Opinion
W.C. No. 4-388-703
October 11, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Muramoto (ALJ) which vacated the claimant's Application for Hearing on the issue of medical benefits. We affirm.
In 1998, the claimant suffered an admitted injury. A Division-sponsored independent medical examination (DIME) physician determined the claimant sustained 9 percent whole person impairment. The respondents applied for a hearing to overcome the DIME physician's opinion. The claimant's response to the application for hearing did not endorse any additional issues. Based upon the evidence presented at a hearing on August 1, 2001, ALJ Stuber issued an order dated September 11, 2001 which awarded permanent partial disability benefits based on 11 percent whole person impairment. The order did not reserve any issue for future determination and no appeal was taken from the order.
On September 4, 2001, the claimant filed an Application for Hearing which requested medical treatment after MMI and a change of physician. The respondents moved to strike the application on grounds the claim was closed. On December 13, 2001, ALJ Coughlin determined the claimant preserved the claim for future medical benefits as provided by Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988), by filing the Application for Hearing prior to the date ALJ Stuber awarded permanent disability benefits. Therefore, ALJ Coughlin denied the respondents' motion to strike the application for hearing.
The issue of medical benefits came before ALJ Muramoto on April 23, 2002. The respondents requested ALJ Muramoto reconsider ALJ Coughlin's order. ALJ Muramoto determined the issue of Grover-type medical benefits was waived because it was not raised at the time of the hearing on permanent disability. Further, ALJ Muramoto determined ALJ Stuber's order of September 11, 2001 closed the claim. Therefore, ALJ Muramoto struck the claimant's application for hearing.
On review, the claimant contends ALJ Muramoto erred in finding the issue of future medical benefits was closed. We disagree.
The 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 an industrial injury or prevent further deterioration of the claimant's condition. Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995); Milco Construction v. Cowan, 860 P.2d 539 (Colo.App. 1992). Once the claimant establishes the probability of a need for future treatment, the claimant is entitled to a general award of future medical benefits, subject to the respondents' right to contest the compensability of any particular treatment on the grounds the treating physician is not authorized to treat the injury, or the treatment is not reasonable or related to the industrial injury. Grover v. Industrial Commission, supra; Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997); Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999).
The claimant need not be receiving treatment at the time of MMI to obtain a general award of Grover-type medical benefits. Consequently, the claimant mistakenly asserts that he could not litigate his claim for Grover-type medical benefits until he was prepared to establish his entitlement to rhizotomy treatment.
We have repeatedly held that Grover-type medical benefits are waived if not requested at the time permanent disability is determined. See Rodriguez v. Russell Stover Candies, W.C. No. 3-111-475 (March 2, 1998); Davis v. Mulberry Inn Inc., W.C. No. 3-949-781 (November 126, 12995). Contrary to the claimant's contention, our conclusion is supported by the actual language Milco Construction v. Cowan, supra, where the court held that the need for future medical benefits "must be substantiated at the time of hearing on the final award for permanent disability." Ibid at 541. Therefore, we adhere to our prior conclusions.
Contrary to the claimant's contention, nothing in Grover supports an inference that if the record is inadequate to determine the need for future medical benefits at the time of the hearing on permanent disability, the claimant may apply for a later hearing when the necessary evidence is "ripe" for adjudication. To the contrary Grover states that "[I]f at the hearing on the final award of permanent disability there is substantial evidence" of the need for future treatment the employer may be ordered to pay the costs of future medical treatment.
Here, it is undisputed the claimant did not request Grover-type medical benefits at the August 1, 2001 hearing or in his post-hearing position statement to ALJ Stuber on the issue of permanent disability. Therefore, ALJ Muramoto did not err in finding the claimant waived a claim for Grover-type medical benefits.
Moreover, a claim may be closed by a "final award" resulting from an admission or order after a contested hearing. The term "award" includes an order which grants or denies benefits. Burke v. Industrial Claim Appeals Office, 905 P.2d 1 (Colo.App. 1994) . Under the statutory provisions currently codified at § 8-43-303, C.R.S. 2002, the claimant is precluded from receiving further benefits after a claim is closed, unless there is an order reopening the claim on the grounds of error, mistake, or change of condition. See Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991).
In Brown Root, the court held that an order which denied temporary disability benefits, but contained an express reservation of jurisdiction over the subject of permanent disability, did not close the claim. However, the court concluded that if the order had not contained an express reservation, it would "normally" have been considered an award requiring a reopening prior to granting any other benefits. Accordingly, Brown Root stands for the proposition that unless an ALJ's award of benefits expressly reserves other issues for future determination, the "award" closes the claim and subjects the parties to the reopening requirements prior to litigation of any further issues. See D. Cain , The Colorado Lawyer, Brown Root: When an ALJ's Order is an "Award," September 1993, Vol. 22, No. 9 p. 1927.
Admittedly, the claimant filed his Application for Hearing on the issue of medical benefits prior to the date of ALJ Stuber's award of permanent partial disability benefits, and prior to the date ALJ Stuber's order became final. See § 8-43-301(2), C.R.S. 2002. However, ALJ Stuber's order did not contain any clause which reserved the issue of medical benefits.
Section 8-43-301(2) provides that where a party is dissatisfied with an order which denies a benefit or penalty the party may file a petition to review within 20 days of the date of mailing of the order. The ALJ's order is final if no petition to review is timely filed.
ALJ Stuber's order of September 11, 2001, awarded permanent partial disability benefits but effectively denied all further benefits because it did not contain any reservation clause. Consequently, insofar as the claimant was dissatisfied with the ALJ Stuber's denial of all other benefits, and the claimant sought to preserve a right to litigate an entitlement to Grover-type medical benefits, he was required to appeal ALJ Stuber's order. It follows that the claimant's failure to seek appellate review of ALJ Stuber's order, resulted in ALJ Stuber's order becoming a "final award" which closed the claim and precluded the claimant from litigating the claims for Grover-type medical benefits and a change of physician absent an order reopening the claim.
The claimant's further contentions, including the arguments concerning res judicata and Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995) have been considered and are not persuasive. Consequently, the ALJ Muramoto did not err in striking the Application for Hearing.
IT IS THEREFORE ORDERED that ALJ Muramoto's order dated June 10, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
NOTICE
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. 2001. 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 decision were mailed October 11, 2002 to the following parties:
Woodrow W. Hanna, Jr., 1131 S. Butler Way, Lakewood, CO 80232
Print Expediters, Inc., 235 Wyandot St., Denver, CO 80223
Rhonda Norris, State Farm Insurance Companies, P. O. Box 266004 Littleton, CO 80163-6004
J. J. Fraser, III, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For Claimant)
Eliot J. Wiener, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)
BY: ____A. Hurtado____