Opinion
W.C. No. 4-534-551.
June 4, 2004.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) which denied the request for conversion of a scheduled impairment rating to a whole person impairment rating. The claimant contended, inter alia, that he was entitled to a Division-sponsored independent medical examination (DIME) before the issue was resolved. Because the claimant raises a legitimate jurisdictional question concerning whether he is entitled to a DIME, we remand for further proceedings.
The claimant sustained an admitted injury to his right shoulder on February 4, 2002. In a report dated November 7, 2002, the authorized treating physician (ATP) placed the claimant at maximum medical improvement (MMI) with a 6 percent impairment of the right upper extremity. This rating was based on range of motion impairment.
On November 22, 2002, the respondents filed a Final Admission of Liability (FAL) admitting for permanent partial disability benefits based on 6 percent impairment of the right arm at the shoulder. The FAL, which is contained in the record as Respondents' Exhibit D, does not include a copy of the ATP's November 7 report, nor the corresponding "worksheet" found in Respondents' Exhibit A.
The claimant objected to the FAL but did not file a notice and proposal to select a DIME physician. In February 2003, the claimant received a medical report from an independent medical examination (IME) conducted by a physician of the claimant's own choosing. The IME physician opined the claimant sustained trauma to structures beyond the arm at the shoulder, and therefore, is entitled to a 12 percent whole person impairment.
In December 2002, the claimant applied for a hearing and listed the issue as "conversion of impairment to whole person because situs of functional impairment is torso." At the hearing, the claimant argued that he was not obligated to file a notice and proposal to select a DIME until the ALJ determined whether the injury was on or off the schedule. The claimant further asserted the FAL was "defective" because the ATP did not include a conversion of the scheduled impairment to a whole person impairment.
However, the ALJ found the ATP "implicitly" concluded the claimant was not entitled to a whole person impairment rating because he did not convert the 6 percent upper extremity rating. Instead, the ALJ determined the claimant "accepted the four corners of the ATP's [scheduled] rating opinion" by not filing a timely notice and proposal to select a DIME. (Conclusion of Law (a) and Tr. pp. 15-16). Finally, the ALJ found the claimant failed to present any persuasive evidence that he sustained functional impairment beyond the arm at the shoulder. Thus, the ALJ denied the request for whole person impairment benefits.
On review, the claimant argues he is entitled to a DIME prior to determining whether he sustained whole person impairment. In the "Conclusion" to his brief, the claimant amplifies this assertion by stating this is "especially true when the Final Admission of Liability contained merely a one-page attached sheet that summarized a 6 percent upper extremity rating but did not attach any work sheets [sic] pursuant to the Rules of Procedure for which [sic] describe a report as the reportand accompanying worksheets which trigger the DIME process." (Emphasis in original). We remand for further proceedings concerning this argument.
Section 8-43-203 (2) (b) (II), C.R.S. 2003, provides that a case will be automatically closed as to issues admitted in an FAL "if the claimant does not within thirty days after the date of the final admission, contest the admission in writing and request a hearing on disputed issues that are ripe for hearing, including the selection of an independent medical examiner pursuant to section 8-42-107.2 if an independent medical examination has not already been conducted." The statute further provides that when an FAL "is predicated upon medical reports, such reports shall accompany the final admission." Section 8-42-107.2 (2) (a) (I) (A), C.R.S. 2003, provides that for a claimant, "the time for selection of an IME commences with the date of mailing of a final admission of liability by the insurer or self-insured employer that includes an impairment rating issued in accordance with section 8-42-107." Section 8-42-107.2 (2) (b), C.R.S. 2003, states that unless the notice and proposal are given within thirty days of the FAL, the findings and determinations of the ATP become binding on the parties.
We have previously held that an FAL which does not include the rating physician's entire report, including both the narrative discussion and ratings worksheets required by Rule of Procedure IV(N) (1), 7 Code Colo. Reg. 1101-3 at 8, is insufficient to close the issue of permanent disability benefits for purposes of § 8-43-203 (2) (b) (II). The rationale for this holding is that the statute requires medical reports to be filed and "is designed to promote intelligent decision making by claimants" by informing them of the factual predicates for the admission and providing them with a basis to decide whether grounds exist to contest the FAL. McCotter v. U.S. West Communications, Inc., W.C. No. 4-430-792 (March 25, 2002).
It follows from this principle that if the FAL is not sufficient to close the issue of permanent disability benefits, it is also insufficient to trigger the statutory requirement to request a DIME within thirty days. Indeed, § 8-43-203 (2) (b) (II) expressly refers to § 8-42-107.2, and the two statutes operate together to establish a unified scheme which provides a mechanism for closure of issues over which there is no legitimate dispute, while affording the claimant a method to contest those determinations with which he disagrees. See Peregoy v. Industrial Claim Appeals Office, 87 P.3d 261 (Colo.App. 2004).
Applying these principles here, we note there is no evidence in the record that the FAL included any medical report from the ATP, and the claimant expressly argues that the FAL did not include the ratings worksheet contained in Respondents' Exhibit A. Although the claimant's brief implies that the FAL included the ATP's narrative report placing the claimant at MMI and assessing a 6 percent upper extremity impairment, the brief also alleges the ratings worksheet contained in Exhibit A was not included.
In our opinion, this argument raises a jurisdictional question concerning whether or not the claimant was, as the ALJ ruled, obligated to request a DIME within thirty days of the mailing of the November 22, 2002 FAL. See Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo.App. 1993) (time limits contained in § 8-43-203 (2) regulate ALJ's jurisdiction to consider issues without necessity of petition to reopen). Accordingly, the claimant may properly raise the issue at this stage of the proceedings, even if it was not presented to the ALJ. See Hasbrouck v. Industrial Commission, 685 P.2d 780 (Colo.App. 1984).
On remand, the ALJ shall determine whether the FAL filed by the respondents on November 22 included the reports necessary to trigger the requirement that the claimant file a notice and proposal to select a DIME within thirty days as provided in § 8-42-107.2 (2) (b). The ALJ may, in the exercise of his discretion, elect to take additional evidence on this issue.
We also agree with the claimant that the holding in Delaney v. Industrial Claim Appeals Office, 30 P.3d 691 (Colo.App. 2000), is relevant to this case. In Delaney, the court ruled that a DIME is not a jurisdictional prerequisite to determining whether the claimant sustained an injury which is on or off the schedule. Rather, that issue is a question of fact to be determined by the ALJ. However, the Delaney court also held that when the issue of whether or not the injury is scheduled is disputed, due process may require that the claimant be allowed to complete a timely requested DIME. Here, the time for requesting a DIME may not yet have begun to run because the respondents did not file an FAL which complies with the statutory requirements concerning medical reports. If a complying FAL has not been filed, due process may yet require that the claimant be allowed to obtain a DIME.
IT IS THEREFORE ORDERED that the ALJ's order dated April 9, 2003, is set aside, and the matter is remanded for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
__________________ David Cain
__________________ Dona Halsey
Nicholas Bargas, Denver, CO, Special Transit, Boulder, CO, Legal Department, Pinnacol Assurance — Interagency Mail, Kevin C. Smith, Esq., Denver, CO, (For Claimant).
Douglas P. Ruegsegger, Esq. and Michele Stark Carey, Esq., Denver, CO, (For Respondents).