W.C. No. 4-534-398 4-534-399Industrial Claim Appeals Office.
November 14, 2003
ORDER OF REMAND
In these consolidated workers’ compensation cases the claimant seeks review of an order of Administrative Law Judge Felter (ALJ), dated July 16, 2003, which “denied and dismissed” all claims for workers’ compensation benefits in W.C. No. 4-534-398. We set the order aside and remand for further proceedings.
The procedural history of this case prior to the ALJ’s order of July 16, 2003, is set forth in our Final Order of February 3, 2003. In that order we affirmed an award of benefits in W.C. No. 4-534-399, a claim for a January 2002 injury to the claimant’s left upper extremity. However, in W.C. No. 4-534-398, a claim for injuries to the claimant’s abdomen and back on July 12, 2001, we set aside the ALJ’s award of temporary total disability (TTD) and medical benefits for treatment of the claimant’s back. Our statement of the facts from the February 3 order is incorporated herein.
With respect to the claim for benefits in W.C. No. 4-534-398, we agreed with the respondents’ argument that the ALJ exceeded his jurisdiction by overturning the finding of an authorized treating physician, Dr. Thiel, that the claimant reached maximum medical improvement (MMI) on July 26, 2001, and, contrary to the claimant’s contention, that the back pain was unrelated to the industrial injury. We specifically held the determination of MMI requires the treating physician to determine which conditions are causally-related to the industrial injury, and that the ALJ lacks authority to resolve a dispute concerning a treating physician’s finding of MMI unless it has been subjected to a Division-sponsored independent medical examination (DIME). See Town of Ignacio v. Industrial Claim Appeals Office, 70 P.3d 513 (Colo.App. 2002); Cordova v. Industrial Claim Appeals Office, 55 P.3d 186
(Colo.App. 2002).
However, we did not dismiss the claims for TTD benefits and medical benefits to treat the claimant’s back condition. As to these issues, we held the question of whether the back condition is related to the industrial injury “is within the scope of the DIME process” and remanded the matter for “further proceedings consistent with the views expressed herein.” (Final Order, Pp. 4-5). We note the claimant attempted to appeal this portion of our order, but the Court of Appeals determined our order was not final and reviewable and dismissed the appeal without prejudice.
After the court’s dismissal, claimant’s counsel sent a letter to the ALJ requesting that the ALJ enter an order denying the request for medical benefits to treat the back injury so that the “claimant may appeal this matter.” The claimant asserted the DIME process “is not a prerequisite where compensability has been denied.”
On July 16, 2003, the ALJ entered the order under review. The ALJ stated that “there was no request for a DIME AFTER Dr. Thiel [sic] opinion of MMI.” Therefore, the ALJ dismissed any and all claims for benefits in W.C. No. 4-534-398.
The claimant filed a petition to review in which she argues that the “order denies all benefits as if the claimant had lost the issue of compensability,” and “denies claimant due process of law because she is unable to have the opinions of Dr. Thiel reviewed.” The claimant failed to file a timely brief in support of these contentions. However, because they are reasonably specific, we address them.
As noted, our Final Order determined, the ALJ did not have any jurisdiction to address a dispute concerning the issue of additional medical benefits and TTD benefits without a DIME. In fact, §8-42-107(8)(b)(III), C.R.S. 2003, provides that “a hearing shall not take place until the finding of the independent medical examiner has been filed with the division.”
It follows that the ALJ had no jurisdiction to either grant or dismiss a claim for additional medical benefits without a DIME. To the contrary, the finding of the authorized treating physician, Dr. Thiel, is binding on the parties and the ALJ until a DIME physician is selected in accordance with § 8-42-107.2. Section 8-42-107(8)(b)(II), C.R.S. 2003.
Here, the ALJ purported to deny medical benefits, after a hearing, apparently based on Dr. Thiel’s determination that the claimant reached MMI. However, this determination is beyond the ALJ’s jurisdiction because there is no evidence that a DIME has ever occurred. When the matter was remanded, we envisioned that further proceedings would occur in which the claimant would request a DIME to challenge Dr. Thiel’s determination of MMI. The ALJ’s July order found the claimant has not requested a DIME, but does not determine the claimant’s time for requesting a DIME has elapsed under § 8-42-107.2(2)(a)(I), C.R.S. 2003. Thus, the ALJ’s denial of benefits is premature and the matter must once again be remanded for further proceedings consistent with the views expressed herein.
We recognize the claimant requested the ALJ to dismiss the claims for medical benefits in an attempt to circumvent the DIME procedure and obtain a “final order.” However, because the ALJ lacks jurisdiction to address this issue of additional benefits to cure the injury absent a DIME, the claimant cannot confer jurisdiction by waiver or estoppel. See Hasbrouck v. Industrial Commission, 685 P.2d 780 (Colo.App. 1984).
Finally, we reject the claimant’s assertion that the DIME procedures concerning MMI do not apply when the respondents contest liability. It is true the ALJ has jurisdiction to determine whether a compensable injury has occurred in the first instance. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). However, the DIME process controls the determination of MMI, including the issue of which conditions are or are not related to the compensable injury. Cordova v. Industrial Claim Appeals Office, supra (MMI inherently requires determination of cause of claimant’s condition). Section 8-42-107(8)(b) does not condition application of the DIME process on whether or not the respondents contest the compensability of the claim.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 16, 2003, is set aside, and the matter is remanded for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Copies of this order were mailed to the parties at the addresses shown below on November 14, 2003 by A. Hurtado.
Elizabeth Toledo-Zavala, 131 Detroit, Fort Morgan, CO 80710
Kathy White, Excel Corporation, 1505 E. Burlington, C. S. 4100, Fort Morgan, CO 80701
Cargill, Inc., c/o Margaret Johnson, Crawford Company, 2850 McClelland Dr., #1600, Fort Collins, CO 80525
Britton Morrell, Esq., 1305 8th St., Greeley, CO 80631 (For Claimant)
Kathleen Mowry Fairbanks, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)