Opinion
W.C. No. 4-218-999
April 7, 2004
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which determined the claim was closed and denied a request for additional medical benefits. We reverse and remand for further proceedings.
The facts in this case are essentially undisputed. The claimant sustained a compensable left shoulder injury in 1994. In September 1995, the respondents filed a final admission of liability (first FAL) admitting the claimant reached MMI in July 1995 with a 6 percent upper extremity impairment. The claimant filed a timely objection to the first FAL.
In July 2001, the claimant requested a Division-sponsored independent medical examination (DIME). The timeliness of this request is not disputed. The DIME physician opined the claimant was at MMI since she was unwilling to undergo invasive procedures, and assigned a 12 percent upper extremity impairment rating, which converts to a 7 percent whole person impairment.
The respondents filed a second FAL on October 16, 2001. The FAL admits for 12 percent upper extremity impairment and denies liability for any additional medical benefits. The second FAL contains a "Notice to Claimant" that the case will be automatically closed as to the issues admitted unless the claimant objects in writing within 60 days of the date of the FAL.
On October 19, 2001, the claimant filed an application for hearing listing the issues as overcoming the DIME and permanent partial disability benefits (PPD). The application states the claimant will contact the Division on November 8, 2001, to set the matter for hearing. However, the matter was not set on November 8.
On October 15, 2002, the claimant filed another application for hearing listing the issue as medical benefits. However, the respondents argued to the ALJ that he could not consider this request because the claimant failed to "set" a hearing within thirty days of the second FAL, as required by the statute currently codified at § 8-43-203(2)(b)(II), C.R.S. 2003. In any event, the respondents argued that because the claimant failed to raise the issue of medical benefits in the October 19 application for hearing, that issue was closed.
The ALJ held that the case is governed by § 8-43-203(2)(b)(II) as it existed following statutory amendments enacted on March 11, 2001. 2001 Colo. Sess. Laws, ch. 23 at 49-50. Applying this provision, the ALJ concluded the claimant did not timely "request" a hearing on disputed issues that were ripe for hearing because he did not "set" the hearing on November 8, 2001. Therefore, the ALJ concluded the claim was closed and denied the request for medical benefits. The ALJ also stated the issue of medical benefits was a "new issue, as claimant failed to raise the issue of medical benefits" in the October 19 application for hearing.
On review, the claimant advances two arguments for reversal of the ALJ's order. First, the claimant contends the second FAL was invalid and did not close the claim because it does not contain the statutory notice to the claimant required by § 8-43-203(2)(b)(II). Second, the claimant argues the statute does not require a claimant to "set" a hearing in order to "request" a hearing for purposes of § 8-43-203(2)(b)(II). We conclude the ALJ's order is erroneous because the ALJ applied the wrong version of the statute. However, we agree with the claimant that if the current version of the statute does apply, the second FAL did not close the claim because it lacked the requisite notice to the claimant.
Section 8-43-203(2) has undergone a series of amendments. At the time of the claimant's 1994 injury, the pertinent portion of § 8-43-203(2)(b) required that when an employer or insurer filed an FAL, it was required to 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. When the final admission is predicated upon medical reports, such reports shall accompany the final admission.
In 1996, the above language was recodified in subsection (2)(b). 1996 Colo. Sess Laws, ch. 174 at 830-831. In 1998. subsection (2)(b) was significantly amended to read as follows:
An admission for the payment of compensation shall include a statement that this is the final admission by the workers' compensation carrier in the case, that the claimant may contest the admission if the claimant feels entitled to more compensation, to whom the claimant should provide written objection, and notice to the claimant that the claim will be automatically closed as to the issues admitted in the final admission if the claimant does not, within thirty days after the date of the final admission, contest the admission in writing and request a hearing on any disputed issues that are ripe for hearing, including the selection of an independent medical examiner pursuant to section 8-42-107.2 if an independent medical examination has not already been conducted. When the final admission is predicated on medical reports, such reports shall accompany the final admission.
The General Assembly directed that these amendments apply to "injuries occurring on or after the applicable effective date of this act," or August 5, 1998. 1998 Colo. Sess. Laws, ch. 313 at 1431-1432.
In 2001, subsection (2)(b) was again amended to add the language cited in the ALJ's order. The additional language provides as follows:
However, if an independent medical examination is requested pursuant to section 8-42-107.2, the request for hearing on disputed issues that are ripe for hearing need not be filed until after completion of the division's independent medical examination. The respondents shall have thirty days after the date of mailing of the report from the division's independent medical examiner to file a revised final admission or to file an application for hearing. The claimant shall have thirty days after the date respondents file the revised final admission or application for hearing to file an application or response for hearing on any issues that are ripe for hearing. The revised final admission shall contain the statement required by this paragraph (II) and the provision relating to contesting the revised final admission shall apply.
This enactment became effective on March 11, 2001, the date of passage, and applies to final admissions "on or after said date." 2001 Colo. Sess. Laws, ch. 23 at 49-50. Subsection (2)(b) was again amended in 2003, but the amendments are not pertinent to the issues presented here. 2003 Colo. Sess. Laws, ch. 306 at 1956-1957.
The ALJ ruled that the 2001 amendments established the claimant's obligation to request a hearing on issues that were ripe for hearing within thirty days after the October 2001 or the second FAL was filed. However, the obligation for a claimant to request a hearing on disputed issues ripe for a hearing within thirty days of an FAL was not created until 1998, and the General Assembly expressly directed that this requirement apply to cases where the injury occurred on or after August 5, 1998. See Vetten v. Industrial Claim Appeals Office, 986 P.2d 983 (Colo.App. 1999) (court must apply statutory directive concerning effective date of statute). The 2001 amendments delay the obligation to request a hearing on disputed issues that are ripe for hearing in the event a DIME is requested. Thus, the 2001 amendments necessarily qualify the 1998 amendments, and cannot be read to apply to an FAL which is filed in a case where the injury occurred before August 5, 1998. To hold otherwise would require an absurd reading of the statute such that a claimant's duty to object to an FAL and request a hearing would depend on whether the respondents were filing the first FAL or an FAL after a DIME. See Spracklin v. Industrial Claim Appeals Office, 66 P.3d 176 (Colo.App. 2002) (statutes involving the same subject matter should be construed together to give consistent, harmonious, and sensible effect to all their parts). Thus, although the 2001 amendments apply to "final admissions on or after" March 11, 2001, they do not apply to all final admissions, only those involving injuries occurring on or after August 5, 1998. This interpretation is confirmed by the 2003 amendments to subsection (2)(b), which contain relatively minor modifications and clarifications of the 2001 amendments and "apply to workers' compensation injuries that occur on or after August 5, 1998."
It follows that the claimant's duty to object to the second FAL was governed by the law in effect prior to the 1998 amendments, and there was no requirement for the claimant to file an application for hearing on disputed issues ripe for hearing within thirty days of the FAL. Thus, even if the ALJ correctly construed the statute as meaning that a hearing is not requested until "set," that requirement does not apply to this claim for a 1994 injury. As noted above, the pre-1998 law required the claimant to file a written objection within sixty days of the FAL. Here, the claimant satisfied this requirement by filing an application for hearing on October 19, 2001. The application for hearing constituted written notification to the respondents that the claim was not amenable to closure without further administrative process, and prevented closure of the claim. See Dyrkopp v. Industrial Claim Appeals Office, 30 P.3d 821 (Colo.App. 2001); Mitchell v. Office Liquidators, Inc., W.C. No. 4-409-905 (September 29, 2000); Lee v. Arapahoe County, W.C. No, 4-215-262 (August 9, 1995).
We recognize that the October 19 application for hearing did not list the issue of medical benefits. We have previously held that a written objection preserves only those issues identified in the objection, and the FAL will close issues admitted in the FAL but not specifically addressed by the written objection. Campello v. Progressive Insurance Co., W.C. No. 4-205-461 (January 27, 2003) (written objection on issues of PPD and average weekly wage did not preserve issue of penalties); Vigil v. Jefferson County, W.C. No. 3-993-995 (January 7, 2003) (written request for disfigurement benefits not a written objection to FAL for any other purpose). Consistent with these cases, we held in Drinkhouse v. Mountain Board of Cooperative Education Services, W.C. No. 4-368-354 (February 7, 2003), that an application for hearing which listed the issue of medical benefits after MMI was not sufficient to preserve the issues of MMI and overcoming a DIME physician's opinion concerning MMI. On appeal, the court affirmed our decision, but on different grounds. The court ruled that the application for hearing was not timely filed. However, we understand the court to hold that any written objection which notifies the respondents that the claimant does not accept the FAL is sufficient to preserve all issues regardless of whether any specific issues are listed in the objection. Drinkhouse v. Industrial Claim Appeals Office, (Colo.App. No. 03CA0438, March 4, 2004) (not selected for publication). The court stated the following:
Aside from specifying that the objection must be written, § 8-43-203(2)(b) did not prescribe a particular form for contesting the FAL. The apparent purpose of requiring the claimant to object to the FAL is to notify the employer the claimant does not accept the employer's final position concerning the claimant's entitlement to additional benefits, and that there is an ongoing controversy that is not subject to resolution by administrative closure. Cf. Smith v. Myron Stratton Home, 676 P.2d 1196 (Colo. 1984) (purposes of requiring employers to admit or deny liability are to alert the claimant that he is involved in a situation with legal ramifications and assist the division in executing its administrative function).
Thus, any pleading that adequately notifies the employer that the claimant does not accept the FAL constitutes substantial, if not actual, compliance with the statutory obligation to "provide written objection." Section 8-43-203(2)(b); see EZ Bldg. Components Mfg., LLC v. Indus. Claim Appeals Office, 74 P.3d 516 (Colo.App. 2003) (concept of substantial compliance has been applied to various notice requirements in workers' compensation proceedings). (Emphasis added).
Here, the October 19 application notified the employer and insurer that the claimant did not accept the respondents' final position concerning entitlement to benefits, and the claimant was not amenable to administrative closure. Thus, the claimant at least substantially complied with the requirement to make written objection to the second FAL, and the failure to list any specific issue, including medical benefits, did not vitiate the effectiveness of the objection. The applicable statute did not impose any requirement that the written objection be specific, and the fact that some objections were specific should not be construed as an admission that the other issues admitted in the FAL were correct. Drinkhouse v. Industrial Claim Appeals Office, supra. Thus, the claimant's right to contest the issue of medical benefits was preserved, and the ALJ erred to the extent he held to the contrary.
However, even if we were to conclude that the 2001 version of the statute applies, we would not reach a different result. The 2001 version of the statute requires that the "revised final admission contain the statement required by subparagraph (II)." The obvious purpose of this requirement is to notify the claimant of the statutory effect of the FAL and failure to request a hearing on disputed issues which are ripe for a hearing. Peregoy v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 03CA0557, January 29, 2004) (§ 8-43-203(2)(b)(II) "requires notice to the claimant" that failure to contest admission in writing and request hearing on disputed issues ripe for hearing will result in closure).
Here, the second FAL filed by the respondents does not contain the requisite notice. Instead, it describes the procedure that existed before the 1998 amendments and makes no mention of any obligation to request a hearing on disputed issues ripe for hearing. Consequently, the second FAL does not comply with the notice requirements applicable to the current version of the statute, and would be insufficient to close the claim in the event the claimant failed to object and request a hearing. See Burns v. Northglenn Dodge, W.C. No. 4-486-911 (May 12, 2003); McCotter v. U.S. West Communications, Inc., W.C. No. 4-430-792 (March 25, 2002) (failure to attach medical reports as required by statute vitiated effectiveness of FAL).
It follows that the ALJ erred in denying and dismissing the claimant's request for medical benefits on grounds that the claim was closed by the second FAL. The matter must be remanded for a hearing on this issue.
IT IS THEREFORE ORDERED that the ALJ's order dated April 6, 2003, is reversed, and the matter is remanded for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Dona Halsey
Copies of this order were mailed to the parties at the addresses shown below on April 7, 2004 by A. Hurtado.
Bertha E. Martinez, P. O. Box 241, Kersey, CO 80644
Stanley and Beverly Bruntz d/b/a Bruntz Dairy, 21353 County Road 43, LaSalle, CO 80645
Legal Department, Pinnacol Assurance — Interagency Mail
Richard K. Blundell, Esq., 1020 9th St., #302, Greeley, CO 80631 (For Claimant)
T. Paul Krueger, II, Esq. and Doug Stratton, Esq., 2629 Redwing Rd., #330, Fort Collins, CO 80526 (For Respondents)