Summary
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.
Summary of this case from In re Grogan, W.C. NoOpinion
W.C. No. 4-317-737
April 19, 2004
FINAL ORDER
The claimant and the respondents separately petition for review of an order of Administrative Law Judge Henk (ALJ) which struck the claimant's request for a Division- sponsored independent medical examination (DIME) and awarded medical benefits after maximum medical improvement (MMI). We affirm.
In February 1994 the claimant suffered a compensable slip and fall injury. The respondents filed a Final Admission of Liability (FAL) dated February 5, 1999. The claimant timely objected to the FAL. On May 16, 2002 the claimant requested a DIME. The DIME was subsequently performed.
The respondents moved to strike the DIME report on grounds the issue of permanent medical impairment was closed by the FAL by virtue of the claimant's failure to request a DIME with the time limits in § 8-43-203(2)(b)(II), C.R.S. 2003. In response, the claimant asserted the FAL was insufficient to close any issue because the FAL failed to notify the claimant of her duty to comply with § 8-43-203(2)(b)(II).
Expressly relying on Lobato v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA1145, June 5, 2003), the ALJ determined the claimant had thirty days from September 1, 1999, to request a DIME. Because the claimant did not request the DIME until May 2002, the ALJ determined the claimant's request for a DIME was jurisdictionally barred. Therefore, the ALJ determined the issue of permanent impairment was closed and the DIME physician's opinions were irrelevant to the issue of medical impairment absent an order reopening the claim. Consequently, the ALJ granted the respondents' motion to strike the DIME report.
The ALJ also denied the claimant's request for the imposition of penalties due to the respondents' failure to file an amended FAL which contained a notice that the right to request a DIME expired 30 days from September 1, 1999. However, the ALJ awarded future medical benefits as provided by Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).
I. A.
On review, the claimant contends the ALJ erroneously struck the DIME report. We disagree.
Initially, we note that the respondents' Designation of Record includes the "Division of Workers' Compensation file." The record transmitted to us on appeal apparently does not include the complete Division of Workers' Compensation file and our review is limited to the evidentiary record before the ALJ. Further, there is no evidence in the record which tends to suggest the respondents requested the ALJ to consider the entire Division of Workers' Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(6), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers' Compensation file, but restricted our review to the record made at the hearing.
A DIME is a prerequisite to a hearing on the accuracy of the treating physician's finding of medical impairment. Whiteside v. Smith 67 P.3d 1240 (Colo. 2003). Section 8-42-107.2 C.R.S. 2003, creates a procedure for the selection of an independent medical examiner for purposes of resolving disputes concerning medical impairment. Under § 8-42-107.2(2)(a)(I)(A) and § 8-42-107.2(2)(b) a claimant is foreclosed from disputing the treating physician's impairment rating unless the claimant files a Notice and Proposal to select a DIME within 30 days of the mailing of a final admission of liability that includes an impairment rating. As originally enacted § 8-42-107.2 applied to injuries that occurred on or after August 5, 1998. However, in 1999 the statute was amended to apply 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 on September 1, 1999, which is the effective date of the 1999 amendments. Therefore, the Lobato court concluded that the claimant in a 1992 injury claim, who objected to a 1994 final admission, was foreclosed from disputing an authorized treating physician's medical impairment rating by failing to request a DIME within 30 days of September 1, 1999.
The claimant argues Lobato v. Industrial Claim Appeals Office, supra, was wrongly because it is not consistent with the rule of liberal statutory construction. The claimant also disputes the Lobato court's conclusion that § 8-42-107.2 is procedural not substantive and therefore, can apply retroactively. Instead, the claimant argues that § 8-42-107.2 should not be applicable to cases in which respondents have filed a FAL that lacks the notice requirements of § 8-43-203(2)(b)(II).
We and the ALJ are bound by published decisions of the court. See C.A.R. 35(f). Therefore, unless and until Lobato is overturned or modified, the claimant's arguments do not afford us a basis to grant appellate relief.
B.
We also reject the claimant's contention that the FAL was invalid because it failed to contain the requisite notice provided by the applicable version of § 8-43-203(2)(b)(II). Section 8-43-203(2) has undergone a series of amendments. At the time of the claimant's injury the pertinent portion of § 8-43-203(2), C.R.S. 1994 required that FALs contain the following notice:
An admission for final payment of compensation shall include a statement that this is the final admission by the workers' compensation insurance carrier in the case, that the claimant may contest this admission if the claimant feels entitled to more compensation, to whom the claimant should provide written objection, and notice that if the claimant does not contest the final admission in writing within sixty days of the date of the final admission the case will be automatically closed as to the issues admitted in the final admission.
In 1996, the above language was recodified in subsection (2)(b) and made applicable to all penalty requests after July 1, 1996. See 1996 Colo. Sess Laws, ch. 174 at 830-831.
In 1998, subsection (2)(b) was significantly amended to limit the claimant to 30 days to contest a FAL and required the claimant to also request a hearing on any disputed issues that are ripe for hearing, including the selection of a DIME pursuant to § 8-42-107.2 if a DIME had not already been conducted. However, the General Assembly directed that the 1998 amendments apply to "injuries occurring on or after the applicable effective date of this act," or August 5, 1998. See 1998 Colo. Sess. Laws, ch. 313 at 1431-1432. Thus, we reject the claimant's contention that this 1994 injury claim is governed by the 1998 amendments to § 8-43-203(2). Cf. Martinez v. Stanley and Beverly Brunitz, W.C. No. 4-218-999 (April 7, 2004).
In 2001, subsection (2)(b) was again amended to provide that where a DIME was requested, the parties were not required to request a hearing until completion of the DIME. However, that amendment was only applicable to FALs filed after March 11, 2001 and thus, it is not applicable to this 1999 FAL. See 2001 Colo. Sess. Laws, ch. 23 at 49-50.
Subsection (2)(b) was again amended in 2003, to require that a FAL include notice that no application for hearing is required until the completion of the DIME. However, because the amendments are not applicable to injuries before August 5, 1998, they are not pertinent to this 1994 injury claim. It follows, this claim is governed by § 8-43-203(2)(b), C.R.S. 1996.
Here, the respondents' February 1999 FAL contained a notice that the claimant's failure to object within 60 days of the date of the FAL would automatically close the issues admitted in the FAL. ( See Submissions for Linda Hample). Thus, the FAL complied with the applicable notice provisions in § 8-43-203(2).
Further, the Lobato court rejected the argument that the claimant was 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. Slip Op. pp. 4-5; see also Dyrkopp v. Industrial Claim Appeals Office 30 P.3d 821 (Colo.App. 2001) (parties presumed to have knowledge of the applicable statutes). The court added that the filing of an amended FAL would merely trigger the statute of limitations for the amended FAL. Slip. Op. pp. 8-9. Under these circumstances, we cannot say the ALJ erred in failing to find that the FAL was defective.
Moreover, § 8-43-304(5), C.R.S. 2003 provides as follows:
A request for penalties shall be filed with the director or administrative law judge within one year after the date that the requesting party first knew or reasonably should have known the facts giving rise to a possible penalty.
The claimant's arguments notwithstanding, the ALJ reasonably inferred that insofar as the claimant sought penalties for the respondents' failure to file an amended FAL based upon the 1999 amendments to § 8-42-107.2, the claimant knew or should have know the facts giving rise to the penalty claim as of September 1, 1999. Therefore, the claimant's June 19, 2003 application for hearing on the issue of penalties is barred by the one-year statute of limitations in § 8-43-304(5).
C.
The claimant also contends that § 8-42-107.2 is unconstitutional on its face and violates due process and equal protections guarantees of the United State Constitution for claimants who suffer injuries after July 1, 1991 and object to a FAL before August 9, 1999.
We lack jurisdiction to declare the statute unconstitutional. Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971); Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539 (Colo.App. 1995). Indeed, to address the claimant's constitutional challenges would violate the principle of separation of powers, and cause us to engage in constitutional decision-making beyond our area of expertise. See Denver Center for Performing Arts v. Briggs, 696 P.2d 299, 305 (Colo. 1985).
II.
The respondents contend the ALJ's award of Grover-type medical benefits was based on an erroneous determination that the respondents "stipulated that 25 percent of the claimant's maintenance treatment is caused by the industrial injury." The respondents contend there is no evidence to support the ALJ's finding.
A party is bound by its judicial admission. Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993). A judicial admission is defined as a "formal, deliberate declaration that a party or his or her attorney makes in a judicial proceeding for the purpose of dispensing with proof of formal matters or facts about which there is no real dispute." Kempter v. Hurd, 713 P.2d 1274, 1279 (Colo.App. 1986). However, judicial admissions must be unequivocal, because they are binding once made. Salazar v. American Sterilizer Co., 5 P.3d 357 (Colo.App. 2000); Rojhani v. Meagher, 22 P.3d 554 (Colo.App. 2000).
In our view, this record does not support the conclusion the respondents made an unequivocal admission that the claimant is entitled to Grover-type medical benefits equal to 25 percent of the cost of Dr. Kruse's maintenance treatment. ( See Tr. pp. 27, 30-32, 34). To the contrary, it is unclear whether the respondents' attorney admitted the claimant is entitled to at least 25 percent of the Grover-type medical benefits recommended by Dr. Centero or only offered to relieve the claimant of the burden to prove her entitlement to Grover-type benefits if the claimant stipulated to limit the respondents' liability to 25 percent Dr. Kruse's treatment. Therefore, the ALJ erroneously determined the respondents stipulated to admit liability for 25 percent of the Grover-type medical benefits provided by Dr. Kruse. Nevertheless, we conclude the ALJ's error was harmless.
A claimant is entitled to Grover-type medical benefits where there is substantial evidence in the record to support a determination that future medical treatment will be reasonable and necessary to relieve the effects of the industrial injury or prevent a deterioration of the claimant's condition. Hanna v. Print Expediters Inc., 77 P.3d 863 (Colo.App. 2003). For purposes of Grover-type medical benefits, there is no distinction between "active treatment" and "diagnostic procedures." See Brock v. Jack Brach Sons Trucking, W.C. No. 3-107-451, (December 15, 1995). Accordingly, we have held that medical monitoring is a compensable Grover-type medical benefit. See Atwood v. Western Slope Industries, W.C. No. 3-069-135, (November 28, 1994). We adhere to our prior conclusions.
Whether the claimant sustained his burden to prove entitlement to Grover-type medical benefits is a question of fact for resolution by the ALJ which must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003; Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995). However, the ALJ is not held to a crystalline standard in articulating the basis for his order. George v. Industrial Commission, 720 P.2d 624 (Colo.App. 1986).
Relying on Dr. Centero's medical report dated December 16, 1998, the ALJ found the claimant sustained her burden to prove entitlement to Grover-type medical benefits. The December 16 report contains evidence that Dr. Centero placed the claimant at MMI and recommended maintenance treatment consisting of annual examinations by Dr. Kruse. Further, Dr. Centero apportioned 25 percent of the cause of the claimant's need for maintenance treatment to the industrial injury. Because the record supports the award of future medical benefits, it is immaterial whether the ALJ erroneously found the respondents "stipulated" to the award. See § 8-43-310, C.R.S. 2003; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988) (error which is not prejudicial will be disregarded).
IT IS THEREFORE ORDERED that the ALJ's order dated October 14, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Robert M. SocolofskyNOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2003. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on April 19, 2004 by A. Pendroy.
Linda Hample, 2780 S. Cook St., Denver, CO 80210
Doreen Bovey, Denver School District #1, 900 Grant St., Denver, CO 80203
Legal Department, Pinnacol Assurance — Interagency Mail
Neil D. O'Toole, Esq., 226 W. 12th Ave., Denver, CO 80204-3625 (For Claimant)
Kathryn Kaeble Todd, Esq. and T. Paul Krueger, II, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)