claimant advances two related contentions concerning the ALJ’s rulings on the issue of MMI. The claimant argues the ALJ exceeded her jurisdiction insofar as the ALJ found the claimant reached MMI on March 20, 2001. Essentially, the claimant argues the ALJ could not determine MMI, she could only decide as a matter of fact whether Dr. Danylchuk, acting as an ATP, placed the claimant at MMI. It follows, according to the claimant’s logic, that initiation of the DIME process was premature until the ALJ ruled on the factual issue, and the time for filing a notice and proposal to select a DIME could not have run. Therefore, the claimant reasons it was erroneous for the PALJ to strike the DIME report on the theory that the notice and proposal were not timely filed.
The respondent argues the claimant cannot challenge the ALJ’s finding that the claimant reached MMI on March 20, 2001, because the claimant requested the finding. According to the respondent, there has been a “judicial finding” of MMI and the claimant is estopped to deny it. The respondents also argue the claimant has launched an impermissible “collateral attack” on the ALJ’s December 14 finding that the claimant did not file a timely notice and proposal to select a DIME. Thus, it is the respondents’ position that the claimant is not entitled to TTD benefits after March 20, 2001, when they were terminated under the FALs and in accordance with the law. We agree with the claimant’s theories.
This case is complicated by the fact that the Court of Appeals issued its decision in the Town of Ignacio case after our order remanding this case to the ALJ, but before the ALJ entered her order on remand. The effect of the court’s opinion was to vitiate our legal reasoning which supported a remand to resolve the dispute between ATPs on the issue of MMI. The ALJ correctly recognized that the court’s ruling was binding insofar as it applies to the facts of this case.
We agree with the claimant that the ALJ “lacked jurisdiction” to determine whether the claimant was or was not at MMI. MMI is determined, in the first instance, by “an authorized treating physician.” Section 8-42-107(8)(b)(II). An ATP’s finding of MMI is binding on the parties and the ALJ unless and until the claimant undergoes a DIME. Section 8-42-107(8)(b)(III), C.R.S. 2003 (hearing on MMI not permitted until DIME physician’s finding is filed with the division). Thus, an ALJ lacks jurisdiction to resolve the issue of MMI until the finding of the DIME physician is filed. However, the ALJ may resolve ambiguities in an ATP’s opinions concerning MMI without requiring the claimant to undergo a DIME Town of Ignacio v. Industrial Claim Appeal Office, supra.
Thus, the ALJ’s finding of fact that, based on all the evidence, the claimant was “at MMI on March 20, 2001,” is erroneous as a matter of law. The ALJ had no jurisdiction to determine whether the claimant was or was not at MMI. The ALJ was restricted to resolving the ambiguity in Dr. Danylchuk’s referal to Dr. Campbell for a medical impairment rating.
It follows that we reject the respondents’ argument that the claimant is precluded from receiving TTD benefits because there has been a “judicial determination” that the claimant reached MMI on March 20. All the ALJ could do under the circumstances of this case was determine whether the claimant had been placed at MMI by an ATP.
Next, we agree with the claimant that she is not precluded from challenging the MMI date established by Dr. Danylchuk through the DIME process. The crux of this issue is the finding of the ALJ in her order of December 14, 2001, and the PALJ’s order of March 13, 2002, that the claimant did not file a timely notice and proposal to select a DIME under § 8-42-107.2(2)(b), C.R.S. 2003 (claimant has 30 days from mailing or delivery of FAL to request a DIME to challenge ATP’s finding of MMI). However, we conclude the requirement to request selection of a DIME was not triggered with the filing of the FALs because there was a legitimate factual dispute concerning whether or not the claimant had been placed at MMI by an ATP.
Our decision in Briley v. K-Mart Corp., W.C. No. 4-494-519 (March 12, 2003), is pertinent. In Briley, the ATP issued a report placing the claimant at MMI on February 21, 2001. The respondents filed an FAL based on the report and the claimant requested a DIME. However, on January 28, 2002, the ATP “withdrew” the finding of MMI and the claimant requested reinstatement of TTD benefits. A hearing was held and the ALJ found the ATP issued ambiguous and conflicting opinions, but resolved the conflict by finding that the ATP did not place the claimant at MMI. Thus, the ALJ ordered reinstatement of TTD benefits. The respondents appealed arguing that the “ALJ exceeded his jurisdiction by making an independent determination of MMI after the DIME process had been initiated.” In affirming the order, we stated the following:
With one exception which does not apply here, the DIME process is not triggered until the authorized treating physician places the claimant at MMI. Consequently, where the question is disputed, the ALJ’s determination of whether the treating physician has placed the claimant at MMI is a necessary prerequisite to the applicability of the DIME procedures. Indeed, the parties cannot determine whether to `dispute’ the authorized treating physician’s determination of MMI until the parties know the nature of the treating physician’s opinion. It follows that we reject the respondent’s contention that the ALJ lacked jurisdiction to determine whether Dr. Anderson-Oeser found the claimant to be at MMI for purposes of terminating temporary total disability under § 8-42-105(3)(a), C.R.S. 2002 (temporary disability benefits terminated when the claimant has reached MMI).
Moreover, § 8-42-107.2 governs the selection of a DIME physician to “resolve disputes arising under section 8-42-107.” By its plain and ordinary meaning, a dispute concerning ambiguities in a treating physician’s determination of whether the claimant has reached MMI is not a dispute under § 8-42-107. See Anheuser Busch, Inc. v. Industrial Claim Appeals Office, 28 P.3d 969 (Colo.App. 2001) (rules of statutory construction require that words to be given [sic] their plain meaning); cf. Calvillo v. Intermountain Wood, W.C. No. 4-462-297 (September 24, 2002) (ALJ may resolve factual dispute concerning ambiguity in treating physician’s impairment rating without DIME).
It would be inefficient and financially burdensome for a party to incur the cost of a DIME to contest a treating physician’s determination of MMI if it were subsequently determined that the treating physician did not place the claimant at MMI. This is contrary to the legislative goal of “assuring the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers.” Section 8-40-102, C.R.S. 2002. In fact, an ALJ’s resolution of a factual dispute concerning whether an authorized treating physician placed the claimant at MMI may obviate the need for a DIME. Thus, we decline to infer the General Assembly intended that the filing of a request for a DIME precludes an ALJ from resolving a factual dispute concerning whether the treating physician placed the claimant at MMI.
It follows that we reject the conclusion of the PALJ, and the ALJ’s subsequent concurrence, that the claimant did not timely request a DIME. Indeed, the request for a DIME was premature. Further, we reject the respondents’ argument that the claimant is estopped from raising these issues or has waived the right to raise them. The fact that the ALJ made a “judicial determination” of MMI, even if it was at claimant’s request, did not preclude the claimant from raising the jurisdictional issue. Subject matter jurisdiction cannot be conferred by consent of the parties or by estoppel and may be raised at any stage of the proceedings. See Hasbrouck v. Industrial Commission, 685 P.2d 780 (Colo.App. 1984). The ALJ could not “judicially determine” MMI, the ALJ could only determine whether the ATP placed the claimant at MMI.
Neither does collateral estoppel bar the claimant’s arguments. The respondents assert that the “claimant did not appeal the ALJ’s previous order [December 14, 2001, May 21, 2002] that the DIME was not timely applied for.” Therefore, the respondents assert the claimant “cannot attempt to wage a collateral attack on that order at this time.” However, the claimant argued prior to the December 14 order that he was not at MMI because there was ambiguity in Dr. Danylchuk’s referral to Dr. Campbell and the referral did not establish a date of MMI, and because the ALJ failed to resolve conflicts in the opinions of multiple ATPs. We agreed with the latter argument, albeit incorrectly in light o Town of Ignacio, and remanded for resolution of the conflict. In so doing we necessarily set aside that portion of the December 14 order which determined the ALJ lacked jurisdiction to consider the MMI issue and resolve the conflict. Our order was not final and appealable with respect to this matter because it did not award any benefits or require the respondents to pay any. Section 8-43-301(2), C.R.S. 2003; Ortiz v. Industrial Claim Appeals Office, 81 P.3d 1110 (Colo.App. 2003). Because there was no final adjudication on the merits concerning the issue of MMI and TTD benefits, the ALJ’s December 14 order has no collateral estoppel effect with respect to the February 18, 2003, order. See M M Management v. Industrial Claim Appeals Office, 979 P.2d 574 (Colo.App. 1998).
II.
The respondents contend they should not be obligated to pay TTD benefits because the ALJ found that Dr. Danylchuk placed the claimant at MMI. They also assert the claimant should not be allowed to raise the issue that the FALs were insufficient to terminate TTD benefits because the FALs were not accompanied by the report of an ATP placing the claimant at MMI. We perceive no error.
Rule of Procedure IX (C)(1)(a)permits the unilateral termination of TTD benefits by filing an admission of liability if the admission is accompanied by “a medical report from an authorized treating physician.” Section 8-43-203(2)(b)(II), provides for the filing of a final admission of liability, but states if a final admission “is predicated upon medical reports, such reports shall accompany the final admission.”
Here, as we held in our prior order, the FALs filed by the respondents were not accompanied by the report of an ATP placing the claimant at MMI. Instead, the admissions included only the report of Dr. Campbell, and the ALJ found on substantial evidence that Dr. Campbell is not a treating physician. Town of Ignacio v. Industrial Claim Appeals Office, 70 P.3d at 515 (an ATP does not include a physician retained merely for the purpose of providing a disability rating). Consequently, the FALs were improper and could not serve to terminate the claimant’s TTD benefits. See Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 18 P.3d 790 (Colo.App. 2000). Further, as the ALJ found, the FALs were not accompanied by the requisite medical reports, and could not serve to close the claim. See Maloney v. Ampex Corp.,
W.C. No. 952-034 (February 27, 2001).
We do not agree with the respondents that this argument was waived because it was not presented at the prior hearing. The claimant’s Rule IX penalty argument was clearly based on the assertion that the FALs were improper because they did not contain the report of an ATP lacing the claimant at MMI. Implicit in this assertion is the legal position that the FALs were not sufficient to terminate TTD benefits. Moreover, resolution of the issue was one of law rather than fact. At the second hearing, and thereafter, the respondents were given ample opportunity make argument concerning the proper application of §8-43-203(2)(b)(II), and the legal effect of their failure to include the medical report in the FALs. Thus, the respondents were not unfairly prejudiced by consideration of this issue and we perceive no abuse of discretion in the ALJ’s decision to rule upon it. Renaissance Salon v. Industrial Claim Appeals Office, 994 P.2d 447 (Colo.App. 1999) (ALJ has wide discretion in the conduct of evidentiary proceedings). Rule of Procedure VIII (A)(4), 7 Code Colo. Reg. 1101-3, (ALJ may add issue after filing of application for good cause shown). Finally, we have already rejected the argument that there was a “judicial determination” of MMI which justifies the termination of TTD benefits. As we held, the ALJ could not determine MMI, she could only determine that an ATP placed the claimant at MMI.
III.
The claimant argues the ALJ should have awarded penalties for a violation of Rule IX pursuant to our order of remand. We understand the ALJ to have reserved determination of this issue until a later date. Consequently, we find no error.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 18, 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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2003. 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 order were mailed to the parties at the addresses shown below on May 3, 2004 by A. Hurtado.
Marie Pacheco, 2503 Cheyenne, Pueblo, CO 81003
Angelo Patti, Patti’s Inc., P. O. Box 101621, Denver, CO 80250
Mid Century Insurance Co., Kay Rakow CR, 7535 E. Hampden Ave., #300, Denver, CO 80231
Lawrence D. Saunders, Esq., 125 W. “B” St., Pueblo, CO 81003 (For Claimant)
Chris Forsyth, Esq., 1801 Broadway, #1500, Denver, CO 80202 (For Respondents)