Opinion
W.C. No. 4-741-836.
June 23, 2010.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Cain (ALJ) dated March 5, 2010, that denied and dismissed the claim for maintenance medical benefits pursuant to Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). We set aside the order and remand for entry of a new order.
The claimant sustained an industrial injury on November 9, 2007. A treating physician placed the claimant at maximum medical improvement (MMI). The respondents filed an application for a Division-sponsored independent medical examination (DIME). The DIME physician opined that the claimant was at MMI and rated his impairment. The respondents filed an application for hearing on the issue of permanent partial disability (PPD) benefits, safety rule violation and overcoming the DIME physician's opinion with respect to the claimant's impairment rating. In his response to application for hearing, the claimant did not endorse the issue of Grover medical benefits for hearing.
A hearing was held before ALJ Harr on June 4, 2009. The respondents stated that they considered the DIME physician's impairment rating to be correct and were no longer seeking to overcome it. The hearing proceeded on the issue of the alleged safety rule violation and credit for previously paid temporary total disability benefits. The claimant did not address the issue of Grover medical benefits. In an order dated June 4, 2009 ALJ Harr ordered the respondents to pay PPD benefits based on the DIME physician's impairment rating. In the same order, ALJ Harr denied the respondents' request that the PPD award should be reduced based on the alleged safety rule violation but granted an offset for an overpayment against the PPD benefits due the claimant under the order.
A hearing was then subsequently held before ALJ Cain on January 14, 2010 on the issue of the claimant's entitlement to Grover medical benefits. ALJ Cain determined that the claimant by failing to raise the issue in the hearing on permanency had waived his right to Grover medical benefits. ALJ Cain therefore denied the claim for those benefits. The claimant brings this appeal contending that the ALJ erred in determining he waived his rights to Grover benefits and that the respondents were obligated to but failed to file a Final Admission of Liability (FAL).
I.
We first address the contention of the respondents that we are without jurisdiction to review ALJ Cain's March 5, 2010 order. It is undisputed that the claimant filed a "Brief In Support of Petition to Review" and that this document was filed within twenty days of ALJ Cain's order. However, the respondents citing § 8-43-301(2), C.R.S. contend that this section requires a party, seeking an appeal from an ALJ's order, to file a "petition to review." The respondents argue that because the claimant only filed a Brief in Support of Petition to Review and not a Petition to Review he has not complied with § 8-43-301(2). The respondents first raised this issue by way of a motion to strike the claimant's Brief in Support of Petition to Review. ALJ Cain in an order dated May 4, 2010 denied the respondents' motion. We are not persuaded that we are without jurisdiction to review ALJ Cain's order.
An order "that requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty" becomes final unless a petition to review is filed with the Panel "within twenty days after the date of the certificate of mailing of the order." § 8-43-301(2); see Brodeur v. Indus. Claim Appeals Office, 159 P.3d 810, 812 (Colo. App. 2007) ("The statutory time limits governing appellate review of workers' compensation decisions are jurisdictional. Thus, absent the filing of a timely petition to review, the Panel lacks jurisdiction to review the ALJ's order."). A timely petition to review is, thus, a prerequisite to appellate review by the Panel. Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo. App. 1991); see also, Speier v. Industrial Claim Appeals Office, 181 P.3d 1173, 1176 Colo. App. 2008).
However, it has been held that a petition to review need not take any particular form nor be captioned in any particular fashion. Tanner v. Synthes USA, W.C. Nos. 4-714-037 4-717-509 (October 27, 2008); Miller v. Source One W. C. No. 4-418-173(December 19, 2003). For instance, a written letter setting forth counsel's specific objections to a particular order has been held sufficient to constitute a petition to review if timely filed. Miller v. Industrial Commission, 28 Colo. App. 462, 474 P.2d 177 (1970), disapproved on other grounds, 682 P.2d 1185 at 1188; see also, Ward v. Azotea Contractors, 748 P.2d 338, 340 at n. 3 (Colo. 1987).
All that is required under § 8-43-301 is that the "petition to review shall be in writing and shall set forth in detail the particular errors and objections of the petitioner." Here the document timely filed by the claimant and captioned "Brief In Support of Petition to Review" contains a detailed statement of errors or objections to ALJ Cain's order. In our view the "Brief In Support of Petition to Review" was in sufficient compliance with the requirements set forth by the statute, and consequently acted as a valid petition for review. Therefore, we are persuaded that we have jurisdiction to review ALJ Cain's order.
II.
The claimant contended at the hearing that the respondents were required to file an FAL in order to close the issue of Grover medical benefits. The claimant argues that the respondents were obligated to file an FAL because they had challenged the determinations of the DIME physician but then withdrew the issue of overcoming those determinations before the hearing.
ALJ Cain determined the plain language of § 8-42-107.2(4) C.R.S. requires the respondents to elect whether to file an FAL based on the DIME physician's determinations, or seek a hearing to challenge one or more of the DIME's findings. ALJ Cain further determined that the respondents complied with the statute by requesting a hearing to challenge one or more of the DIME physician's findings. ALJ Cain was not persuaded that because the respondents ultimately abandoned the challenge to the DIME that they were then required to file an FAL.
Section 8-42-107.2(4) provides as follows:
(4) Within thirty days after the date of the mailing of the IME's report, the insurer or self-insured employer shall either file its admission of liability pursuant to section 8-43-203 or request a hearing before the division contesting one or more of the IME's findings or determinations contained in such report.
Because the best indicator of legislative intent is the language of the statute, words and phrases in a statute should be given their plain and ordinary meanings, and phrases should be read in context and construed according to the rules of grammar and common usage. Section 2-4-101, C.R.S.; Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). We simply do not read § 8-42-107.2(4) as requiring the respondents to file an admission of liability in the situation were as here the respondents had requested a hearing. Because the statute contains no such provision we are not at liberty to read such a provision into the statute. Kraus v. Artcraft Sign Co., 710 P.2d 480, 482 (Colo. 1985) ("We have uniformly held that a court should not read nonexistent provisions into the Colorado Workmen's Compensation Act.").
The claimant argues that without an FAL there was no way for him to know that the respondents would accept the determinations of the DIME physician. However, the order from ALJ Harr ordered the respondents to pay the claimant PPD benefits based upon the medical impairment ratings provided by the DIME physician. The Workers' Compensation Act provides for severe punishment for persons who do not comply with an order issued by an ALJ. In our view, an order provides at least as much assurance as the filing of an FAL would that the claimant will receive appropriate payments.
We further note that a DIME physician's opinion has no presumptive weight on the issue of Grover medical benefits. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186, 190 (Colo. App. 2002); See also Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo. App. 1995) (DIME determination of MMI did not preclude change of physician order where only Grover medical benefits were sought); Wilkinson v. Wal-Mart Stores, Inc., W.C. No. 4-674-582 (October 26, 2007). Therefore, the respondents' abandonment of their challenge to the DIME physician's report did not obligate them to provide Grover medical benefits. The normal rules for securing entitlement to Grover medical benefits apply in this case. These rules require the claimant to request Grover medical benefits at the time permanent disability is determined. Therefore, we affirm ALJ Cain's determination to deny the claimant's request that the respondents be compelled to file an FAL.
III.
The claimant next argues that the ALJ erred in finding that he had waived his right to Grover medical benefits. We agree.
Section 8-42-101(1), C.R.S, requires the employer or insurer to provide medical benefits which are reasonable and necessary to cure and relieve the industrial injury. See Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo. App. 1997). However, after the claimant reaches maximum medical improvement the claimant may obtain future medical benefits only to maintain maximum medical improvement or to prevent a deterioration of his condition. See Grover v. Industrial Commission, supra. The claimant is therefore entitled to Grover-type medical benefits where there is substantial evidence in the record to support a determination that future medical treatment will be reasonable and necessary "to relieve a claimant from the effects of an [industrial] injury" or prevent further deterioration of the claimant's condition. Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609, 611 (Colo. App. 1995); Milco Construction v. Cowan, 860 P.2d 539 (Colo. App. 1992).
We are aware that the Colorado Court of Appeals and the Panel have held that failure to request Grover medical benefits at the time permanent disability is determined results in waiver of the right to receive such benefits. Hanna v. Print Expediters Inc., 77 P.3d 863 (Colo. App. 2003); Cervantes v. Academy School District #20, W. C. No. 4-604-873 (May 23, 2005); Rodriguez v. Russell Stover Candies, W.C. No. 3-111-475 (March 2, 1998); and Williams v. Black Roofing, Inc., W.C. No. 4-126-533 (November 26, 1997). In Hanna v. Print Expediters Inc., supra; the Colorado Court of Appeals cautiously accepted the application of the doctrine of waiver in similar circumstances to the present case. In Hanna, the court noted the following:
While we recognize that public policy considerations may militate against applying the doctrine of waiver to claims for workers' compensation benefits, see Johnson v. McDonald, 697 P.2d 810 (Colo. App. 1985), those considerations do not preclude waiver in all cases. Indeed, the doctrine has been used, albeit sparingly, in appropriate circumstances. See Winters v. Indus. Comm'n, 736 P.2d 1256 (Colo. App. 1986) (claimant waived right to formal retraining in another field).
Thus, the right to future medical benefits may be waived if not requested at the time permanent disability is heard. See Grover v. Indus. Comm'n, supra, 759 P.2d at 711-12 ("[i]f at the hearing on the final award of permanent disability there is substantial evidence of such need for future treatment," the employer may be ordered to pay the costs of future medical treatment); Milco Constr. v. Cowan, 860 P.2d 539 (Colo. App. 1992) (need for future medical benefits must be substantiated at the time of hearing on the final award for permanent disability).
We acknowledge that the claimant failed to assert any claim for Grover medical benefits the time of the hearing before ALJ Harr. Further, our review of ALJ Harr's order persuades us that the issue of Grover-type medical benefits was not tried before ALJ Harr. Exhibit H at 52-56.
However, here ALJ Harr specifically ordered that all issues not expressly decided were reserved to the parties for future determination. Exhibit H at 56. ALJ Cain determined that the fact that ALJ Harr's order contains a clause reserving issues not determined, amounted to a mere surplus in this case because the order addressed PPD and case law requires the claimant to litigate the issue of Grover medical benefits in connection with an award of PPD benefits. We disagree.
ALJ Harr is presumed to have acted regularly in the conduct of his duty as an ALJ. See Ski Depot Rentals, Inc. v. Lynch, 714 P.2d 516 (Colo. App. 1985); Fleet v. Zwick, 994 P.2d 480 (Colo. App. 1999); See also Matter of the claim of Schwarzberg, W. C. 3-562-788 (April 22, 1994). Under these circumstances, we presume the regularity of the ALJ Harr's order. Therefore, we are not persuaded to view the section of ALJ Harr's order that reserved issues as mere surplus. We presume the intent was to reserve unresolved issues such as entitlement to Grover medical benefits.
Therefore, under the circumstances as reflected by the record, we perceive no effective waiver by the claimant of the issue of future medical benefits pursuant to Grover. Cf. Hanna v. Print Expediters, Inc., 77 P.3d 863, 866-67 (Colo. App. 2003) (issue of future medical benefits closed by waiver where ALJ's award did not reserve other issues for future determination and such benefits could have been appealed or otherwise litigated); See also Jones v. Estes Express Lines, W.C. No. 4-651-658 (April 25, 2008).
Thus, we do not view ALJ Harr's order as foreclosing the issue of Grover medical benefits. See Brown Root Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo. App. 1991) (order granting temporary disability benefits, but reserving jurisdiction over other issues, did not close the claim so as to require a petition to reopen for additional benefits). The issue of entitlement to Grover medical benefits as a substantive matter is primarily a question of fact, which must be resolved by the ALJ. Therefore, the matter must be remanded. Because we conclude that the matter must be remanded, we should not be understood to express any opinion on the issue of whether the claimant is entitled to an award of Grover medical benefits. We merely direct the ALJ to reconsider the record as presently constituted and enter a new order consistent with the views expressed herein.
IT IS THEREFORE ORDERED that the ALJ's order issued March 5, 2010 is set aside, and the matter is remanded for further proceedings and entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
JIMMY LASSITER, DENVER, CO, (Claimant).
ACE AMERICAN INSURANCE, Attn: AMY FUNDERBURK, C/O: GALLAGHER BASSETT SERVICES, ENGLEWOOD, CO, (Insurer).
FRANKLIN D AZAR ASSOCIATES, PC, Attn: JOHN M. CONNELL, ESQ., AURORA, CO, (For Claimant).
THOMAS POLLART MILLER, LLC, Attn: DOUGLAS A. THOMAS, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).