Opinion
W.C. No. 4-300-974.
October 4, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied the claim for additional temporary total disability (TTD) and medical benefits. The claimant contends the ALJ erred in concluding that litigation of these issues was foreclosed by the claimant's failure timely to file a notice and proposal to select a Division-sponsored independent medical examination (DIME) physician as required by § 8-42-107.2(2)(b), C.R.S. 2003. We affirm.
The ALJ's factual findings are not in dispute. The claimant sustained an industrial injury in 1996. He was initially placed at maximum medical improvement (MMI) by an authorized treating physician (ATP) in May 2000. The claimant requested a DIME, and the DIME physician found the claimant was not at MMI. The respondents unsuccessfully attempted to overcome this determination and TTD benefits were ordered beginning May 12, 2000 (the day after claimant was released from incarceration).
An ATP again placed the claimant at MMI on August 12, 2002, and assigned a 24 percent impairment rating. On September 3, 2002, the respondents then filed a Final Admission of Liability (FAL) terminating the claimant's TTD benefits on August 11 and admitting for PPD benefits based on the ATP's rating. The claimant objected to the FAL, but he did not file a notice and proposal to select a DIME nor a request to return the original DIME physician. Instead, the claimant proceeded to hearing on the issue of whether the respondents could apply the $60,000 benefit cap based on TTD benefits the claimant would have received but for his incarceration. The claimant was ultimately successful in this litigation.
In November 2003 the claimant requested a "follow-up DIME" for the purpose of reviewing and disputing the ATP's August 2002 findings of MMI and medical impairment. The respondents moved to dismiss the request arguing it was not timely filed under the provisions of § 8-42-107.2. The respondents then agreed to have resolution of this issue deferred until the DIME was actually completed. The second DIME physician opined the claimant was not at MMI.
The ALJ entered his order on June 11, 2004. The ALJ, citing § 8-42-107.2(2)(b), ruled the claimant's failure to file a notice and proposal to select a DIME within 30 days after the FAL dated September 2, 2002, foreclosed the claimant's right to litigate the claim for additional TTD and medical benefits. The ALJ also ruled the respondents did not waive their right to raise this issue by agreeing to allow the claimant to proceed with the DIME.
On review, the claimant challenges the ALJ's ruling that he was required to file a request for a follow-up DIME within the time limits established by § 8-42-107.2(2)(b). As the claimant recognizes, we have resolved this issue adversely to his position in a series of decisions beginning with Perales v. Napier Enterprises, Inc., W.C. No. 4-516-705 (December 12, 2003). See also, Stefanski v. Sanco Industries, W.C. No. 4-375-006 (June 11, 2004); Sanchez-Ortega v. Central Uniform Linen, W.C. No. 4-358-716 (March 12, 2004); Feeley v. Century Communications, W.C. No. 4-393-063 (January 30, 2004). We are not persuaded to depart from our reasoning in these cases, and decline to do so.
The claimant also asserts the respondents "waived" or are estopped from asserting their argument concerning the timeliness of the DIME request. However, the provisions for objecting to and contesting an FAL, including determinations of MMI and PPD, are jurisdictional. Town of Ignacio v. Industrial Claim Appeals Office, 70 P.3d 513, 515 (Colo.App. 2002); Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo.App. 1993). Consequently, objection to the ALJ's jurisdiction may be raised at any point in the proceedings because jurisdiction may not be conferred by waiver or estoppel. Cramer v. Industrial Claim Appeals Office, 885 P.2d 318 (Colo.App. 1994); Hasbrouck v. Industrial Commission, 685 P.2d 780 (Colo.App. 1984). Thus, the claimant's argument is without merit.
IT IS THEREFORE ORDERED that the ALJ's order dated June 11, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Kathy E. Dean
Bruce Williams, Colorado Springs, CO., Timothy R. Kunau d/b/a Kunau Drilling, Calhan, CO., Legal Department, Pinnacol Assurance — Interagency Mail, William A. Alexander, Jr., Esq., Colorado Springs, CO., (For Claimant).
Douglas P. Ruegsegger, Esq. and Michele Stark Carey, Esq., Denver, CO., (For Respondents).