Opinion
W.C. No. 4-604-109.
June 14, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated January 20, 2011 that denied the claimant's claim for permanent total disability benefits. We affirm.
A hearing was held on the issue whether the issue of permanent total disability benefits was closed. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant sustained a compensable injury to her shoulder on December 1, 2003 and, following medical treatment, reached maximum medical improvement on January 24, 2005 with upper extremity impairment of seven percent. She underwent a Division-sponsored independent medical examination (DIME) on June 14, 2005. The DIME physician, Dr. Jenks, reported that she was not at maximum medical improvement. She received further treatment and Dr. Jenks subsequently placed her at maximum medical improvement with whole person impairment of 19 percent. On February 6, 2006 the respondents filed a final admission of liability admitting for permanent partial disability benefits based upon the 19 percent impairment rating. The final admission advised the claimant of the need for objecting to the admission and the procedures for doing so. On February 14, 2006 the claimant objected to the final admission and applied for a hearing on the issues of disfigurement, penalties for failure to admit for disfigurement benefits, and overpayment. On April 19, 2006 the respondents filed an amended final admission of liability identical to the February 6th admission except that it changed the disfigurement from zero to "TBD" and it included an attachment supporting the asserted overpayment of temporary total disability benefits. On May 8, 2006 the respondents filed another final admission except that the maximum medical improvement date was corrected to conform to the DIME report. On May 11, 2006 the claimant filed an application for hearing on the issue of permanent total disability benefits.
The ALJ concluded that the issue of permanent total disability benefits was closed by the claimant's failure to object to the February 6th final admission of liability on that issue. The ALJ reasoned that once the thirty-day period for objecting on that issue expired it was not revived by either of the amended final admissions that were subsequently filed. Accordingly the ALJ dismissed the claim for permanent total disability benefits.
The claimant appealed and argues that the ALJ erred in concluding that the issue of permanent total disability was closed by the claimant's failure to object to the February 6th admission. We are unpersuaded that the ALJ erred.
Section 8-43-203(2)(b)(II) provides the applicable procedure for objecting to and for closing issues admitted to or denied in a final admission. It requires a final admission to contain a notice to the claimant that he or she may contest the admission and that failure to do so will close the issues admitted. One of the purposes of the statute is to put the claimant on notice of the exact basis of admitted or denied liability, in order to permit the claimant to make an intelligent decision regarding whether to challenge the final admission. The section "is part of a statutory scheme designed to promote, encourage, and ensure prompt payment of compensation to an injured worker 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).
The statutory requirement to file a written objection is part of a comprehensive statutory scheme encouraging the prompt payment of claims without the necessity of litigation where there are no legitimate issues in controversy. Dyrkopp v. Industrial Claim Appeals Office 30 P.3d 821 (Colo. App. 2001). The filing of a written objection serves to notify the respondent that the claimant does not accept the respondent's "final" position and alerts the respondent to issues which are not amenable to administrative closure without litigation. Drinkhouse v. Mountain Board of Cooperative Education Services, W.C. No. 4-368-354 (February 7, 2003), aff'd Drinkhouse v. ICAO, (Colo. App. No. 03CA0438, March 4, 2004) (not selected for publication). Moreover, as we stated in Drinkhouse, requiring a specific objection to individual aspects of the final admission is consistent with the statutory scheme which contemplates the closure of specific issues addressed by the admission. See Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo. App. 1993).
In Drinkhouse the claimant objected to a final admission on the issue of Grover-type medical benefits. The insurer subsequently agreed to provide Grover medical benefits. Later the insurer filed a revised final admission which admitted for Grover-type medical benefits but was otherwise identical to the previously filed final admission. The claimant filed a written objection to the revised final admission and then applied for a hearing on various issues including maximum medical improvement and permanent disability. An ALJ found the issues of maximum medical improvement and permanent disability were closed by the claimant's failure to object to the earlier final admission on any issue other than Grover-type medical benefits and, therefore, the claimant's objection to the revised admission was immaterial. The court upheld the ALJ's order on appeal. We adhere to our conclusions in Drinkhouse.
We agree with the ALJ that Leewaye v. Industrial Claim Appeals Office 178 P.3d 1254 (Colo. App. 2007), does not require a different result. In Leewaye the insurer's second, corrected final admission of liability superseded its earlier admission in its entirety. The second admission was issued before the time period for responding to the first admission had expired. The effect of the second final admission of liability was to start a new 30-day period for the claimant to respond to the second admission and all issues raised in it. As we read Leewaye, the court relied upon the fact that the second admission was filed prior to the expiration of the period for objecting to the initial objection. Thus, the court expressly stated that the basis for its holding was the possible confusion that could be created by the "overlapping objection periods." Here, there is no such basis for the application of the holding in Leewaye and we read nothing in that decision suggesting that we should extend its holding to the present circumstances.
IT IS THEREFORE ORDERED that the ALJ's order dated January 20, 2011, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John B. Baird
_______________________ Curt Kriksciun
MARIA CRAIG, PUEBLO, CO, (Claimant).
SEDGWICK CMS, Attn: SHARMIE JENSEN, C/O: SALTLAKE CITY, LEXINGTON, KY, (Insurer).
RICHARD M. LAMPHERE, C/O: STEVEN U. MULLENS, PC, PUEBLO, CO, (For Claimant).
BRUCE MCCREA, ESQ., C/O: MCCREA BUCK, DENVER, CO, (For Respondents).