Opinion
W.C. No. 4-518-876.
November 2, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) that determined the issues of permanent total disability benefits and medical benefits after maximum medical improvement (MMI) were closed by the respondents' final admission of liability (FAL). The claimant also seeks review of an order of Administrative Law Judge Felter that determined that the claimant had failed to overcome a Division-sponsored independent medical examination (DIME). We affirm both orders.
The claimant suffered an admitted industrial injury and underwent a DIME. The DIME physician placed the claimant at MMI and rated the claimant's permanent medical impairment. The respondents filed an FAL dated June 20, 2003 based on the DIME physician's report.
The claimant timely filed an objection to the admission and filed an application for hearing endorsing several issues. The issues of permanent total disability benefits (PTD) benefits and medical benefits after MMI were not endorsed as issues for determination at hearing. A series of applications for hearings were filed but for various reasons no hearing was set. On February 4, 2004 the claimant filed another application for hearing endorsing the issues previously listed and, for the first time, endorsing the issues of permanent total disability benefits and medical treatment after MMI. The respondents filed a motion to strike the issues of permanent total disability and medical benefits after MMI arguing that those issues were ripe for determination at the time of filing of respondents' FAL and that the claimant had waived his right to litigate those issue by failing to endorse them on his initial application for hearing timely filed on July 16, 2003.
ALJ Friend entered an interlocutory order dated March 1, 2004 which determined that the issues of PTD and medical benefits after MMI were closed and struck them as issues to be heard. A hearing was held before ALJ Felter on April 26, 2005 on the issues of the claimant's challenge to the DIME physician's determination on MMI and additional temporary total disability benefits. ALJ Felter in an order dated May 18, 2005 found the claimant had failed to overcome the DIME physician's opinion on MMI by clear and convincing evidence.
The claimant does not challenge ALJ Felter's finding but argues that ALJ Friend erred because the claimant's timely challenge to the DIME's opinion on MMI rendered the issue of PTD and medical treatment after MMI "not ripe" until that dispute was resolved. Therefore, the claimant argues that he is not foreclosed from litigating those issues by his failure to list them in the original timely filed application.
There is little dispute concerning the general law in this area. Section 8-43-203(2)(b)(II), C.R.S. 2005, provides that a case will be "automatically closed as to the issues admitted in the final admission if the claimant does not, within thirty days after the date of the final admission contest the final admission in writing and request a hearing on any disputed issues that are ripe for hearing." In Dyrkopp v. Industrial Claim Appeals Office, 30 P.3d 821, 822 (Colo.App. 2001), the court held that an admission for PPD benefits constitutes an implicit denial of liability for PTD benefits because both types of benefits "compensate for a claimant's permanent loss of earning capacity." Here, as in Dyrkopp, the respondents admitted liability for PPD benefits. Thus, as a matter of law, the respondents necessarily denied liability for PTD benefits because the two types of benefits cover the same type of impairment of earning capacity and are mutually exclusive.
However, the claimant contends that since he timely objected to the FAL and filed an application to dispute MMI the issue of PTD was "not ripe" for hearing within the meaning of § 8-43-203(2)(b)(II). The claimant maintains since the issue of MMI was unresolved he should not be foreclosed from litigating the issue of PTD because of his failure to list it on an application filed within thirty days of the final admission. We disagree.
The claimant cites Aguilera v. Longmont Foods W.C. No. 4-553-57 (March 5, 2004). In Aguilera we affirmed an order which determined that the issue of PTD benefits was closed by the respondent's FAL. It is true that the claimant in Aguilera did not dispute the date of MMI, in contrast to the claimant in the present case who vigorously disputed MMI. This factual difference does not convince us to depart from the reasoning in Aguilera.
The claimant also cites Encinias v. United Parcel Service, W.C. 4-153-150, (August 12, 2003) for the proposition that because a timely objection and application for hearing on the issue of MMI were filed, the issue of PTD was not ripe. The issue of MMI was not in dispute in Encinias, and so the case is not directly on point. To the extent that dicta in the case is applicable it states that if the claimant disputed the treating physician's determination of MMI and the DIME was not completed the issue of PTD is not ripe for adjudication. In contrast the DIME in the present case was completed and the DIME physician's determination of MMI is binding unless overcome by "clear and convincing evidence" to the contrary. Metro Moving Storage Co v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The claimant's argument is similar to that made in Peregoy v. Industrial Claim Appeals Office, 87 P.3d 261 (Colo.App. 2004). In Peregoy the claimant filed a timely objection to the FAL and an application for hearing, but admitted he could present no evidence which would "raise any factual dispute concerning the issues admitted in the FAL," including permanent disability and disfigurement. Nevertheless, the claimant argued that the claim remained open until he identified an issue which was ripe for hearing, such as PTD benefits. In rejecting this contention, the court determined the intent of the 1998 amendments to § 8-42-203(2)(b)(II) was to encourage the prompt payment of compensation without the necessity of "formal administrative determination in cases not presenting a legitimate controversy." Hence, the court held the purpose of the requirement to request a hearing on disputed issues which are ripe for hearing within thirty days of the FAL is to require the claimant to contest some issue addressed by the FAL concerning which the claimant can present a "legitimate controversy" by stating the "benefit to which he or she is entitled." The court expressly rejected the contention that a claim may remain open if the claimant simply objects to the FAL and files an application for hearing without raising any specific dispute concerning issues admitted in the FAL. The court reasoned that such an interpretation would defeat the clear legislative intent of the statute. The contention of the claimant in the present case would in a similar manner defeat the same legislative intent of imposing time limits to contest closure of a claim.
In Chavez v. Cargill, Inc., W.C. No. 4-421-748 (November 1, 2002), we discussed the meaning of the term "ripe for hearing" as distinguished from a "disputed issue." We held the term "ripe for hearing" refers to a disputed issue concerning which there is no legal impediment to immediate adjudication. Thus, the statutory reference to "ripeness" recognizes that although a party may be able to present a "legitimate factual dispute" concerning some aspect of the FAL, the law itself may impose a barrier to adjudication of the dispute pending the completion of a legal or procedural process. For example, completion of an independent medical examination is a prerequisite to the adjudication of MMI and whole person permanent impairment benefits. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). Hence, the issues of MMI and PPD are legally ripe for adjudication upon completion of a DIME. We adhere to the views expressed in Chavez v. Cargill, Inc.
The right to permanent disability benefits, including PTD benefits, becomes determinable when the claimant reaches MMI. This is true because the claimant's condition has become stable and the permanent effects of the injury are ascertainable. Section 8-40-201(11.5), C.R.S. 2005; Golden Animal Hospital v. Horton, 897 P.2d 833, 838 (Colo. 1995). Thus, the issue of PTD benefits is "ripe" at the time of MMI because the claimant's physical condition is stable and an ALJ may determine whether the effects of the injury have rendered the claimant unable to earn wages in any employment. It follows that we reject the claimant's argument that the issue of PTD benefits was not ripe at the time of the FAL because he was contesting MMI. The DIME physician had determined that the claimant had already reached MMI when the FAL was filed. The claimant by requesting medical benefits after MMI essentially concedes that the DIME physician's opinion on MMI may well be upheld at the hearing and so other issues such as PTD are ripe for determination. The fact that claimant attempted to endorse the issue of PTD for the hearing is a tacit admission that PTD was ripe for determination. Under these circumstances, the ALJ correctly determined the issue of PTD was closed, absent an order reopening the claim.
The claimant in his petition to review raised the issue of medical benefits after MMI but did not argue it in his brief. As ALJ Felter pointed out, the FAL admits for maintenance care recommended by the ATP and so the claimant is entitled to ongoing medical benefits under Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988) (Grover-type medical benefits).
IT IS THEREFORE ORDERED that both ALJ Friend's order dated March 1, 2004 and ALJ Felter's order dated May 18, 2005 are affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________ Curt Kriksciun ____________________ Tom Schrant Ignacio Olivas-Soto, Aurora, CO, Genesis Consolidated Services, South Jordan, UT, Hartford Casualty Insurance Company, c/o Beth Young, Specialty Risk Services, Denver, CO, Miguel Martinez, Esq., Denver, CO, (For Claimant).Douglas J. Kotarek, Esq. and Sarah E. Spencer, Esq., Denver, CO, (For Respondents).