Opinion
W.C. No. 4-814-599.
July 28, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated March 1, 2011 that struck the claimant's objection to the final admission filed by the respondents and struck the claimant's application for hearing. We affirm.
The ALJ recites the following procedural history in his order. The respondents first filed a FAL on September 17, 2010 but filed a new FAL on December 9, 2010, after the DIME physician issued a supplemental report. The FAL admitted liability for medical, temporary total disability, and permanent partial disability benefits. The claimant filed his objection to the final admission 61 days later, along with a notice to set and an application for hearing on issues including medical benefits, authorized provider, average weekly wage, disfigurement, temporary and permanent disability benefits, conversion, maximum medical improvement, and overcoming a DIME (Division-sponsored independent medical examination). The respondents filed a motion to strike both the claimant's objection to their FAL and the claimant's hearing application. The ALJ determined that because the claimant was untimely in filing his objection, the FAL was effectively uncontested and automatically closed the issues the claimant sought to take to hearing.
Initially, we note that the order under consideration must "finally dispose" of the issues presented. Bestway Concrete, Inc. v. Industrial Claim Appeals Office, 984 P.2d 680, 684 (Colo. App. 1999). The ALJ's order striking the claimant's objection to the respondents' final admission of liability is final because it effectively denies benefits. See § 8-43-301(2), C.R.S.; see also BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo. App. 1997) (discussing general need for finality of order before review available).
The claimant recognizes that pursuant to § 8-43-203(2)(b)(II), C.R.S., he had 30 days from the filing of the respondents' FAL to dispute the FAL and request a hearing. Further, the claimant does not dispute the ALJ's findings that the respondents filed their FAL on December 9, 2010 and that he filed an objection to the FAL on February 8, 2011. An uncontested final admission of liability automatically closes a case "as to the issues admitted in the final admission." Section 8-43-203(2)(b)(II), C.R.S.; Cibola Constr. v. Industrial Claim Appeals Office, 971 P.2d 666, 667 (Colo. App. 1998). Accordingly, the failure to properly contest a FAL closes the claim on all admitted issues. Dyrkopp v. Industrial Claim Appeals Office 30 P.3d 821 (Colo. App. 2001).
However, the claimant asserts that he substantially complied with the applicable statutory provisions by giving the respondents actual notice of his objection to the FAL and of his intent to file an application for hearing. In support of this assertion, the claimant alleges that at a prehearing conference on December 28, 2010, the parties agreed that the claimant would object to the FAL and file a hearing application. The claimant further alleges that he received an order from a prehearing administrative law judge incorporating the parties' understanding. The claimant made these allegations in his response to the respondents' motion to strike.
In their brief in opposition, the respondents allege that they requested a prehearing conference to vacate a hearing they secured for January 2011 because they had filed a FAL consistent with the DIME physician's supplemental report. The respondents state that the January hearing was vacated at the prehearing conference, and the claimant's counsel stated that he intended to file an application for hearing and an objection to the respondents' FAL. The respondents deny knowing of or receiving any order from a prehearing administrative law judge regarding the prehearing conference.
We may not consider the contentions that are not matters of record, as our review is restricted to the record before the ALJ. The factual assertions made on appeal by counsel may not substitute for evidence. See Subsequent Injury Fund v. Gallegos, 746 P. 2d 71 (Colo. App. 1987). The record does not contain details of the pre-hearing conference or the order to which the claimant refers. The ALJ based his decision on the undisputed fact that the claimant filed his objection to the final admission and hearing application more than 60 days after the FAL was filed. We find no error in the ALJ's determination that the issues raised by the claimant were closed by the FAL due to the claimant's failure to timely object to the FAL.
Substantial compliance with the statutory requirement for objecting to an FAL can be sufficient to prevent closure of a claim. See, e.g., Mitchell v. Office Liquidators, Inc., W.C. No. 4-409-905 (December 29, 2000) (timely application for hearing sufficed for purposes of objecting to FAL). However, there must be evident a genuine effort to comply with statutory requirements. See Pinon v. U-Haul, W.C. No. 4-632-044 (April 25, 2007), affd sub. nom. Pinon v. Industrial Claim Appeals Office (Colo. App. 07CA0922, April 3, 2008) (not selected for official publication) (substantial compliance requires party intent to or actually make good faith or colorable effort to comply with statutory requirements). Here, there is no indication that the claimant took steps to comply with the statutory requirements for objecting to the FAL. Consequently, we find no substantial compliance.
IT IS THEREFORE ORDERED that the ALJ's order dated March 1, 2011 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Dona Rhodes
RUBEN BARRERAS, PASADENA, CA, (Claimant).
ST. FRANCIS MEDICAL CENTER, COLORADO SPRINGS, CO, (Employer).
INDEMNITY INSURANCE CO OF NORTH AMERICA, Attn: MELISSA CARTER, C/O: SEDGWICK CMS, LEXINGTON, KY, (Insurer).
MCDIVITT LAW FIRM, PC, Attn: KIRK WHITEHEAD, ESQ., COLORADO SPRINGS, CO, (For Claimant).
NATHAN, BREMER, DUMM MYERS, PC, Attn: ANNE SMITH MYERS, ESQ., MEXICO AVENUE, DENVER, CO, (For Respondents).