IN THE MATTER OF THE CLAIM OF IMRE SZABO, Claimant, v. SCHLOSSER TOOL MACHINERY, Employer, and CONTINENTAL CASUALTY INSURANCE, Insurer, Respondents.

W.C. No. 4-105-220Industrial Claim Appeals Office.
February 23, 2004

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied temporary disability (TTD) benefits. The claimant contends the ALJ erroneously determined the issue was closed by the respondents’ filing of an uncontested final admission of liability (FAL). We disagree and, therefore, affirm.

In June 1991 the claimant suffered an admitted injury which required surgical treatment. In October 1994 the respondents filed a FAL which terminated TTD benefits effective July 17, 1994, based upon a finding of maximum medical improvement (MMI). The FAL admitted liability for permanent partial disability (PPD) benefits based on 29 percent impairment of the leg. The claimant timely objected to the FAL and asserted that future surgery was likely.

The claimant’s condition subsequently worsened and the respondents provided additional medical treatment. The respondents also paid additional TTD benefits for the period August 6 through August 17, 1997.

On April 28, 1998, the respondents filed a revised FAL which admitted liability for PPD benefits based on 29 percent impairment of the right leg. The claimant did not file a written objection to the April 1998 FAL but subsequently applied for TTD benefits commencing August 9, 2002.

The ALJ found the April 1998 FAL complied with former § 8-42-203(2), C.R.S. (Cum. Supp. 1990) and rejected the claimant’s testimony that he did not timely receive the FAL. The ALJ also found the April 1998 FAL was different from the October 1994 FAL because the claimant’s condition had worsened, the claimant had undergone further surgery, the claimant received additional TTD benefits and received “an apparently higher impairment rating.” Under these circumstances, the ALJ determined the claimant’s failure to file a timely written objection to the April 1998 FAL closed the issue of TTD benefits.

On review the claimant contends there is no substantial difference between the April 1998 and October 1994 FALs. He also contends his timely objection to the October 1994 FAL notified the respondents that he disputed MMI and did not agree with the 29 percent permanent impairment rating. Under these circumstances, the claimant contends it was redundant and contrary to our holding in Drinkhouse v. Mountain Board of Cooperative Education Services, W.C. No. 4-368-354 (February 7, 2003), for the ALJ to find that the claimant’s objection to the October 1994 FAL did not preserve the issue of TTD for further litigation.

The case is governed by the version of § 8-43-203(2)(b) which predates the 1998 amendments. [See 1998 Colo. Sess. Laws, ch. 313 at 1431, 2001 Colo. Sess. Laws, ch. 23 at 49-50]. The predecessor statute reads:

“An admission of liability for final payment of compensation shall include a statement that this is the final admission by the workers’ compensation insurance carrier in the case, that the claimant may contest this admission if the claimant feels entitled to more compensation, to whom the claimant should provide written objection, and notice that if the claimant does not contest the final admission in writing within sixty days of the date of the final admission the case will be automatically closed as to the issues admitted in the final admission. “

The statutory requirement to file a written objection is part of a comprehensive statutory scheme encouraging the prompt payment of claims without the necessity of litigation where there are no legitimate issues in controversy. Dyrkopp v. Industrial Claim Appeals Office 30 P.3d 821 (Colo.App. 2001). The filing of a written objection serves to notify the respondents that the claimant does not accept the respondents’ “final” position and alerts the respondents to issues which are not amenable to administrative closure without litigation. Drinkhouse v. Mountain Board of Cooperative Education Services, supra. Moreover, as we stated in Drinkhouse, requiring a specific objection to individual aspects of the FAL is consistent with the statutory scheme which contemplates the closure of specific issues addressed by the FAL. See Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo.App. 1993).

In Drinkhouse the claimant effectively objected to a FAL on the issue of future medical benefits. See Mitchell v. Office Liquidators Inc., W.C. No. 4-409-905 (December 29, 2000) (objection may be an application for hearing with timely certificate of mailing). The insurer subsequently agreed to provide future medical benefits and filed a revised FAL which admitted for future medical benefits but was otherwise identical to the previously filed FAL. The claimant filed a written objection to the revised FAL and then applied for a hearing on various issues including MMI and PPD. An ALJ found the issues of MMI and PPD were closed by the claimant’s failure to object to the earlier FAL on any issue other than future medical benefits and therefore, the claimant’s objection to the revised admission was immaterial. We affirmed the order on appeal.

Contrary to the claimant’s contention the ALJ’s order in this case is consistent with our conclusions in Drinkhouse. The claimant’s written objection to the October 1994 FAL arguably contested the determination of MMI, the consequent termination of TTD benefits and the respondents’ denial of further medical treatment. However, the respondents subsequently provided additional medical treatment and TTD benefits. As a result, the revised FAL provided for greater TTD and medical benefits than the October 1994 FAL. Because the revised FAL provided for a different amount of TTD, the claimant’s objection to the October 1994 could not fairly advise the respondents that the claimant was dissatisfied with the amount of TTD paid.

Further the April 28 FAL stated that it was a “final” determination of the amount of benefits to be paid in the claim, and thus, inherently denied liability for additional TTD benefits. See Dyrkopp v. Industrial Claim Appeals Office, supra.
Therefore, insofar as the claimant felt as he does now, that he was “entitled to more” temporary disability benefits § 8-42-203(2)(b) required the claimant to notify the respondents that he disagreed with their final position on the issue of TTD by filing a written objection to the revised FAL. Because the claimant did not file any objection to the revised FAL on the issue of TTD, the ALJ did not err in finding that the issue of TTD was closed.

Finally, we agree with the claimant that the record fails to support the ALJ’s finding that Dr. O’Brien “apparently” assigned a greater impairment rating than was assigned by Dr. Evans. However, the issue was the claimant’s entitlement to additional TTD not PPD. Under these circumstances, the ALJ’s error is harmless and shall be disregarded. Section 8-43-310 C.R.S. 2003 A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988) (error which is not prejudicial will be disregarded).

IT IS THEREFORE ORDERED that the ALJ’s order dated November 12, 2003, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ Kathy E. Dean
______________________________ Robert M. Socolofsky

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 February 23, 2004 by A.Hurtado.

Imre Szabo, 4325 Clare Ct., Colorado Springs, CO 80916

Schlosser Tool Machinery, 301 Bryant St., Denver, CO 80219-1638

Jody Nelson, Continental Casualty Insurance, P. O. Box 17369 T. A., Denver, CO 80217

William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)

John M. Lebsack, Esq. and Stephen G. Sparr, Esq., 950 17th St., #2100, Denver,

CO 80202 (For Respondents)