Opinion
W.C. No. 4-197-352, No. 4-117-844.
October 14, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) dated August 13, 2003, which denied penalties under § 8-43-304(1), C.R.S. 2003, for the respondent's alleged violation of § 8-43-203(2)(b)(II), C.R.S. 2003. We affirm.
These claims have a lengthy procedural history which is pertinent to our resolution of the issues on review. In July 1991 the claimant suffered an admitted injury. Based upon an authorized treating physician's opinions that the claimant reached maximum medical improvement (MMI) on July 10, 1995, with 24 percent whole person impairment, the respondent filed a Final Admission of Liability (FAL) dated November 18, 1996, which terminated temporary disability and medical benefits. The claimant filed a timely objection to the FAL but did not file a Notice and Proposal for Selection of a Division Independent Medical Examiner (DIME).
In an order dated April 9, 2003, the ALJ found the claimant's condition worsened in 1999. However, relying on Lobato v. Industrial Claim Appeals Office, 94 P.3d 1173 (Colo.App. 2003), cert. granted 03SC556, August 2, 2004, the ALJ determined the issues of temporary disability and medical benefits were closed because the claimant failed to request a DIME within the time prescribed by § 8-42-107.2 C.R.S. 2003, and also had not filed a petition to reopen the issues. Consequently, the ALJ denied the claimant's request for additional medical benefits designed to cure the worsened condition. The claimant appealed the April 9, 2003 order.
On review we concluded the claimant was not required to request a DIME because the claimant was not contesting the 1995 finding of MMI. Rather, the request for additional medical and temporary disability benefits was based upon a worsening of condition after MMI. Consequently, we held that ALJ erred insofar as he denied the claim for additional benefits based on the claimant's failure timely to request a DIME.
We also noted that applicable law only required the claimant to file a timely objection to prevent the claim from closing. See former § 8-43-203(2)(b), C.R.S. (1996 Cum. Supp). Therefore, contrary to the ALJ's determination we concluded the issues of medical benefits to cure the injury and temporary disability benefits remained open and a petition to reopen was not a prerequisite to a hearing on the claimant's entitlement to additional medical and temporary disability benefits. We then remanded the matter for further proceedings on the claim for additional benefits.
On remand the ALJ entered an order dated June 30, 2004, which awarded additional medical benefits to cure the industrial injury. The ALJ denied temporary disability benefits prior to May 21, 2003 and reserved determination of the claimant's entitlement to temporary disability benefits after May 21, 2003. Apparently both parties appealed the June order, and that appeal is pending.
In the interim the claimant requested an order imposing penalties against the respondent for their failure to provide explicit notice of the requirements of § 8-42-107.2(2) as amended by § 8-42-107.2(6), C.R.S. 2003, effective September 1, 1999. The claimant also requested authorization for medical treatment after MMI pursuant to Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).
On August 14, 2003, the ALJ denied the request for penalties but awarded Grover-type medical benefits consisting of the medical expenses incurred for surgery on May 21 by Dr. Janssen and the cost of treatment by Dr. Janssen's referrals. Both parties timely appealed the August 14 order. However, the respondent later withdrew its appeal.
I.
On review of the August 14 order the claimant does not dispute the ALJ's characterization of the May 21 surgery as a Grover-type benefit. Instead, the claimant contends the ALJ erred in finding he "lacked jurisdiction" to award pre-MMI medical treatment, and the claimant seeks to "preserve" her entitlement to pre-MMI medical treatment. We perceive no basis to disturb the ALJ's order on the issue of medical benefits.
Under § 8-43-301(2), C.R.S. 2003, a party dissatisfied with an order "which requires any party to pay a penalty or benefits or denies a claimant a benefit or penalty," may file a petition to review. An order may be partially final and partially interlocutory and only final orders are subject to our review. Director of the Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986); Oxford Chemicals Inc., v. Richardson, 782 P.2d 843 (Colo.App. 1986).
Contrary to the claimant's contention the ALJ did not determine he "lacked jurisdiction" to award pre-MMI medical benefits. ( See Claimant's Brief in Support of the Petition to Review, p. 3). Indeed, the claimant did not request any pre-MMI medical treatment and the ALJ's order does not deny any pre-MMI medical treatment. Rather, the issue before the ALJ was whether the claimant was entitled to the May 21 surgery as a Grover-type medical benefit. ( See Specific Findings of Fact page 1). Thus, the August 14 order does not contain any "final order" concerning pre-MMI benefits for our review.
In any case, we note that our order of November 26, 2003, resolves the claimant's argument and the ALJ's order of June 30, 2004, grants the claimant's request for additional pre-MMI medical treatment.
II.
The claimant also contends the ALJ erroneously determined the penalty claim was barred by the 1 year statute of limitations in § 8-43-304(5), C.R.S. 2003. Again, we conclude the claimant's argument fails to establish any basis to set aside the ALJ's order.
The penalty request pertains to the administration of § 8-42-107.2 C.R.S. 2003, which creates a procedure for the selection of the DIME for purposes of resolving disputes under § 8-42-107 concerning MMI and medical impairment. Section 8-42-107.2(2)(a)(I)(A) and § 8-42-107.2(2)(b) provide that a claimant is foreclosed from disputing a finding of MMI unless the claimant files a Notice and Proposal to Selection a DIME within 30 days of the mailing of FAL on MMI or permanent impairment. As originally enacted, § 8-42-107.2 applied to injuries that occurred on or after August 5, 1998. However, in 1999 the General Assembly enacted § 8-42-107.2(6), which rendered the time limits in § 8-42-107.2(2) applicable to all open cases with a date of injury after July 1, 1991 for which a DIME had not been requested. [ See Colo. Sess. Laws 1999, ch. 313, § 8-42-107.2(6), at 1432]. In Lobato v. Industrial Claim Appeals Office, supra, the court held that for injuries which occurred prior to August 5, 1998, the statutory period for the claimant to request a DIME commenced September 1, 1999, which was the effective date of the 1999 amendments.
The claimant reasons that because § 8-42-107.2(6), became effective September 1, 1999, the respondent was required by § 8-43-203(2)(II)(b) to file an amended FAL which contained explicit notice of the 1999 amendments. Consequently, the claimant argues the respondent's failure to file the explicit notice subjected the respondent to penalties.
The Lobato court rejected an argument that a claimant is denied due process of law in the absence of an amended FAL which notifies the claimant of the action required by the 1999 amendments to § 8-42-107.2. Rather, the Lobato court concluded that the "triggering event" which put the claimant on notice of the need to request a DIME within 30 days of the FAL was the enactment of the 1999 amendments to § 8-42-107.2 effective September 1, 1999. Id. at 1176. The court added that the filing of an amended FAL would merely trigger the statute of limitations for the amended FAL.
In Hample v. Denver School District #1, W.C. No. 4-317-737 (April 19, 2004), we relied upon Lobato v. Industrial Claim Appeals Office, supra, to reject an argument that a final admission which fails to provide explicit notice of the requirements of § 8-42-107.2 is defective. The claimant notes that Lobato is pending certiorari review on whether the 30 day period to request a DIME does not commence until the occurrence of a new triggering event such as a new or amended FAL, or medical report where the claimant filed an objection to a FAL dated prior to the effective date of § 8-42-107.2, and seeks to preserve her arguments for additional review.
The claimant's arguments do not persuade us to depart from our conclusions in Hample. Accordingly, the ALJ properly denied the penalty claim insofar as he determined the respondent had no duty to provide the claimant with any explicit notice of the requirements of § 8-42-107.2(2)(b), and the failure to provide the requested notice does not establish a basis for penalties. See Allison v. Industrial Claim Appeals Office, 916 P.2d 623 (Colo.App. 1995) [in the absence of a violation of the Act no penalties may be imposed under § 8-43-304(1)]. Therefore, we need not consider whether the ALJ correctly determined the penalty request is barred by the statute of limitations.
IT IS THEREFORE ORDERED that the ALJ's order dated, August 14, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Vicki L. Grogan, Highlands Ranch, CO, Michelle Horning, Exempla Healthcare, Inc., Wheat Ridge, CO, Jason Houston, Sedgwick Claims Management Services, Inc., Greenwood Village, CO, Neil D. O'Toole, Esq., Denver, CO, for Claimant.
Katherine Markheim Lee, Esq. and Jonathan A. Decker, Esq., Denver, CO, for Respondent.