W.C. No. 4-517-607.Industrial Claim Appeals Office.
May 25, 2004.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Mattoon which vacated the claimant’s application for hearing on a request for additional medical benefits because of an alleged worsening of condition. We reverse and remand for further proceedings.
The claimant suffered an admitted injury on September 3, 2001. The respondents filed a Final Admission of Liability (FAL) which terminated temporary disability benefits effective June 24, 2003, the date of maximum medical improvement (MMI). The FAL also denied liability for future medical benefits as allowed unde Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).
The claimant objected to the FAL and filed an application for hearing on several issues including “Grover medical/worsening-home care.” The respondents filed a motion to strike the “worsening” issue on grounds the claimant; 1) did not endorse the issue of MMI; 2) did not request a Division-sponsored independent medical examination (DIME) to dispute the finding of MMI; 3) did not file a petition to reopen with supporting medical evidence.
Implicitly relying on the respondents’ arguments ALJ Mattoon summarily granted the respondents’ motion and struck the issue of “worsening.” The claimant timely appealed. We agree with the claimant that ALJ’s order is not supported by the applicable law.
Respondents are required to provide medical benefits reasonably necessary to cure or relieve the effects of the industrial injury. See § 8-42-101(1), C.R.S. 2003; Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). This obligation continues until the claimant reaches MMI which is defined as the point in time when the claimant’s condition is “stable and no further treatment is reasonably expected to improve the condition.” Section 8-40-201(11.5), C.R.S. 2003 However, Grover v. Industrial Commission, supra, allows an award future medical benefits where there is substantial evidence in the record to support a determination that future medical treatment will be reasonable and necessary to relieve the effects of the industrial injury or prevent a deterioration of the claimant’s condition. Thus, an allegation the claimant’s condition has worsened inherently endorses the issue of MMI.
MMI is initially a medical determination to be made by an authorized treating physician, which is unless the party disputing MMI requests a Division-sponsored independent medical examination (DIME). Section 8-42-107(8)(b), C.R.S. 2003 Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995). However, the DIME provisions in § 8-42-107(8)(b) are not applicable where the claim for additional benefits is based upon the allegation of a worsened condition after MMI. This is true because the question of whether the claimant previously reached MMI is separate and distinct from the issue of whether the claimant’s condition has remained stable. See City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637
(Colo.App. 1997); Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995); El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993). Consequently, the claimant was not required to request a DIME to obtain a hearing on her claim for additional medical benefits due to a worsened condition. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
Section 8-43-203(2)(b)(II), C.R.S. 2003, provides that a FAL automatically closes all admitted issues if within thirty days after the date of the final admission, the claimant does not contest the final admission in writing and “request a hearing on any disputed issues that are ripe for hearing.” Subsection 8-43-203(2)(d), C.R.S. 2003, provides that if a “case is closed pursuant to this subsection (2), the issues closed may only be reopened pursuant to section 8-43-303.” However, an issue is not “closed” if the claimant has timely objected to an FAL and requested a hearing on an issue ripe for hearing. This is true because an issue is not final, nor does an FAL become an “award” subject to reopening unless the claimant has exhausted or failed to pursue appropriate review proceedings. Peregoy v. Industrial Claim Appeals Office, 87 P.3d 261, 263 (Colo.App. 2004).
Here, it is undisputed the claimant timely filed a written objection the FAL and an application for hearing on all issues ripe for determination. In particular, the claimant disputed the respondents’ failure to admit liability for Grover-type medical benefits for home care. Alternatively, the claimant requested home care services based on a worsening of condition after MMI. It follows the claimant effectively precluded the automatic closure of the issue of medical benefits for a worsened condition. Consequently, the claimant was not required to file a petition to reopen as a prerequisite to a hearing on the request for additional medical benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 15, 2004, is reversed and the matter is remanded for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
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David Cain
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Kathy E. Dean
Maria Rivas, Manzanola, CO, Katherine Handy, Pioneer Healthcare Center, Rocky Ford, CO, Nancy Kass, Royal SunAlliance, Englewood, CO, Lawrence D. Saunders, Esq., Pueblo, CO, (For Claimant).
Marsha A. Kitch, Esq., Evergreen, CO, (For Respondents).