W.C. No. 4-425-162Industrial Claim Appeals Office.
March 31, 2004
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ) which determined the respondents failed to overcome the Division-sponsored independent medical examination (DIME) physician’s impairment rating. We affirm.
The claimant suffered compensable injuries in a motor vehicle accident. The claimant ultimately underwent a Division-sponsored independent medical examination (DIME). The DIME physician assigned 25 percent whole person impairment for range of motion deficits in the cervical spine, a C-6 cervical compression fracture, and bilateral carpal tunnel syndrome (CTS). The DIME physician subsequently amended his calculations and assigned 26 percent of the whole person. The respondents filed a Final Admission of Liability (FAL), dated May 7, 2002, for permanent partial disability benefits based on 25 percent. The claimant objected and filed an Application for Hearing (Application) dated May 26, 2002.
The certificate of mailing on the Application for Hearing did not indicate that a copy of the Application was sent to the respondent-employer. Further, the Application indicated that the claimant would call the Division of Administrative Hearings (Division) on June 11, 2002, to set the hearing. However, the claimant did not complete the setting as forth in the Application. Based on these two defects in Application the respondents moved to strike the Application for lack of jurisdiction. In an order dated September 30, 2002, the motion to strike was denied.
Giving the greatest weight to the opinions of the DIME physician and Dr. Hall, the ALJ then found the respondents failed to sustain their burden to overcome the DIME physician’s rating. Therefore, the ALJ awarded permanent partial disability benefits based on the DIME physician’s 26 percent whole person impairment rating.
I.
On review the respondents renew their contention that the claimant’s Application was defective because it was not properly served on the respondent-employer and the hearing was not timely set. Thus, the respondents argue the issue of permanent medical impairment was automatically closed by the FAL and the ALJ lacked jurisdiction to determine whether the DIME physician’s rating was overcome. We disagree.
Subject matter jurisdiction concerns a court’s authority to deal with the class of cases in which it renders judgment. Sanchez v. Straight Creek Constructors, 41 Colo. App. 19, 580 P.2d 827 (1978). Hence, a court will lack subject matter jurisdiction when an action is not timely filed pursuant to the deadlines established in a nonclaim statute, which shall include language indicating that the filing of the claim is either a condition to the claim itself or that the failure to file will deprive the court of jurisdiction over the claim. Public Service Co., v. Barnhill, 690 P.2d 1248, 1252 (Colo. 1984); Western Empire Constructors, Inc. v. Industrial Claim Appeals Office, 769 P.2d 1089 (Colo.App. 1989) Cornstuble v. Industrial Commission, 722 P.2d 448 (Colo.App. 1986).
Section 8-43-203(2)(b)(II), C.R.S. 2003, provides that issues admitted in a FAL are automatically closed unless within thirty days of the date of the FAL the claimant contests the FAL in writing and requests a hearing on any disputed issues that are ripe for hearing. It follows the timely filing of an objection and Application are jurisdictional prerequisittes to a hearing on permanent partial disability. See Peregoy v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 03CA0557, January 29, 2004).
However, unless the statute otherwise provides, the service of notice and other aspects of perfecting an application for hearing or an appeal are procedural, not jurisdictional requirements. Newman v. McKinley Oil Field Service, 696 P.2d 238 (Colo. 1984); Rendon v. United Airlines, 881 P.2d 482 (Colo.App. 1994); Colorado Department of Institutions v. Industrial Claim Appeals Office, 780 P.2d 72 (Colo.App. 1989). The Rules of Procedure, Part VIII(A)(1), Code Colo. Reg. 1101-3 at 21 (2002), provide that the Application for Hearing shall be filed with the Division on a prescribed form and shall be mailed to “all parties.” See also
Section 8-43-211(2)(b), C.R.S. 2003 (a hearing is requested by filing a written request with the Division, and parties shall mail a copy of the request to all parties at the time of filing). The rule also provides that the Application shall contain “[A] statement of the issue(s) to be determined at the hearing,” and “[A] statement setting forth the names and addresses of all witnesses to be presented at the hearing, or to be presented by deposition.”
Here, the claimant complied with § 8-43-203(2)(b). The Application was timely filed with the Division and gave notice to the respondent-insurer that the claimant contested the FAL and that the claimant sought a hearing on the issue of permanent partial disability. Thus, the fact that the Application was technically defective because it was not mailed to the respondent-employer did not deprive the ALJ of subject matter jurisdiction. Colorado Auto Body Inc. v Newton, 160 Colo. 113, 414 P.2d 480 (Colo. 1966).
Further, the Application was timely mailed to the attorney for the respondent-insurer and the Division sent a notice of hearing to all parties. At hearing, the respondent-insurer did not request a continuance and did not deny it had adequate notice to prepare for the hearing. (Tr. October 30, 2002, p. 14). The respondent-employer filed for bankruptcy and was subsequently, pursuant to an order dated December 8, 2003, dismissed from the claim. Therefore, we perceive no due process violation.
As argued by the respondents, Rule VIII(A)(3) states that “An application or response will not be accepted for filing unless it contains all information required by this rule.” In this case, the Division accepted the claimant’s Application for filing. This inherently reflects the Division’s determination that the Application satisfied the requirements of Rule VIII(A)(1).
Finally, § 8-43-207(1)(I), C.R.S. 2003, authorizes the ALJ to grant a reasonable extension of time for the taking of any action upon written motion and for good cause shown. Here, the ALJ found the claimant established good cause for failing to set the hearing on June 11 as indicated in the Application. (Tr. October 30, 2002, p. 25). The respondents’ arguments notwithstanding, the ALJ’s finding does not exceed the bounds of reason and therefore, is not an abuse of discretion. See Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986) (order based on exercise of discretion may not be set aside in the absence of an abuse of discretion). Therefore, the ALJ had jurisdiction to hear the issue of permanent partial disability regardless of the fact that the hearing was not set within the 10 day window contemplated by Rule VIII(B)(1).
In view of this disposition we do not consider the claimant’s contention that the issue of permanent partial disability was not closed because he did not timely receive the FAL.
II.
The respondents also contend the ALJ erred in failing to find the respondents overcame the DIME physician’s rating. In particular, the respondents contend the ALJ’s order does not resolve conflicts regarding the DIME report, and evidence the DIME failed to follow the American Medical Association Guides to the Evaluation of Permanent Impairment Third Edition, Revised (AMA Guides) and Level II accreditation course standards. The respondents also contend there is no evidence to support the DIME physician’s opinion that the claimant’s C-6 compression fracture is related to the industrial injury and the DIME physician incorrectly rated the claimant’s CTS. We reject these arguments.
The Workers’ Compensation Act requires that all physical impairment ratings be conducted in accordance with the AMA Guides. Section 8-42-101(3.7), C.R.S. 2003. Further, the DIME physician’s medical impairment rating is binding unless overcome by “clear and convincing evidence.” Section 8-42-107(8)(c), C.R.S. 200 ; Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). “Clear and convincing evidence” is evidence which proves that it is “highly probable” the DIME physician’s opinion is incorrect. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The clear and convincing evidence standard also applies to the DIME physician’s opinion on the cause of the impairment. This is true because causation is an inherent part of the diagnostic assessment which comprises the DIME process of rating permanent medical impairment Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590
(Colo.App. 1998).
The determination of whether the DIME physician’s opinion has been overcome is a question of fact for resolution by the ALJ. Consequently, we must uphold the ALJ’s finding if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003; Qual-Med, Inc. v. Industrial Claim Appeals Office, supra. The substantial evidence standard requires that we view the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert, 914 P.2d at 415.
The respondents’ essentially contest the ALJ’s assessment of the probative weight of the evidence. However, we have no authority to reweigh the evidence on review and, therefore, decline the resondents’ request to do so. See General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994).
Contrary to the respondents’ contentions the ALJ expressly resolved conflicts in the evidence based upon his credibility determinations. See Regional Transportation District v. Jackson, 805 P.2d 1190 (Colo.App. 1991). Further, the ALJ’s finding that the respondents failed to present persuasive evidence that it was highly probable the DIME physician’s opinions about the cause of the claimant’s CTS and C-6 compression fracture were incorrect, is supported by the DIME physician’s deposition testimony, the claimant’s testimony and the testimony of Dr. Hall. Further, Dr. Hughes 4 percent rating for a specific disorder of the cervical spine is consistent with the DIME physician’s rating for the compression fracture. The record also contains evidence that under the AMA Guides bilateral upper extremity impairment is to be rated separately, then converted to whole person impairment and then combined using the Combined Values Chart. (See Claimant’s Hearing Exhibit 3). Thus, the DIME physician’s amended rating from 25 percent to 26 percent is also supported by substantial evidence in the record. Under these circumstances, the respondents have failed to establish grounds which afford us a basis to set aside the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 19, 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, 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. 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 March 31, 2004 by A. Hurtado.
James Poyner, 1124 Dogwood, Tyler, TX 75701
Jim Lyon, Corporate Claims Manager, Philip Services, 5151 San Felipe, #1600, Houston, TX 77056
SRS of Dallas, c/o Marti Meyers, Crawford Company, 2850 McLelland Dr., #1600, Fort Collins, CO 80525
Patrick C.H. Spencer, II, Esq., 830 Tenderfoot Hill Rd., #320, Colorado Springs, CO 80906 (For Claimant)
Kent L. Yarbrough, Esq., P. O. Box 22833, Denver, CO 80222 (For Respondents)