W. C. No. 4-358-716.Industrial Claim Appeals Office.
July 10, 2007.
FINAL ORDER
The claimant and the respondents both seek review of an order of Administrative Law Judge Stuber (ALJ) dated March 1, 2007. The order denied the claimant’s claim for further temporary and permanent disability benefits and also denied the insurer’s claim for attorney fees. We affirm.
The ALJ’s pertinent findings of fact are as follows. On August 29, 1997, the claimant suffered an admitted industrial injury to her right shoulder. The claimant was placed at maximum medical improvement (MMI) on December 23, 1997. The claimant requested a Division Independent Medical Examination (DIME) and the DIME physician determined that the claimant was not at MMI. The parties agreed to change physicians to Dr. Tyler who after providing additional treatment placed the claimant at MMI. The respondents filed a final admission of liability (FAL) based on Dr. Tyler’s report. The claimant did not file an objection. However, the claimant did file an application for hearing. ALJ Friend entered a supplemental order on September 19, 2002 that determined a follow-up evaluation by the DIME physician was required before a FAL could be filed. The claimant, at her expense, returned for a follow-up DIME. The DIME physician determined that the claimant was at MMI and suffered a 17 percent whole person impairment. The respondents applied for a hearing to challenge the DIME rating. ALJ Stuber held a hearing and determined that the respondents had failed to prove by clear and convincing evidence that the impairment rating by the DIME physician was incorrect. The respondents petitioned to review and in an ordered dated March 12, 2004
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we held that because the claimant had not filed a Notice and Proposal for a DIME after the treating physician had determined MMI, the rating was binding upon the parties. Our order was not appealed and the claim was closed. The claimant did not file a petition to reopen. ALJ Stuber determined that the claimant was closed by virtue of our March 12, 2004 unappealed order and consequently denied and dismissed the claimant’s request for additional temporary total and permanent partial benefits and penalties. ALJ Stuber also denied attorney fees sought by the respondents on the basis that the issue of additional benefits was not ripe for hearing.
On appeal the claimant argues that the final admission filed by the respondents following the authorized treating physician’s opinion of MMI did not close the case because the claimant was not sent back to the DIME physician for a follow-up examination and determination of MMI.
The claimant cites Williams v. Kunau, 147 P.3d 33 (Colo. 2006) in support of this contention. In Williams the treating physician made a finding of MMI. The claimant requested and underwent a DIME examination at which it was determined he was not at MMI. The claimant received further treatment and the treating physician concluded that he was at MMI. The insurer filed a final admission of liability (FAL). The claimant objected to the FAL. The ALJ ruled that the claimant had not timely reinitiated the DIME process within 30 days of when the insurer filed its FAL; thus, the case was automatically closed pursuant to § 8-42-107.2(2)(b), C.R.S. 2006. The claimant appealed and the matter was eventually heard by the Colorado Supreme Court.
The claimant in Williams argued that the procedures required by §8-42-107.2(1)(b), C.R.S. 2006 to select the independent medical examiner, including the time limit following the insurer’s filing of an FAL, do not apply to a follow-up examination by a DIME physician after the treating physician’s second determination of MMI. The supreme court agreed and held that, once a claimant has successfully challenged a finding of MMI through the DIME process, that process remains open and, when the treating physician makes a second finding of MMI, the employer or insurer may not file an FAL to close the case prior to returning the claimant to the independent medical examiner for a follow-up examination and determination of MMI.
In our opinion Williams is distinguishable from the present case. I Williams the claimant objected to the final admission of liability and the question was whether the respondents could subsequently rely upon an authorized treating physician’s opinion to support that admission. The claimant in Williams successfully appealed our order and the decision of the court of appeals decision. Here the claimant did not appeal our order of March 12, 2004 that determined that because the claimant had not filed a Notice and Proposal for a DIME after the treating physician had determined MMI and the rating was
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binding upon the parties. In contrast to Williams, the claimant here did not exercise his right to challenge our order of Mach 12, 2004.
An order, whether resulting from an admission, an agreement, or a contested hearing constitutes an “award.” Thus, after such an award becomes final by the exhaustion of, or the failure to exhaust, review proceedings, no further proceedings to increase or decrease any such benefits beyond those granted by the order are authorized, unless there is an appropriate further order entered directing that those proceedings be reopened. Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780, 783 (Colo.App. 1991). The matter was closed by our un appealed order and there was no petition to reopen before the ALJ.
The claimant cites Leeway v. Harrison School District #2, W. C. No. 4-649-073 (October 13, 2006), contending that a final admission that does not comply fully with the requirements of § 8-43-203 is void. We note initially that in Leeway we determined that the admission there was not void from the outset merely because it contained an error. We affirmed the ALJ’s determination the claim was closed and therefore denied further benefits.
In the present case we do not find instructive our previous orders in which a defective final admission was held to be invalid and therefore ineffective in closing any issues. Here the issues and the claim were closed by an unappealed order. After an award becomes final by failure to exhaust review proceedings no further benefits may be awarded unless there is an appropriate order to reopen the proceedings. See Brown Root, Inc. v. Industrial Claim Appeals Office, supra. We perceive no reason to interfere with the ALJ’s order denying the claimant’s requests for temporary total and permanent partial disability benefits.
The respondents seek review the ALJ Stuber’s order upholding the denial of their request for attorney fees under § 8-43-211(2)(d), C.R.S. 2006. The respondents argue that in her application for hearing the claimant sought benefits that were not “ripe” for termination because the clam was closed and no further benefits could be awarded until the claim was reopened. The respondents contend that the lack of a petition to reopen was a legal impediment to a determination of further benefits and so the issues of temporary and permanent benefits were not “ripe.” The respondents argue that ALJ Stuber by determining that the claim was closed thereby established the legal impediment to the claim and therefore conclusively established the issues were not “ripe.” The respondents further argue that ALJ Stuber erred in reasoning that there was no legal impediment to considering the claimant’s argument tha Williams prevented this claim from closing.
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It is provided in § 8-43-211(2)(d) that:
If any person requests a hearing or files a notice to set a hearing on issues which are not ripe for adjudication at the time such request or filing is made, such person shall be assessed the reasonable attorney fees and costs of the opposing party in preparing for such hearing or setting.
Section 8-43-211(2)(d), provides for the imposition of costs and attorney fees against a person requesting or setting a hearing “on issues which are not ripe for adjudication.” The issue of “ripeness” under this statute was considered in BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997). In BCW Enterprises an ALJ ordered a change of physician and the respondents appealed. During the pendency of the appeal the claimant applied for a hearing on the issue of penalties against the respondents because the appeal was allegedly taken in “bad faith” and was delaying the provision of necessary medical treatment. Ultimately, the Court of Appeals resolved the appeal in the respondents’ favor. The respondents sought attorney fees and costs against claimant’s counsel under §8-43-211(2)(d) on the ground that the issue of penalties for a bad faith appeal was not “ripe” until the appeal was determined.
The BCW Enterprises court held an appeal is not in bad faith if there is a reasonable basis for challenging the award, and that it would be illogical to impose sanctions for a bad faith appeal if the appellant is successful on appeal. Consequently, the court stated “a request for penalties predicated on a claim that an appeal has been taken in bad faith must await the adjudication of that appeal before it becomes ripe for determination.” BCW Enterprises, 964 P.2d at 538.
Thus, BCW Enterprises stands for the proposition that an issue is not “ripe for adjudication” if, under the statutory scheme, there is a legal impediment to its resolution. The legal impediment in BCW Enterprises was the prospect of inconsistent results if the penalty claim was considered “ripe” for adjudication during the pendency of the appeal.
We agree with ALJ Stuber that when the claimant filed his application for hearing for additional benefits on he basis of the Colorado Supreme Court’s decision in Williams there was no legal impediment to adjudication of the issue of whether the claim was closed unde Williams. The present case is not one where the legal prerequisites to adjudication of an issue such as MMI and permanent impairment determinations were incomplete. We are not persuaded to set aside the ALJ’s denial of the insurer’s claim for attorney fees.
IT IS THEREFORE ORDERED that ALJ Stuber’s order dated March 1, 2007, is affirmed.
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INDUSTRIAL CLAIM APPEALS PANEL
_______________________
John D. Baird
_______________________
Thomas Schrant
William A. Alexander, Jr., Esq., Alexander Ricci, LLC, Colorado Springs, CO, (For Claimant)
David G. Kroll, Esq., Law Offices of Richard P. Myers, Denver, CO, (For Respondents)
Malcolm Chandler, Liberty Mutual Insurance Company, Englewood, CO.
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