Opinion
W.C. No. 4-340-159
April 7, 2003
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Jones (ALJ Jones) which determined the claim was closed and denied a petition to reopen. The claimant contends the ALJ erred in concluding the respondents' Final Admission of Liability (FAL) closed the issue of permanent total disability (PTD) benefits. We affirm.
The claimant sustained a compensable back injury in 1997. The claimant underwent a Division-sponsored independent medical examination (DIME) on November 24, 1998, and the DIME physician assessed a 15 percent whole person impairment. On December 28, 1998, the respondents filed an FAL for temporary total disability (TTD) benefits, permanent partial disability (PPD) benefits consistent with the DIME physician's rating, and limited medical benefits. In January 1999, the claimant filed an objection to the FAL stating that she was requesting that "medical benefits remain open."
Subsequently, the claimant filed a petition to reopen based on worsened condition. The claimant sought additional TTD benefits and a change of medical providers. The petition to review was denied by an order of ALJ Harr dated February 14, 2002. The claimant filed a petition to review this order.
In April 2002, the claimant filed an Application for Hearing and listed the issue as PTD benefits. The claimant then filed a second petition to reopen based on error or mistake. The claimant alleged the parties had erroneously assumed the claim was closed, but the issue of PTD remained open. A PALJ then entered an order forbidding the claimant to proceed on the issue of PTD, but permitting the hearing to proceed on the issue of a petition to reopen.
ALJ Jones entered an order denying the petition to reopen. Relying on Dyrkopp v. Industrial Claim Appeals Office, 30 P.3d 821 (Colo.App. 2001), ALJ Jones concluded the respondents' admission for PPD benefits constituted an implicit denial of the claim for PTD benefits. Therefore, ALJ Jones determined the claimant's failure to object to the FAL on the issue of PTD benefits closed that issue. ALJ Jones further concluded that the claimant's second petition to reopen was barred because the claimant made a unilateral mistake in believing the claim was closed prior to the hearing before ALJ Harr.
On review, the claimant contends the issue of PTD remained open and this case is distinguishable from Dyrkopp v. Industrial Claim Appeals Office, supra, because here the claimant filed an objection to the FAL. The claimant also argues the FAL in this case lacked a statement that benefits not specifically admitted are denied. We find no error in the ALJ's reasoning or her application of Dyrkopp.
The case is governed by the version of section 8-43-203(2)(b)(II) which predates the 1998 and 2001 amendments. 1998 Colo. Sess. Laws, ch. 313 at 1431, 2001 Colo. Sess. Laws, ch. 23 at 49-50. Thus, the pertinent statute reads:
An admission of liability for final payment of compensation shall include a statement that this is the final admission by the workers' compensation insurance carrier in the case, that the claimant may contest this admission if the claimant feels entitled to more compensation, to whom the claimant should provide written objection, and notice that if the claimant does not contest the final admission in writing within sixty days of the date of the final admission the case will be automatically closed as to the issues admitted in the final admission. When the final admission is predicated on medical reports, such reports shall accompany the final admission.
Further, section 8-43-203(2)(d), C.R.S. 2002, provides that once a claim is closed under subsection (2), "the issues closed may only be reopened pursuant to section 8-43-303." See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
In Dyrkopp v. Industrial Claim Appeals Office, supra, the court held a FAL closed the issue of PTD benefits where the claimant failed to object to the FAL, the FAL clearly admitted for PPD benefits, there was no "x" in the space for admitting PTD benefits, and the FAL contained the admonition that benefits or penalties not admitted "are hereby specifically denied." The FAL also warned the claimant to write a letter to the Division of Workers' Compensation objecting to the FAL if she disagreed with the "amount or type of benefits" that the respondents agreed to pay.
In Dyrkopp, the court reasoned that an admission for PPD benefits constitutes an "implicit denial of liability" for PTD benefits because both types of benefits provide compensation for permanent loss of earning capacity. This is true despite the different methods of calculating the amount and duration of such benefits. 30 P.3d at 822. The court went on to state that the respondents did not admit liability for PTD benefits because the FAL specifically stated that benefits not admitted were denied, and because the claimant was warned to object if she disagreed with the type and amount of benefits.
The claimant's argument notwithstanding, we do not think this case is distinguishable from Dyrkopp simply because the FAL in this case did not contain a statement that "benefits not admitted are specifically denied." The FAL in this case, like the FAL in Dyrkopp, expressly warns the claimant to file an objection if the claimant disagrees with the "amount or type of benefits" which the carrier has agreed to pay. Because the Dyrkopp court held that PPD and PTD benefits are both forms of compensation for permanent loss of earning capacity, and the only difference is the amount and duration of such benefits, the claimant was sufficiently apprised that the "issue" of PTD was addressed by the FAL, and the "issue" would be closed if the claimant did not object. Cf. Lacina v. Kenton H. Behrent, W.C. No. 4-413-054 (July 5, 2001). Indeed, as the Dyrkopp court held and the ALJ concluded in this case, an admission for PPD constitutes an implicit denial of PTD benefits. See Waymire v. Industrial Claim Appeals Office, 924 P.2d 1168 (Colo.App. 1996) (contemporaneous awards of PPD and PTD benefits not permitted).
Neither is this case distinguishable from Dyrkopp because the claimant filed an objection to he FAL. The "objection" which the claimant filed concerned only medical benefits and had nothing to do with permanent disability benefits. We have previously held that limited objections preserve only the issues listed in the objection, and cannot be construed as objections to other issues addressed in the FAL. The rationale for these decisions is that the purpose of section 8-43-203(2)(b) is to close claims without litigation where there is no legitimate controversy, and to notify respondents of issues which are not amenable to administrative closure without litigation. Eg. Drinkhouse v. Mountain Board of Cooperative Education Services, W.C. No. 4-368-354 (February 7, 2003); Campello v. Progressive Insurance Co., W.C. No. 4-205-461 (January 27, 2003). We adhere to our prior decisions on this issue.
In light of our conclusion that the FAL closed the issue of PTD benefits, we need not reach the question of whether the ALJ correctly ruled there are not grounds for reopening the claim based on mutual mistake.
IT IS THEREFORE ORDERED that the ALJ's order dated October 10, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed April 7, 2003 to the following parties:
Linda Larkin, 1936 W. Zarragoza Dr., Tucson, AZ 85704
K-Mart, 10901 S. Parker Rd., Parker, CO 80134
K-Mart Corp., c/o Anita Klebieko, McMillan Claim Service, 2785 N. Speer Blvd., Denver, CO 80211
Thomas J. Roberts, Esq., 940 Wadsworth Blvd., 4th Floor, Lakewood, CO 80214 (For Claimant)
Michael W. Sutherland, Esq., 1720 S. Bellaire St., #310, Denver, CO 80222-4316 (For Respondents)
By: A. Hurtado