Opinion
W.C. No. 4-162-499
April 4, 1997
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Erickson (ALJ) which awarded the claimant permanent total disability benefits. We affirm.
A brief procedural history of the case is necessary for an understanding of the issues. The claimant sustained an injury in December 1992 while employed by respondent Burlington Coat Factory Warehouse (Burlington). Burlington's insurer, Reliance National Indemnity Company (Reliance), apparently paid medical benefits, as well as temporary total disability benefits, although it did not file a formal admission or denial of liability. (Tr. pp. 6-7, 8, 10).
In 1996, the claimant filed an application for hearing on the issue of permanent total disability. However, the application did not list "compensability" as an issue. Neither did the respondents' response to the hearing application list the issue of "compensability." (Tr. p. 6).
At the hearing, the respondents objected to considering the issue of permanent total disability on the ground that there had been no admission of liability, nor had the issue of "compensability" been listed for hearing. However, under the circumstances, the ALJ permitted the hearing to proceed on the issue of permanent total disability.
The ALJ found that Dr. Jones was the authorized treating physician who provided primary care to the claimant. Dr. Jones placed the claimant at maximum medical improvement (MMI) on January 17, 1996, with restrictions of no lifting off the ground; no lifting over twenty pounds; infrequent bending; infrequent twisting, and restrictions against sitting or standing for more than thirty minutes at a time.
The claimant testified that she suffers from serious back pain, and as a result must lie down several times per day. The claimant's vocational expert, Mr. Best, opined that, considering the restrictions imposed by Dr. Jones and the physical limitations testified to by the claimant, the claimant is unable to earn any wages. However, Best also stated that the claimant is employable if he considers only the restrictions imposed by Dr. Jones.
Under these circumstances, the ALJ determined that the claimant is permanently and totally disabled. The ALJ credited Best's opinion that the claimant is unable to earn any wages in view of the restrictions imposed by Dr. Jones and the necessity for the claimant to lie down several times per day. The ALJ also credited the claimant's testimony that she experiences debilitating pain.
I.
On review, the respondents contend that the issue of permanent total disability was not "ripe" because the respondents did not admit compensability, and because the issue was not listed for hearing. However, we agree with the claimant that the respondents waived this issue by their conduct prior to the hearing.
It is well established that parties may waive any objection to the consideration of an issue by their own conduct. This is particularly true where the party fails timely to object to hearing an issue. See Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987).
Initially, we note that under § 8-43-103(2), C.R.S. (1996 Cum. Supp.), a respondent's payment of "compensation" excuses the claimant from having to file a "notice claiming compensation." Thus, it may be inferred that voluntary payment of compensation constitutes an act on which claimants have a right to rely when ascertaining whether respondents are conceding the occurrence of a compensable injury.
Here, since the respondents voluntarily paid compensation, they implicitly waived the right to deny the existence of compensable injury at the time of the hearing. It may be that the respondents had the right to withdraw their implicit admission, but they failed to do so by raising that issue at the time they filed their response to the application for hearing. See HLJ Management Group, Inc. v. Kim, 804 P.2d 250 (Colo.App. 1990). Under these circumstances, the ALJ did not err in proceeding to adjudicate the issue of permanent total disability.
II.
The respondents next contend that the issue of permanent total disability was not ripe because the claimant's psychiatrist did not place her at MMI for the "psychological component" of the industrial injury. The respondents reason that MMI is a prerequisite to a finding of permanent total disability. We perceive no error since the evidence supports the ALJ's determination that the authorized treating physician placed the claimant at MMI.
As a general matter, we agree with the respondents that permanent total disability may not be adjudicated until the claimant has reached MMI. Since MMI exists when the underlying physical or mental impairment resulting from the injury has become stable, it is impossible to ascertain the permanency or totality of a disability until the claimant reaches MMI. Section 8-40-201(11.5), C.R.S. (1996 Cum. Supp.); Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995); Nunnally v. Wal-Mart Stores, Inc., ___ P.2d ___ (Colo.App. No. 96CA0509, October 24, 1996).
Here, Dr. Jones determined that the claimant was at MMI on January 17, 1996. At that time, § 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.) [subsequently amended for MMI determinations on or after July 1, 1996], stated that the authorized treating physician who provided the primary care was to determine MMI. A finding of MMI by the authorized treating physician providing primary care was binding on the parties unless the claimant underwent an independent medical examination as provided by § 8-42-107(8)(b). Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996). The identity or identities of the authorized treating physicians providing primary care was a factual matter for determination by the ALJ. Blue Mesa Forest v. Lopez, supra.
The ALJ found that Dr. Jones was the authorized treating physician providing primary care. This finding is amply supported by the claimant's testimony, as well as Dr. Jones' November 27, 1995 report. The mere fact that the claimant received some treatment from a psychiatrist did not require the ALJ to conclude that the psychiatrist was a primary care provider.
To the contrary, Dr. Jones' January 17, 1996 report indicates that he was fully aware of the claimant's psychiatric treatment, and took it into account when finding that the claimant had reached MMI. The January 17 report also reflects that Dr. Jones consulted with the psychiatrist and determined that the psychiatrist believed that the claimant did not have any "permanent psychological impairment." The mere fact that Dr. Jones recommended that the claimant follow up with the psychiatrist is not inconsistent with the finding of MMI since the claimant may be entitled to ongoing care to maintain her condition. See Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995).
Thus, substantial evidence supports the ALJ's finding that Dr. Jones was the authorized primary care physician. Because Dr. Jones pronounced the claimant at MMI, and no IME was requested, the issue of permanent total disability was ripe for hearing.
III.
The respondents' final contention is that the ALJ erred in determining that the claimant is permanently and totally disabled. In essence, the respondents argue that the ALJ should not have considered the claimant's testimony concerning the disabling effects of her pain. Instead, the respondents argue that the ALJ was bound by the restrictions imposed by Dr. Jones. The respondents reason that if the ALJ had been limited to considering the medical restrictions, Mr. Best's opinion would not support a conclusion that the claimant is permanently and totally disabled. We are not persuaded.
In Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995), the Court of Appeals held that a claimant's ability to earn "any wages" under § 8-40-201(16.5)(a) may be evaluated by taking into account the "human factors" which were relevant in permanent total disability cases prior to the 1991 amendments. Moreover, the claimant's ability to "earn any wages" is a factual matter for determination by the ALJ. Best-Way Concrete Co. v. Baumgartner, supra. Consequently, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.).
One of the "human factors" which an ALJ was entitled to consider prior to 1991 was the claimant's "general physical condition." Former § 8-42-110(1)(b), C.R.S. (1990 Cum. Supp.); Professional Fire Protection, Inc. v. Long, 867 P.2d 175 (Colo.App. 1993). An element in determining the claimant's general physical condition was the claimant's ability to handle pain and the perception of pain. E.g. Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981).
Here, the ALJ was persuaded by the claimant's testimony that she experiences debilitating pain which frequently requires her to rest. In our view, this is one of the "human factors" which the ALJ could consider in determining whether or not the claimant has the ability to earn any wages.
We are not persuaded by the respondents' argument that Burns v. Robinson Dairy, 911 P.2d 661 (Colo.App. 1995), and similar cases, mandate a different result. Burns holds that the opinion of the attending physician concerning the claimant's ability to return to work is binding when the issue is termination of temporary disability benefits under § 8-42-105(3)(c), C.R.S. (1996 Cum. Supp.). As we have held, permanent total disability involves the application of a different and broader standard, and we do not consider Burns to be persuasive with respect to the factors which may be considered in determining permanent total disability.
IT IS THEREFORE ORDERED that the ALJ's order dated September 9, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Bill WhitacreNOTICE This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed April 4, 1997 to the following parties:
Karen E. Moyers, 260 South Knox Court, Denver, CO 80219
Burlington Coat Factory Warehouse, Route 130 North, Burlington, NJ 08016
Reliance National Indemnity Company, 77 Water Street, New York, NY 10005
Tim Litton, Frontier Adjusters of Omaha, P.O. Box 34644, Omaha, NE 68134
Mark A. Simon, Esq., 501 S. Cherry St., Ste. 820, Denver, CO 80222 (For the Claimant)
Joel Babcock, Esq. James B. Fairbanks, Esq. Pamela D. Lewis, Esq., 400 S. Colorado Blvd.,
Ste. 700, Denver, CO 80222 (For the Respondents)
By: _______________________________________________