Opinion
W.C. No. 4-197-352
November 26, 2003
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) which denied additional temporary disability benefits and medical benefits to cure the industrial injury. We set aside the order and remand the matter for entry of a new order.
In July 1991 the claimant suffered an admitted injury. Based upon an authorized treating physician's opinions that the claimant reached maximum medical improvement (MMI) on July 10, 1995 and sustained 24 percent whole person impairment, the respondent filed a Final Admission of Liability dated November 18, 1996, which terminated temporary disability benefits and admitted liability for permanent partial disability benefits. The claimant filed a timely objection to the Final Admission but did not file a Notice and Proposal for Selection of a Division Independent Medical Examiner (DIME).
In 1999 Dr. Jones opined the claimant was no longer at MMI and recommended further medical treatment. The claimant subsequently requested additional temporary disability and medical benefits.
Relying on Lobato v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA1145, June 5, 2003), the ALJ also determined the claimant failed to request a DIME within the time prescribed by § 8-42-107.2 C.R.S. 2003. Therefore, the ALJ determined the disputed issues were the closed. Further, the claimant did not file a petition to reopen. Consequently, the ALJ determined the claimant is precluded from obtaining additional temporary disability benefits or medical benefits designed to cure the industrial injury.
On review the claimant contends inter alia, that this case is factually distinguishable from Lobato v. Industrial Claim Appeals Office, supra. Therefore, the claimant argues the ALJ mistakenly relied on Lobato to deny additional benefits. We agree for reasons other than those cited by the claimant.
Section 8-42-105(3)(a), C.R.S. 2003, provides that temporary total disability benefits terminate when the claimant reaches MMI. Under § 8-42-107(8)(b), C.R.S. 2003, an authorized treating physician's determination of MMI is conclusive of the claimant's entitlement to further temporary disability benefits unless the party disputing the MMI determination requests a DIME. Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995).
Section 8-42-107.2 C.R.S. 2003, creates a procedure for the selection of an independent medical examiner for purposes of resolving disputes under § 8-42-107 concerning MMI and medical impairment. Section 8-42-107.2(2)(a)(I)(A) and § 8-42-107.2(2)(b) provide that a claimant is foreclosed from disputing a finding of MMI unless the claimant files a Notice and Proposal to Selection a DIME within 30 days of the mailing of a final admission of liability that includes an impairment rating. As originally enacted § 8-42-107.2 applied to injuries that occurred on or after August 5, 1998. However, in 1999 the statute was amended to apply to all open cases with a date of injury after July 1, 1991 for which a DIME had not been requested. [ See Colo. Sess. Laws 1999, ch. 313, § 8-42-107.2(6), at 1432].
In Lobato v. Industrial Claim Appeals Office, supra, the court held that for injuries which occurred prior to August 5, 1998, the statutory period for the claimant to request a DIME commenced September 1, 1999, which was the effective date of the 1999 amendments. Therefore, the Lobato court concluded that the claimant in a 1992 injury claim, who objected to a 1994 final admission, was foreclosed from disputing an authorized treating physician's finding of MMI and medical impairment rating by failing to request a DIME within 30 days of September 1, 1999.
However, the question of whether the claimant was at MMI on July 10, 1995, is separate and distinct from whether the claimant's condition from the work-related injury remained stable after 1998. This is true because a claimant can reach MMI and suffer a subsequent deterioration to the point that she is no longer at MMI. See City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997); El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993). It follows that the DIME provisions in § 8-42-107(8) are not applicable where the claim for additional benefits is based upon the allegation of a worsened condition. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
Here, unlike the facts in Lobato, the claimant alleged, and the ALJ expressly found that the claimant was not contesting she was at MMI on July 10, 1995. (Finding of Fact 1) Rather, the claimant alleged her condition subsequently worsened and as a result, she was no longer at MMI commencing in 1999. Therefore, the ALJ erred insofar as he denied the claim for additional benefits based on the claimant's failure to request a DIME within the time period required by § 8-42-107.2.
Furthermore, in November 1996 when the respondent filed the Final Admission of Liability, the applicable law only required the claimant to file a timely objection to prevent the claim from closing. See former § 8-43-203(2)(b), C.R.S. (1996 Cum. Supp.); cf. Lewis v. Scientific Supply Co., 897 P.2d 905 (Colo.App. 1995) (unconstested final admission closes claim on admitted issues). The current requirement that claimants also request a hearing on "ripe" issues applies only to injuries on or after August 5, 1998. ( See 1998 Colo. Sess. Laws, ch. 313, § 8-43-203(2)(b)(II) at 1431]. Thus, the issue of temporary disability benefits remained open and no petition to reopen was required to litigate the claimant's entitlement to temporary disability benefits after July 10, 1995. See Peregoy v. United Parcel Service, W.C. No. 4-427-814 (February 28, 2003). Consequently, the ALJ erred in finding he lacked jurisdiction to hear the claimant's request for additional benefits.
We also note that where a claim for temporary disability benefits is based on a worsening of condition after MMI, the claimant is required to prove a physical change in his condition which has caused a greater impact on the claimant's work capacity than existed at the time of MMI. City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997). Thus, as a practical matter the claimant is required to present proof similar to that required to reopen the matter under § 8-43-303 C.R.S. 2003 on grounds of a change of condition. See Chavez v. Industrial Commission, 714 P.2d 1328 (Colo.App. 1985) (change of condition for reopening refers to worsening of physical condition from industrial injury). Therefore, the respondent's "reasonable expectations" that the Final Admission of Liability terminated its liability for temporary disability benefits is not defeated by litigation of the claimant's request for additional benefits.
The ALJ did not determine whether the claimant suffered a worsening of condition which would entitle her to additional temporary disability and medical benefits. Therefore, the ALJ's order is set aside and the matter is remanded for further proceedings on the claim for additional benefits. Section 8-43-301(8), C.R.S. 2003.
In view of our conclusions we need not consider the claimant's contentions that § 8-42-107.2 is unconstitutional and that Lobato v. Industrial Claim Appeals Office, supra, was wrongly decided.
However, we note that § 8-42-107.5 C.R.S. 2003, provides that:
No claimant whose impairment rating is twenty-five percent or less may receive more than sixty thousand dollars from combined temporary disability payments and permanent partial disability payments.
In Donald B. Murphy Contractors, Inc., v. Industrial Claim Appeals Office, 916 P.2d 611 (Colo.App. 1995) , the court concluded that where there has been an initial determination of MMI and permanent partial disability, and the claimant then suffers a worsening of condition such that the claimant is no longer at MMI, the application of § 8-42-107.5 is premature. However, to avoid or minimize a potential overpayment in the event the claimant's medical impairment rating from the worsened condition was later determined to be 25 percent or less, the court concluded that "where further benefits are sought after the twenty-five percent or less limit of § 8-42-107.5 has been applied, the [employer and its insurer] are entitled to offset any permanent disability partial benefits paid against temporary total disability benefits" owed as a result of the worsened condition.
Here, it is undisputed the $60,000 cap on combined temporary and permanent disability benefits is applicable to the previous 24 percent whole person impairment and the respondent admitted liability for combined benefits of $60,000. See also Grogan v. Lutheran Medical Center, Inc., 950 P.2d 690 (Colo.App. 1997). Therefore, the respondent's liability for additional temporary disability benefits is subject to an offset for permanent partial disability benefits previously paid.
IT IS THEREFORE ORDERED that the ALJ's order dated April 9, 2003, is set aside and the matter is remanded to the ALJ 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 26, 2003 by A. Hurtado.
Vicki Grogan, 4932 E. Greenwich Dr., Highlands Ranch, CO 80126
Michelle Horning, Exempla Employee Occupational Health Services, 3655 Lutheran Pkwy., #105, Wheat Ridge, CO 80033
Jason Houston, Sedgwick Claims Management Services, Inc., 7400 E. Orchard Rd., #4015, Greenwood Village, CO 80111
Neil D. O'Toole, Esq., 226 W. 12th Ave., Denver, CO 80204-3625 (For Claimant)
Katherine Markheim Lee, Esq., Thomas L. Kanan, Esq. and Jon Atkins, Esq., 1700 Broadway, #1900, Denver, CO 80290-1901 (For Respondents)