W.C. No. 4-388-408.Industrial Claim Appeals Office.
June 16, 2006.
FINAL ORDER
The respondent seeks review of an order dated August 20, 2004 of Administrative Law Judge Mattoon (ALJ). The order determined that a previously entered order by ALJ Stuber finding an apportionment of 90 percent of the claimant’s occupational disease to non-work-related causes was not retroactive in effect and the respondent was responsible for 25 percent of the claimant’s disability and medical benefits as provided for in its admission of liability (FAL) until ALJ Stuber’s order reduced the responsibility to 10 percent. We affirm in part and reverse in part.
The claimant suffered a compensable occupation disease. The respondent filed an FAL on April 6, 2000, admitting liability for 25 percent of the medical benefits. The claimant’s medical treatment included a lung transplant costing approximately $250,000 performed on June 23, 2003.
A hearing was held before ALJ Stuber on the issues of reasonable and necessary medical benefits, apportionment of medical benefits and temporary total disability (TTD) benefits. ALJ Stuber issued an order dated October 27, 2003 (ALJ Stuber order) in which he found that the claimant’s occupational disease was attributable 10 percent to work-related exposures and 90 percent to non-work-related exposures. ALJ Stuber ordered, “Respondent shall pay for 10% of the bills for claimant’s treatment for his emphysema, including the lung transplant.” ALJ Stuber order at 7, ¶ 1.
The matter was heard before ALJ Mattoon on April 27, 2004. No testimony was presented at the hearing but a good deal of discussion occurred regarding the issues for determination. The parties agreed to file pleadings from which the ALJ was to make her determination. The claimant filed a Motion for Summary Judgment and Position Statement on the issue of whether the April 6, 2000 FAL required the respondent to pay 25 percent of the medical bills as admitted up until the time of the ALJ Stuber order. The respondent did not file a timely pleading. ALJ Mattoon found that the retroactivity of ALJ Stuber’s order was not an issue before ALJ Stuber. ALJ Mattoon granted the claimant’s request for an order that the April 6, 2000 FAL was binding until entry of ALJ Stuber’s order.
The respondent on appeal contends that pursuant to ALJ Mattoon’s order the respondent should only be held responsible for 25 percent of those medical bills that were presented to the respondent for payment prior to ALJ Stuber’s order, regardless of the date on which the underlying medical treatment was rendered. The claimant contends that pursuant to ALJ Mattoon’s order the respondent must be held responsible for 25 percent of those medical bills which were incurred as a result of treatment provided prior to entry of ALJ Stuber’s order. The parties agree that ALJ Mattoon’s order is ambiguous on this issue.
Section 8-43-301(2), C.R.S. 2005, provides that an ALJ’s order is final unless the party dissatisfied with the order files a petition to review within 20 days of the date of the certificate of mailing of the order. This requirement is jurisdictional and thus, the failure to file a timely petition to review precludes the Panel from reviewing the ALJ’s order. Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo.App. 1991). The claimant initially appealed ALJ Stuber’s order but subsequently withdrew his appeal. Therefore, ALJ’s Stuber’s order is final. In our view ALJ’s Stuber determination that the “Respondent shall pay for 10% of the bills for claimant’s treatment for his emphysema, including the lung transplant,” resolves the question presently identified by the parties as being at issue.
Insofar as ALJ Mattoon’s order may be read as finding that the respondent is liable to pay for more than ten percent of the medical bills for claimant’s treatment for his emphysema, including the lung transplant, we reverse. To hold otherwise would result in an anomalous situation in which the same reviewing body could be compelled to affirm conflicting orders from two different ALJ’s. To avoid such inconsistencies, the doctrine of collateral estoppel must be applied to preclude the entry of conflicting orders. Williams v. Industrial Claim Appeals Office 862 P.2d 1007 (Colo.App. 1993.).
It is unclear from the record whether there are medical bills that are the responsibility of the respondent but that do not relate to the claimant’s treatment for his emphysema. In the event there are such bills, we reject the respondent’s argument that under W.C. Rule of Procedure XVI, 7 Code Colo. Reg. 1101-3 at 22 the event that triggers a respondent’s responsibility for payment of medical benefits is presentation of the bill for payment. The respondent argues that based upon this theory it should be responsible for only ten percent of any medical bill received after entry of ALJ Stuber’s order. (Since the time of the hearing in this matter, the rules of procedure have been renumbered. The present version of Rule XVI, has in relevant part remained the same and is found in W.C. Rule of Procedure 16, 7 Code. Colo. Reg. 1101-3 at 81.) The section of the rule cited by the respondent deals with the issue of timely payment of medical bills, not the underlying obligation of the employer or its insurer to pay for treatment necessitated by the claimant’s occupational disease. Where the claimant sustains an occupational disease, the insurer on the risk at the time that medical expenses are incurred is liable for those medical benefits Royal Globe Insurance Co. v. Collins, 723 P.2d 731. In our opinion liability for medical benefits for an occupation disease attaches at the time the medical expenses are incurred, not when the bills were presented for payment. Thus we affirm ALJ Mattoon’s order as it relates to any medical bill that does not relate to the claimant’s treatment for his emphysema or his lung transplant.
IT IS THEREFORE ORDERED that insofar as the ALJ’s order dated August 20, 2004, may be read as finding that the respondent is liable to pay for more than ten percent of the medical bills for claimant’s treatment for his emphysema, including the lung transplant, the order is reversed,
IT IS FURTHER ORDERED that the ALJ’s order dated August 20, 2004, is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
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Curt Kriksciun
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Thomas Schrant
Larry Thomas, Elbert, CO, Victoria McColm, City of Colorado Springs, Colorado Springs, CO, W. Thomas Beltz, Esq., Daniel A. West, Esq. and Melissa L. Smith, Esq., Colorado Springs, CO, (For Claimant).
Gregory K. Chambers, Esq. and C. Sandra Pyun, Esq., Denver, CO, (For Respondent).