W.C. No. 4-686-013.Industrial Claim Appeals Office.
November 29, 2007.
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Broniak (ALJ) dated June 26, 2007, that determined that the claimant sustained a compensable injury to his right knee and that ordered the respondents to pay for medical treatment. We set aside the ALJ’s order and remand for further proceedings.
A hearing was held on the issues of the relatedness of the claimant’s right knee condition to his compensable accident of November 18, 2005, and the respondents’ liability for medical treatment. Following the hearing the ALJ entered findings of fact that for purposes of this order may be summarized as follows. The claimant sustained a compensable injury on November 1, 2005, when he was pinned against a trailer by a fork lift, which rolled over his foot. The claimant received medical treatment for his foot injury and for some period of time he used crutches to assist him in walking. On May 17, 2006, the claimant reported knee pain to Dr. Palu, which he reported he first noticed three to four months following the injury when he ceased using the crutches. The claimant also reported to Dr. Palu at this time that he may have twisted his knee during the compensable accident. He had previously injured his right knee in a compensable accident that occurred in September 2002. The claim resulting from that accident was closed and the claimant did not seek its reopening. A physician’s assistant, David Keller, subsequently diagnosed a medial meniscus tear and a complete ACL tear in the right knee. Dr. Kenneth Keller opined that the tear of the meniscus was “acute” and related to the 2005 injury. Dr. Lotman also examined the claimant and stated that the right knee complaints probably predated the 2005 injury. Dr. Keller also opined that the ACL tear
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probably occurred in 2002. Dr. Reinhard conducted an independent medical examination at the request of the respondents and stated that the claimant’s right knee condition was unrelated to the 2005 injury. He also stated that the residual symptoms from the 2002 injury manifested themselves more prominently after the 2005 injury forced the claimant to walk with an altered gait. Dr. Palu stated that the claimant reached maximum medical improvement on September 1, 2006. Dr. Palu also stated in the same report that her findings pertained only to the claimant’s foot injury and not to the knee condition. The claimant was referred to Dr. Thiel for an impairment rating. Dr. Thiel stated that he reached maximum medical improvement on July 31, 2006. The ALJ also found that the meniscus tear probably occurred as a result of the 2005 injury; however, the ACL tear probably predated the 2005 injury. The 2005 injury, however, aggravated the claimant’s preexisting condition including his preexisting ACL tear and his degenerative condition.
Based upon her factual findings the ALJ concluded that the claimant’s right meniscus tear was causally related to the 2005 injury and was therefore a compensable consequence of that injury. The ALJ ordered the respondents to pay for medical treatment related to the meniscus tear. The ALJ also concluded that because the 2005 accident aggravated the ACL tear the respondents were liable for medical treatment required by that condition.
The ALJ also ruled that she had jurisdiction to adjudicate the question of the claimant’s entitlement to medical benefits to treat the knee injury. Following receipt of the parties’ position statements the ALJ sua sponte directed the parties to file supplemental briefs addressing the question whether she had jurisdiction to rule in this matter. The ALJ noted in her order that by ordering supplemental briefs she contemplated that the parties would address the question whether she had jurisdiction to decide the question of causation of the knee problems in the absence of a Division-sponsored independent medical examination (DIME). The respondents filed a supplemental brief arguing that they had filed a final admission of liability on November 30, 2006, and that the claimant had not objected to it. Thus, they argued, the claim was closed and the ALJ lacked jurisdiction to adjudicate the claimant’s entitlement to medical benefits following the filing of the final admission.
In concluding that she had jurisdiction to adjudicate the relatedness of the claimant’s knee condition, the ALJ noted that both parties in their supplemental briefs referred to documents such as the final admission and to facts that had not been established by the factual record. As she construed the factual record, there was no basis for any factual findings regarding closure of the claim by operation of a final admission to which the claimant failed to object. Accordingly, the ALJ concluded that there was no legal impediment to the exercise of her jurisdiction.
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The respondents appealed the ALJ’s order and make several arguments, including the argument previously advanced that the ALJ was deprived of jurisdiction by their filing of the final admission and the resulting closure of the claim. Although we disagree with the respondents’ argument that the ALJ lacked jurisdiction because the claim was closed, we conclude that further proceedings are necessary to determine whether the possible finding of maximum medical improvement deprived her of jurisdiction to decide the issue of the relatedness of the claimant’s knee condition.
Pursuant to § 8-42-107(8)(b)(I), C.R.S. 2007, an authorized treating physician shall make the initial determination concerning the date of maximum medical improvement. Once an authorized treating physician makes a determination of maximum medical improvement, the termination of medical care is triggered and the ALJ lacks jurisdiction to conduct a hearing concerning the accuracy of the authorized treating physician’s determination until a DIME is conducted. Section 8-42-107(8)(b)(III), C.R.S. 2007; Story v. Industrial Claim Appeals Office, 910 P.2d 80
(Colo.App. 1995). The Colorado Supreme Court has noted that the DIME procedure is “the only way for an injured worker to challenge the treating physician’s findings — including MMI, the availability of post-MMI treatment, degree of non-scheduled impairments, and whether the impairment was caused by an on-the-job injury. . . .” Whiteside v. Smith, 67 P.3d 1240, 1246 (Colo. 2003) (emphasis added).
Consistent with this principle, we have stated that “once an authorized treating physician places the claimant at MMI, an ALJ lacks jurisdiction to award additional medical benefits for the purposes of curing the industrial injury and assisting the claimant to reach MMI unless the claimant undergoes a DIME.” Eby v. Wal-Mart Stores, Inc., W.C. No. 4-350-176 (February 14, 2001). See also Anderson-Capranelli v. Republic Industries, Inc., W.C. No. 4-416-649
(November 25, 2002) (following maximum medical improvement, “In the absence of a DIME the ALJ lacks jurisdiction to adjudicate a request for additional medical benefits to cure the effects of the injury.”) Toledo-Zavala v. Excel Corp., W.C. Nos. 4-534-398, 4-534-399 (November 14, 2003) (same); Cass v. Mesa County Valley School District, W.C. No. 4-629-629
(August 26, 2005) (“[I]f an ATP places the claimant at MMI, an ALJ lacks jurisdiction to award additional medical benefits to improve the claimant’s condition unless a DIME has been conducted on the issue of MMI.”).
This result is grounded in the principle that a treating physician’s finding of maximum medical improvement necessarily reflects the physician’s determination that no further treatment is reasonably expected to improve any of the compensable components of the injury, and the authorized treating physician’s opinion on the cause of the claimant’s condition is inherent to the physician’s determination of maximum medical improvement. See Egan v. Industrial Claim Appeals Office, 971 P.2d 664
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(Colo.App. 1998). We have previously stated that “[determining MMI necessarily requires a physician to ascertain the cause or causes of the claimant’s condition in order to decide whether the claimant warrants additional treatment for any work-related problem. Consequently, the issues of whether all work-related conditions are stable and do not require additional treatment are an inherent part of the DIME process. . . .”Ayala v. Conagra Beef Company, W.C. No. 4-579-880 (July 22, 2004).
It follows that if an authorized treating physician placed the claimant at maximum medical improvement here, then the ALJ did not have jurisdiction to hear the issue of the claimant’s entitlement to medical benefits to cure and relieve his right knee condition. The determination of maximum medical improvement by the authorized treating physician would have terminated medical benefits, subject to a showing unde Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988), and adjudication of that issue was only possible following a DIME.
Moreover, although it does not appear that prior to the hearing the respondents properly raised the question whether the finding of maximum medical improvement deprived the ALJ of jurisdiction, we cannot conclude that they waived the right to assert the issue. An objection to the ALJ’s jurisdiction may be raised at any point in the proceedings because jurisdiction may not be conferred by waiver, estoppel, or by any other equitable principle. Cramer v. Industrial Claim Appeals Office, 885 P.2d 318 (Colo.App. 1994) Hasbrouck v. Industrial Commission, 685 P.2d 780
(Colo.App. 1984). Consequently, the failure to raise the jurisdictional issue at the hearing does not preclude its assertion for the first time on appeal. Indeed, we note in this case that the issue was apparently first raised by the ALJ sua sponte when she ordered the parties to submit supplemental briefs.
Here, the ALJ recognized that the failure of the claimant to have obtained a DIME might have divested her of jurisdiction to resolve a dispute over the relatedness of the knee. Accordingly, she ordered the parties to brief that issue. Following submission of the supplemental briefs, however, the ALJ concluded that the record was inadequate to permit her to conclude that a final admission had been filed or that the claimant’s alleged failure to object to the admission closed the claim. In this regard the ALJ noted that two physicians had stated that the claimant was at maximum medical improvement, but that the actual date of MMI “is of little consequence for the purposes of this hearing. . . .” Findings of Fact, Conclusions of Law, and Order at 6, ¶ 5. The ALJ erred in this respect. Contrary to her reasoning, it was the attainment of maximum medical improvement that precluded the award or denial of medical benefits (other than Grover medical benefits) after that point in the claim.
However, we note that a factual dispute existed between the parties regarding
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whether the claimant was actually placed at maximum medical improvement by an authorized treating physician. For example, the claimant argued that Dr. Thiel was not an authorized treating physician, but rather was selected by the respondents specifically in order to obtain an opinion regarding maximum medical improvement. He also argued that Dr. Palu’s statement concerning maximum medical improvement was expressly restricted to the foot injury and that Dr. Palu reserved any opinion concerning the extent to which the knee should be considered a compensable component of the injury. If this were the case, then it is unlikely that Dr. Palu’s opinion would satisfy the requirement o Egan v. Industrial Claim Appeals Office that the authorized treating physician consider and state an opinion concerning every compensable component of the injury. Under these circumstances, the authorized treating physician’s opinion would not be an unqualified one that the claimant had reached maximum medical improvement regarding every compensable component and the ALJ would retain jurisdiction to adjudicate disputes concerning the claimant’s entitlement to medical benefits.
Finally, because of our remand in this matter it is unnecessary for us to address the respondents’ argument that the claim is closed and that any further award of medical benefits is precluded by that fact. As the ALJ correctly recognized, mere factual assertions made by respondents regarding closure may not substitute for evidence which is not in the record. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995) Subsequent Injury Fund v. Gallegos, 746 P. 2d 71 (Colo.App. 1987). In this regard we note that we have previously held that failure to raise the argument that an issue was closed by the filing of a final admission constitutes an affirmative defense which is waived if not timely raised. We analogized the issue of closure to such affirmative defenses as res judicata and “other procedural defenses which serve to bar a claim.” Se Stubbs v. Choice Hotels International, W.C. No. 4-229-627 (November 31, 2003); Winters v. Cowen Transfer and Storage, W.C. No. 4-153-716
(December 28, 1995), citing Kersting v. Industrial Commission, 39 Colo. App. 297, 567 P.2d 394 (1977) (statute of limitations for filing claim is not jurisdictional and may be waived if not timely raised). See also Crocker v. Colorado Department of Revenue, 652 P.2d 1067 (Colo. 1982).
On remand the ALJ should resolve the factual disputes concerning whether an authorized treating physician determined that the claimant reached maximum medical improvement with regard to all the compensable components of the injury. If he did reach that status, then the ALJ had no jurisdiction to award medical benefits other than those pursuant t Grover v. Industrial Commission. Following her consideration of this matter on remand, the ALJ should enter another order resolving the disputed issues. We note that the ALJ is authorized to conduct further hearings if in her discretion she considers that appropriate.
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IT IS THEREFORE ORDERED that the ALJ’s order dated June 26, 2007, is set aside and the matter is remanded for further proceedings and entry of another order consistent with the foregoing.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Curt Kriksciun
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JAMES WESSELS, CO.
WESTERN SUGAR COOPERATIVE, CO, ACE AMERICAN INSURANCE, Attn: EVELYN RADMACHER, PORTLAND, OR, LAW OFFICE OF HELENA SCHULTZ, Attn: HELENA SCHULTZ, ESQ., BRUSH, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK, P.C., Attn: ERICA A WEBER, ESQ., DENVER, CO, (For Respondents).
ESIS PORTLAND WC CLAIMS, Attn: DEBBIE HOPKINS, TAMPA, FL.