Opinion
W.C. No. 4-558-019.
December 20, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which determined the issue of permanent partial disability (PPD) was closed and, therefore, struck the claimant's request for a Division-sponsored independent medical examination (DIME). We affirm.
In 2002 the claimant suffered a compensable injury. The respondents filed a Final Admission of Liability (FAL) on December 12, 2003, for the payment of PPD benefits based upon a scheduled disability. On December 12, 2003, the claimant filed an application for a lump sum payment of $10,000 on a form provided by the Division of Workers' Compensation. The Division application form stated the "director cannot grant a lump sum until there has been a final award of permanent impairment benefits." The form also provided that the claimant's signature constituted acceptance of the "Admission of Liability as filed relative to permanent benefits."
The Director of the Division of Workers' Compensation (Director) granted the application for a lump sum payment on January 26, 2004, and the respondents paid the requested benefits. However, on January 9, 2004, the claimant filed a written objection to the FAL and requested a DIME. The respondents then moved for an order striking the DIME request.
The ALJ rejected the claimant's contention that the application for a lump sum payment merely requested payment of the "baseline" scheduled disability award agreed to by the respondents, and reserved the right to additional permanent impairment benefits based upon a higher rating by the DIME physician. Instead, the ALJ relied on the Rules of Procedure, Part XI(C), 7 Code Colo. Reg. 1101-3 at 39.01 and found the claimant waived her right to a DIME by filing the application for a lump sum payment. Consequently, the ALJ dismissed the claimant's application for a DIME.
On review, the claimant contends that the ALJ erroneously relied on Rule XI(C)(3) and language in the Division application for a lump sum payment to find that the issue of PPD was closed. The claimant argues the form and rule are invalid because they are inconsistent with § 8-43-406(1), C.R.S. 2004.
In Brunetti v. Industrial Commission, 670 P.2d 1246 (Colo.App. 1983), the court held the claim was closed by virtue of the claimant's application and receipt of a lump sum award for PPD consistent with the respondents' general admission of liability for permanent impairment. Relying on Brunetti, we subsequently concluded in Ezell v. Raintree Springs Homeowners Association, W.C. No. 4-352-777 (June 6, 2002), and McClain v. City of Cripple Creek, W.C. No. 4-543-147 (November 1, 2004), that a claimant's application for a lump sum award served to close the issue of PPD. The claimant's arguments do not persuade us to depart from our conclusions in Ezell and McClain.
Rule XI(C)(3) limits claimants to a lump sum payment of $10,000 where the injury occurred after July 1, 1999, and the PPD award results from the application of C.R.S. 8-42-107(8), C.R.S. 2004. The ALJ correctly recognized that § 8-42-107(8) governs a claimant's entitlement to medical impairment benefits for whole person impairment, and this claimant was given a scheduled disability rating. See Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996). Therefore, the ALJ properly determined Rule XI(C)(3) is not applicable to this claim. Consequently, we need not consider the claimant's arguments that Rule XI(C)(3) is invalid. Instead, the ALJ determined the claim is governed by Rule XI(C)(4), which provides that the Director may order the lump sum payment of a scheduled disability award in an amount greater than $10,000 up to the maximum allowed by § 8-43-406(2).
We do not dispute that Rules of Procedure adopted by the Director pursuant to her authority under § 8-47-107 C.R.S. 2004, may not expand, enlarge or modify the underlying statute the rule is intended to enforce, and that any rule which is contrary to or inconsistent with the statute it is enacted to enforce is void. Monfort Transportation v. Industrial Claim Appeals Office, 942 P.2d 1358 (Colo App. 1997); Adams v. Department of Social Services 824 P.2d 83 (Colo.App. 1991). Thus, we must, where possible, construe the rule consistent with the enabling statute. See Monfort Transportation v. Industrial Claim Appeals Office, supra; Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997); Sterling v. Industrial Commission, 662 P.2d 1096 (Colo.App. 1982).
Rules XI(C)(1) and (2), which on their face apply to all lump sum payments, require that a request for a lump sum payment shall be made on a form prescribed by the Division. Thus, the issue becomes whether the Director correctly interpreted § 8-43-406 by creating a lump sum application that limits lump sum payments of PPD disability benefits awarded in a FAL to circumstances where the claimant accepts the FAL and waives the right to additional benefits?
In construing the intent of § 8-43-406 we must attempt to effectuate the intent and purpose of the General Assembly. To ascertain the intent, we first examine the actual language of the statute and give the terms their plain and ordinary meaning. Anderson v. Longmont Toyota Inc., ___ P.3d ___ (Colo. 03SC450, December 6, 2004).
Section 8-43-406(1), affords the Director discretionary authority to order "payment of all or any part of the compensation awarded in a lump sum." (Emphasis added). Subsection 8-43-406(2) provides that the director may not order the lump sum payment of permanent partial disability benefits in excess of $37,560.
The term "award" refers to benefits granted either by order or admission but in either case, the term contemplates a final decision on the merits. See L.E.L. Construction v. Goode, 849 P.2d 876 (Colo.App. 1992) rev'd on other grounds 867 P.2d 875 (Colo. 1994); Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991); Hoyle v. Bassett Bedding, W.C. No. 3-993-065 (August 6, 1998), aff'd., Bassett Bedding v. Industrial Claim Appeals Office (Colo.App. No. 98CA1667, April 22, 1999) (not selected for publication) ("award" means decision on merits). Applied here, § 8-43-406(1) inherently contemplates that the aggregate award of benefits has been established before the Director determines what amount should be paid in a lump sum. Indeed, if the Director does not know the final amount of the award, it would be very difficult for the Director to exercise her "discretion" to determine whether a lump sum award is in the "best interests of the parties." Accordingly, we conclude the Director reasonably construed § 8-43-406(1) to require a waiver of further litigation when granting a lump sum application.
Moreover, § 8-42-107(8)(c), C.R.S. 2004, provides that the initial determination of permanent medical impairment is to be made by an authorized treating physician. Where the respondents file a FAL consistent with the treating physician's rating, and the claimant "feels entitled to more compensation," the claimant may file a written objection to the FAL within 30 days and request a DIME. Section 8-43-203(2)(b)(II), C.R.S. 2004. In the absence of a timely objection and DIME request, the treating physician's rating is dispositive and the parties are bound by the award of benefits in the FAL. Whiteside v. Smith 67 P.3d 1240 (Colo. 2003); Koch Industries, Inc., v. Pena, 910 P.2d 77 (Colo.App. 1995) (award becomes final by exhaustion of or failure to exhaust administrative remedies).
Conversely, where the claimant objects to the FAL and requests a DIME, the issue of permanent impairment becomes an issue for the ALJ to resolve after completion of the DIME. HLJ Management Group v. Kim, 804 P.2d 250 (Colo.App. 1990). We know of no authority and the claimant cites none is support of her contention that claimants may request a DIME to assert the treating physician's medical impairment rating is incomplete, without risking the receipt of permanent impairment benefits based on the treating physician's impairment rating. Therefore, we reject the claimant's contention that her application for a lump sum payment merely requested the payment of benefits to which the respondents already agreed were due, while reserving her right to additional permanent disability benefits. See McClain v. City of Cripple Creek, supra.
We also note that § 8-43-203(2)(b)(II) is part of a "statutory scheme designed to promote, encourage, and ensure the prompt payment of compensation without the necessity of a formal administrative determination in cases not presenting a legitimate controversy." Dyrkopp v. Industrial Claim Appeals Office, 30 P.3d 821, 822 (Colo.App. 2001). It would be inconsistent with that legislative intent to construe § 8-43-203(2)(b) as allowing a claimant to accept benefits provided by a FAL while also litigating an entitlement to additional benefits. Consequently, we conclude the Director correctly interpreted § 8-43-406 as precluding a lump sum payment of PPD benefits awarded in a FAL unless the claimant accepts the FAL concerning the aggregate amount of the award.
Here the record reflects that the amount of the claimant's PPD "award" was determined by the FAL unless the claimant elected to dispute the treating physician's rating by undergoing a DIME. Although the claimant timely filed an objection to the FAL and requested a DIME, the claimant also filed an application for a lump sum payment and accepted the respondents' FAL for purposes of the Director's determination of whether to grant a lump sum payment and in what amount. Under these circumstances, we agree with the ALJ that the claimant accepted the FAL concerning the amount of the scheduled disability award and waived her entitlement to a potentially greater award based on the results of a DIME.
The claimant's remaining arguments have been considered and do not alter our conclusions. It is undisputed the claimant accepted the lump sum payment of benefits per her application. Under these circumstances, neither the Director nor the ALJ were compelled to find that the claimant withdrew her request for the lump sum payment by requesting the DIME.
IT IS THEREFORE ORDERED that the ALJ's order dated August 17, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________ Kathy E. Dean
___________________ Robert M. Socolofsky
Florence Carey, Colorado Springs, CO, Sharon Ross, Sanmina-SCI, Fountain, CO, Continental Casualty Insurance, c/o Jeff LaBelle, Gallagher Bassett Services, Inc., Englewood, CO, Division of Workers' Compensation — Interagency Mail William A. Alexander, Jr., Esq., Colorado Springs, CO, (For Claimant).
Susan K. Reeves, Esq., Colorado Springs, CO, (For Respondents).