W.C. No. 4-300-993Industrial Claim Appeals Office.
December 20, 1999
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which denied her claim for permanent partial disability benefits. Because we conclude the claimant was denied a fair opportunity to present evidence and confront adverse evidence, we remand for further proceedings.
On or about March 4, 1996, the claimant sustained the occupational disease of bilateral carpal tunnel syndrome. After undergoing surgery on each wrist, the claimant was released to return to work in August 1996. Approximately three days later she experienced neck pain, and the pain caused her to stop working on September 27, 1996. The claimant’s treating physician, Dr. Reicks, then diagnosed the claimant as suffering from a herniated cervical disc.
Dr. Reicks opined that the claimant’s cervical condition was causally related to her employment. In a report dated March 3, 1997, Dr. Reicks opined that the claimant had no impairment attributable to the carpal tunnel syndrome, but he assessed a 43 percent whole person medical impairment due to the claimant’s cervical condition.
The respondents requested a Division-sponsored independent medical examination (IME) on the issue of impairment. On July 13, 1997, the IME physician, Dr. Scott, found the claimant has whole person impairment attributable to her cervical condition. However, Dr. Scott apportioned 50 percent of the impairment to cervical spondylosis and stenosis caused by pre-existing rheumatoid arthritis. Thus, the final rating was 12 percent of the whole person. Significantly, Dr. Scott noted the claimant had “no acute injury at work,” and questioned “if any of her neck problem really is work related.” Dr. Scott also stated that “if there is a work related problem it should be a soft tissue disorder of the cervical spine.”
On or about October 22, 1998, the respondents filed a final admission of liability admitting for permanent partial disability benefits based on medical impairment of 12 percent of the whole person. On December 8, 1998, the claimant filed an application for hearing disputing the issue of permanent disability. On February 10, 1999, the respondents filed a response to the application contesting the “compensability of cervical pathology,” and denying that the claimant’s cervical condition arose out of and in the course of her employment.
On February 12, 1999, the claimant filed a motion to strike the response to application for hearing arguing that it was not timely filed. The claimant also argued the respondents were improperly attempting to withdraw their final admission of liability which, in effect, admitted that the claimant’s cervical condition was causally related to her employment. The respondents replied that the claimant was not prejudiced by the late filing, and that they were entitled to withdraw the final admission under principles announced in HLJ Management Group, Inc. v. Kim, 804 P.2d 250 (Colo.App. 1990). On February 23, 1999, the ALJ entered a written order which “approved and accepted” the respondents’ response to application for hearing. After entry of the February 23 order, but prior to the April 27, 1999, hearing, the parties took the depositions of Dr. Reicks and Dr. Scott. The transcripts of these depositions reflect extensive questioning concerning the cause or causes of the claimant’s cervical condition.
At the commencement of the April 27 hearing the ALJ and counsel for the parties discussed the issues to be considered. Counsel for the claimant indicated that she intended to overcome Dr. Scott’s 12 percent whole person impairment rating. Counsel for the respondents stated that the respondents were seeking to challenge the “compensability of the claimant’s cervical pathology or neck injury.” Counsel for the claimant then renewed her motion to strike the issue of compensability of the cervical condition, and again argued that the respondents were improperly attempting to withdraw the final admission of liability. The ALJ stated that he was persuaded, under the circumstances, “to preclude the issue of compensability for today’s hearing.” The ALJ then stated that he did not intend to rule on whether the respondents were improperly attempting to withdraw the admission of liability, but was instead making a “procedural ruling that the compensability of the cervical pathology will not be considered at the hearing today.” Thus, the ALJ concluded that the “sole issue for today’s hearing, and in modification to my earlier ruling, will be whether or not the claimant can overcome the Division IME by clear and convincing evidence.” (Tr. pp. 3-6).
On June 17, 1999, the ALJ entered specific findings of fact and conclusions of law. The ALJ found, based on Dr. Scott’s IME report and deposition testimony, that Dr. Scott “did not believe that the claimant’s cervical neck problems were caused by the conditions of claimant’s work or by any injury at work.” Thus, the ALJ concluded that Dr. Scott rated the claimant’s cervical impairment “in the event it was in fact determined that her cervical condition was causally related to her compensable injury.” Finally, the ALJ found the claimant failed to overcome Dr. Scott’s opinion concerning the cause of the cervical condition by clear and convincing evidence, and denied the claim for permanent disability benefits.
In reaching this result, the ALJ stated that the question of whether a particular component of the claimant’s overall impairment is caused by the industrial injury is an “inherent part of the rating process.” The ALJ stated that the parties litigated the issue of causation, and had questioned Dr. Scott and Dr. Reicks “extensively about the issue causation in their depositions.” (Conclusion of Law 7).
I.
On review, the claimant reiterates the argument that the ALJ was precluded from considering the cause of the claimant’s cervical impairment because the respondents admitted liability for cervical impairment in their final admission of liability. The claimant argues that once the final admission was filed the respondents could not withdraw it. We perceive no error.
Under § 8-43-203(2)(b), C.R.S. 1997 [significantly amended in 1998 for injuries arising on or after August 5, 1998, 199 Colo. Sess Laws, ch. 313, at 1431-1432], a case is “automatically closed as to the issues admitted” unless the claimant files an objection within 60 days of the date of mailing of the final admission of liability. Under § 8-43-203(2)(d), C.R.S. 1999, issues closed pursuant to subsection (2) may “only be reopened pursuant to section 8-43-303.” As the claimant recognizes, we have previously ruled that under the plain language of subsection (2) (b) respondents may not object to their own final admissions of liability. Rather, the right to object to a final admission of liability is granted solely to the claimant. Weber v. Mesa County Sheriff’s Department, W.C. No. 3-113-179 (May 28, 1998), aff’d., Mesa County Sheriff’s Department v. Industrial Claim Appeals Office, (Colo.App. No. 98CA1119, February 25, 1999) (not selected for publication).
However, we have declined to apply Weber in cases where the claimant files a timely objection to the final admission of liability, and the respondents subsequently seek prospective relief from the final admission. Fausnacht v. Inflated Dough, Inc., W.C. No. 4-160-133 (July 20, 1999). In Fausnacht we reasoned that if the claimant files a timely objection to the respondents’ final admission of liability the admitted issues remain “open” and the respondents may seek a prospective withdrawal of the final admission under HLJ Management Group, Inc. v. Kim, supra.
Here, as in Fausnacht, the claimant filed a timely objection to be respondents’ final admission of liability. Consequently, the issue of permanent partial disability remained open, and the respondents were not precluded from seeking a prospective withdrawal of the admission.
II.
The claimant next contends the ALJ denied due process of law by ruling on the “cause” of the cervical condition after indicating at the commencement of the hearing that the issue would not be determined until later. We agree with this argument.
Where an administrative adjudication turns on questions of fact, due process requires that the parties be apprised of all the evidence to be submitted and considered, and that they be afforded a reasonable opportunity in which to confront adverse witnesses and present evidence and argument in support of their positions. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). Thus, in Hendricks, the Court of Appeals ruled an ALJ denied due process of law by terminating the claimant’s temporary disability benefits on the ground the claimant had reached maximum medical improvement after the parties stipulated, at the commencement of the hearing, that the issue of maximum medical improvement was premature. The court stated that the ALJ’s “limited questioning” of the claimant concerning her physical condition was insufficient to rescind the stipulation “or to alert the claimant to the ALJ’s intention to disregard the stipulation and render a decision on maximum medical improvement.” Id. at 1077-1078.
Here, the ALJ expressly stated at the commencement of the hearing he would not rule on the “compensability of the cervical pathology.” Instead, the ALJ indicated that resolution of the issue would be reserved for a future hearing. Nevertheless, the ALJ’s June 17 order expressly determines the compensability of the cervical condition adversely to the claimant. Consequently, we conclude the claimant was denied due process of law because she was not apprised, prior to commencement of the hearing, that the ALJ intended to consider the cause of the cervical condition.
We recognize that during their depositions Dr. Reicks and Dr. Scott were questioned concerning their opinions on the cause of the claimant’s cervical problem. However, these depositions were conducted prior to the hearing, and at a time when the ALJ had issued a written order ruling, in effect, that the causation issue would be considered. We cannot ascertain what evidence the claimant might have introduced at the hearing had she been aware the cause of her cervical condition would be determined. Further, we cannot say that such evidence would necessarily have been irrelevant since the record indicates the causation issue turns, to some extent, on the claimant’s lengthy medical history.
In reaching our conclusion, we do not dispute that the issue of causation is inherent in the medical rating process. Therefore, the IME physician’s determination of causation is binding unless overcome by “clear and convincing evidence.” Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998). However, that does not preclude an ALJ from conducting a hearing to determine if a rating is in accordance with the applicable guidelines, while reserving for a later hearing the question of whether the impairment is causally related to the industrial injury. Indeed, our review of the record indicates the claimant justifiably understood the ALJ intended to bifurcate the proceedings in precisely this manner.
In light of this conclusion we need not consider the claimant’s remaining arguments. The matter must be remanded to afford the claimant an opportunity to present evidence concerning the cause of her cervical condition.
IT IS THEREFORE ORDERED that the ALJ’s order dated the June 17, 1999, is set aside, and the matter is remanded for further proceedings and entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Copies of this decision were mailed December 20, 1999 to the following parties:
Victoria Shoaf, 585 25 1/2 Rd., #4, Grand Junction, CO 81505
Manor Care, Inc., 711 S. 15th St., Grand Junction, CO 81501-4629
Royal Insurance Company, Gallagher Bassett Services, Inc., 7935 E. Prentice Ave., #305, Englewood, CO 80111
Susan Warren, I.M.E. Unit, Division of Worker’s Compensation — Interagency Mail
Joanna C. Jensen, Esq., 225 N. 5th St., #1010, P.O. Box 4859, Grand Junction, CO 81502 (For Claimant)
James R. Clifton, Esq., and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy