Opinion
W.C. No. 4-452-439.
April 10, 2006.
FINAL ORDER
The respondents seek review of an order dated October 29, 2003 of Administrative Law Judge Muramoto (ALJ Muramoto) and the claimant seeks review of an order dated June 29, 2005 of Administrative Law Judge Friend (ALJ Friend). We affirm both orders.
We previously remanded this matter for completion of the record to include a transcript of a hearing held on September 11, 2003. This transcript is now in the record. The respondents had sought review of an ALJ Muramoto's order, but by order dated March 24, 2004 we dismissed the petition to review without prejudice on the ground that the order was interlocutory. The respondents again seek review of ALJ Muramoto's order insofar as it denied a motion to "strike" the claimant's request for a Division-sponsored independent medical examination (DIME). ALJ Friend's subsequent order, which is final, renders ALJ Muramoto's order reviewable at this time.
The claimant sustained a compensable injury in November 1999. In July 2000, an authorized treating physician (ATP) placed the claimant at maximum medical improvement (MMI) and assigned an impairment rating. On August 2, 2000, the respondents filed a final admission of liability (FAL) based on the ATP's finding of MMI and his rating. The claimant filed an objection to the FAL on August 18, 2000.
On August 24, 2000, the Division of Workers' Compensation (Division) wrote a letter to the insurer advising it that the FAL did not include the medical report of the ATP and requesting the insurer to file an amended FAL. On August 29, 2000, the insurance adjuster forwarded the ATP's medical report, but also maintained that the report had been included with the August 2, 2000, FAL. On September 7, 2000, the claimant filed a notice and proposal to select a DIME physician.
The respondents subsequently moved to strike the claimant's notice and proposal to select a DIME physician, arguing that the request was not timely filed under the provisions of section 8-42-107.2(2)(a)(I)(A), C.R.S. 2005. The motion to strike was denied by a prehearing ALJ (PALJ) on August 13, 2003. A DIME was conducted in December 2000. The respondents then requested the ALJ to review the PALJ's ruling in connection with a hearing on the claimant's request for medical benefits.
On October 29, 2003, the ALJ upheld the PALJ's ruling and denied the respondents' request to strike the DIME. Thus, the ALJ ruled that the claimant is not bound by the ATP's finding of MMI and impairment rating. The ALJ determined:
When an FAL does not comply with statutory requirements, it will not serve to close the claim. Although respondents have cast doubt upon whether the Division's letter of August 24 was based on correct information, still there is a presumption of regularity regarding communications to parties from the Division, and it would be unjust not to allow claimant to rely upon a communication from the Division. Under the circumstances of this case, any requirement to submit a Notice and Proposal was not triggered until claimant's counsel received notice that respondents had submitted medical reports in compliance with the Division's letter of August 24, 2000. This was accomplished by the respondent's letter of August 29, 2000, and the ALJ concludes that date triggers claimant's 30 days in which to submit a Notice and Proposal.
ALJ Muramoto, Findings of Fact, Conclusions of Law, and Order at 4, ¶ 2.
The DIME physician stated that the claimant was not at MMI and needed further treatment, including a pain clinic and a psychiatric evaluation. The respondents set the matter for hearing to overcome the DIME determination of MMI. ALJ Friend found that it was highly unlikely that there is any further treatment that would improve the claimant's condition. Hence, he further found that the DIME's opinion that the claimant was not at MMI was highly probably incorrect.
I.
On review, the respondents contend that there is no authority or legal basis for ALJ Muramoto's determination that the time period for filing a Notice and Proposal was tolled by the Division's August 24, 2000 letter.
It is well established that a DIME is a jurisdictional prerequisite to the ALJ's adjudication of the claimant's medical impairment. § 8-42-107(8)(c), C.R.S. 2005; Whiteside v. Smith 67 P.3d 1240 (Colo. 2003); Town of Ignacio v. Industrial Claim Appeals Office, 70 P.3d 513 (Colo.App. 2002); Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995). The procedures and time limits for requesting a DIME are established by § 8-42-107.2(b). The pertinent portion of § 8-42-107.2(2)(b) states:
Unless such notice and proposal are given within thirty days after the date of mailing of the final admission of liability or the date of mailing or delivery of the disputed finding or determination, as applicable pursuant to paragraph (a) of this subsection (2), the authorized treating physician's findings and determinations shall be binding on all parties and on the division.
The filing of a notice within the 30-day period provided by § 8-42-107.2(2) is a jurisdictional prerequisite to a DIME. Stein v. Community Agriculture Alliance W.C. No. 4-533-782 (October 5, 2004); Roddam v. Rocky Mountain Recycling W.C. No. 4-367-003, (January 24, 2005).
Here, it is undisputed that the claimant did not file the notice to select a DIME within 30 days of receiving the August 2, 2000 FAL. However, the claimant contends that when a FAL does not comply with statutory requirements, it does not operate to close the claim. We have held that failure to incorporate the relevant medical reports vitiates an FAL, and the claimant's failure to object to such an admission does not close the claim. See Maloney v. Ampex Corp., W.C. No. 3-952-034 (February 27, 2001); Hernandez v. The Bailey Company, W.C. #4-425-073 (December 31, 2003).
The courts have repeatedly held that subject matter jurisdiction cannot be acquired by waiver or estoppel. See Vieweg v. BF Goodrich Company 170 Colo. 71, 459 P.2d 759 (Colo. 1969); Industrial Commission v. Plains Utility Co., 127 Colo. 506, 259 P.2d 282 (1953); United States Fidelity Guaranty Co. v. Industrial Commission, 99 Colo. 280, 61 P.2d 1033 (1936); Hasbrouck v. Industrial Commission, 685 P.2d 780 (Colo.App. 1984). It follows that the dispositive question is whether ALJ Muramoto erred in concluding that the requirement to submit a Notice and Proposal was not triggered until the claimant's counsel received notice that respondents had submitted medical reports in compliance with the Division's letter of August 24, 2000.
ALJ Muramoto found that the certified copy of the Division's file included the August 2, 2000 FAL and Dr. Raschbacher's report of July 7, 2000, upon which the FAL was based. Respondents submit that at the bottom of these, there appears to be a date stamp of "28-4-00". Respondents submit that a staff member at the Division inadvertently used the 28 instead of 08 to indicate the month of August and that, in any event, the FAL and July 7 medical report were stamped in at the same time, demonstrating that a copy of Dr. Raschbacher's report was attached to the FAL when originally filed. Specific Findings Of Fact, Conclusions Of Law, And Order at 2 ¶ 7. ALJ Muramoto found that although the respondents had cast doubts upon whether the Division's letter of August 24, 2000 was based on correction information, those doubts were not sufficient to overcome the presumption of regularity regarding communications to the parties from the Division. Specific Findings of Fact, Conclusions of Law, and Order at 4, ¶ 2.
At the September 11, 2003 hearing the respondents submitted a copy of the Division file in support of their contention that the medical report was attached to the final admission of liability. The file was accepted into evidence. Tr. (9/11/03) at 6 and 10. The file does not appear in the record before us; however, the August 24, 2000 letter from the Division and the medical report are attached to the claimant's brief. Further, there appears to be no controversy regarding the authenticity of these materials. The respondents on review again make the same factual arguments which ALJ Muramoto found only cast some doubt upon the reliability of the Divisions' letter of August 24,2000.
The ALJ is correct that actions of state agencies have a presumption of validity and regularity. See North Colorado Med. Center, Inc. v. Committee of Anticompetitive Conduct, 914 P.2d 902, 906 (Colo. 1996); see also Public Utils. Comm'n v. District Court, 163 Colo. 462, 468, 431 P.2d 773, 776 (1967). Even accepting the respondents' description of the Division's file, the issue of whether the medical report was attached to the FAL is a factual one. Because the issue is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2005. This standard of review requires us to consider the evidence in the light most favorable to the prevailing party, and defer to the ALJ's credibility determination, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson V. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). Further, the ALJ is not held to a standard of absolute clarity when issuing findings of fact and conclusions of law, provided the basis of the order is apparent from the findings which are entered. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). The court of appeals has noted that in this context the scope of our review is "exceedingly narrow." Metro Moving Storage Co. v. Gusset, 914 P.2d 411, 415(Colo.App. 1995).
Certainly, as ALJ Muramoto found, the respondents succeeded in creating doubt on whether the Division was correct that the medical report did not arrive with the admission. However, under these circumstances, we perceive no basis on which to interfere with the ALJ's finding. Considering the August 24, 2000 letter from the Division combined with the presumption of regularity regarding communications to the parties from the Division and the confusion on the date stamps, we find that the ALJ finding is supported by substantial evidence in the record. In view of our disposition we need not address the alternative determination of the ALJ concerning the claimant's possible detrimental reliance on information received from the Division.
II.
The claimant timely appealed ALJ Friend's order dated June 29, 2005. However, the petition to review filed by the claimant contains only general allegations of error, derived from § 8-43-301(8)C.R.S., 2005. The claimant's petition to review generally contends that the ALJ erred as a matter of law in his legal interpretations and that the record, applicable statutes, rules, and case law addressing the issues presented at hearing do not support the order. The petition identifies no specific errors. Moreover, the claimant has not filed a brief in support of her petition to review and, therefore, the effectiveness of our review is severely limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
Under § 8-43-301(8), C.R.S. 2005 we are precluded from disturbing the ALJ's order unless the findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the findings, the order is not supported by the findings, or the order is not supported by applicable law. We have reviewed the ALJ Friend's findings of fact and the order. The findings are sufficient to permit appellate review, and the findings are supported by substantial evidence in the record. Further, the ALJ's findings support the pertinent conclusions of law and the orders awarding and denying benefits. Therefore, we conclude that the claimant has failed to establish any reversible error in the order of ALJ Friend.
IT IS THEREFORE ORDERED that the orders dated June 29, 2005 and October 29, 2003 are both affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Kathy Gates, Commerce City, CO, Rose Terrace Care Center, Commerce City, CO, Christina Martino, Resource Management Systems, Inc., E. Berry Ave., Greenwood Village, CO, James E. Freemyer, Esq., Denver, CO (For Claimant)
Gregory K. Chambers, Esq. and C. Sandra Pyun, Esq., Denver, CO (For Respondents)