Opinion
W.C. No. 4-543-106.
September 16, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) which denied additional permanent partial disability benefits (PPD). We affirm.
The pertinent facts are undisputed. The claimant suffered an admitted injury in September 2001. The respondents filed a Final Admission of Liability (FAL) for the payment of PPD benefits based on 18 percent whole person impairment and a scheduled disability of 4 percent. The claimant timely objected to the FAL and applied for a hearing on the issues of permanent total disability (PTD) and medical benefits after maximum medical improvement. Three months later the claimant sought to challenge the scheduled disability award and, therefore, moved to add the issue of PPD to the application for hearing.
The ALJ determined the issue of PPD was closed by the claimant's failure to endorse the issue of PPD on the original application for hearing. He also determined he lacked jurisdiction to add the issue of PPD to the application for hearing. Therefore, the ALJ denied the claim for PPD benefits in excess of the respondents' admitted liability.
Relying on our conclusions in Burns v. Northglenn Dodge, W.C. No. 4-486-911 (May 12, 2003), and Dyrkopp v. Industrial Claim Appeals Office 30 P.3d 821(Colo.App. 2001), the claimant contends that as a matter of law his application for a hearing on the issue of PTD was sufficient to preserve his objection to the FAL on the issue of PPD.
Subject matter jurisdiction concerns a court's authority to deal with the class of cases in which it renders judgment. Sanchez v. Straight Creek Constructors, 41 Colo. App. 19, 580 P.2d 827 (1978). Hence, a court lacks subject matter jurisdiction when an action is not timely filed pursuant to the deadlines established in a nonclaim statute. Public Service Co., v. Barnhill, 690 P.2d 1248, 1252 (Colo. 1984) ; Western Empire Constructors, Inc. v. Industrial Claim Appeals Office, 769 P.2d 1089 (Colo.App. 1989); Cornstuble v. Industrial Commission, 722 P.2d 448 (Colo.App. 1986).
Section 8-43-203(2)(b)(II), C.R.S. 2003, provides that issues admitted in a FAL are "automatically closed" unless within thirty days of the date of the FAL the claimant contests the FAL in writing and requests a hearing on any disputed issues that are ripe for hearing. The purpose of the requirement to request a hearing on disputed issues which are ripe for hearing within thirty days of the FAL is to encourage prompt adjudication of issues involving a legitimate controversy, and close issues over which there is no dispute. See Dyrkopp v. Industrial Claim Appeals Office, supra; Drinkhouse v. Mountain Board of Cooperative Education Services, W.C. No. 4-368-354 (February 7, 2003) , aff'd Drinkhouse v. Industrial Claim Appeals Office (Colo.App. No. 03CA0438, March 4, 2004) (not selected for publication). Accordingly, the court has concluded that the timely filing of an objection and application for hearing on the issue of PPD are jurisdictional prerequisites to a hearing on PPD. See Peregoy v. Industrial Claim Appeals Office, 87 P.3d 261 (Colo.App. 2004).
The claimant's contentions notwithstanding, this case is factually distinguishable from Burns v. Northglenn Dodge, supra. In Burns the insurer filed a FAL admitting for scheduled disability benefits based on a DIME physician's extremity rating. The Burns claimant timely objected to the FAL and applied for a hearing on the issues of temporary disability and penalties. The claimant requested penalties for the insurer's failure to admit liability for or request a hearing to contest the whole person impairment rating assigned by the DIME physician, and the insurer's failure to make a lump sum payment for uncontested whole person impairment benefits. The claimant subsequently moved to add the issue of PPD to the application on grounds it was inadvertently omitted. Under these facts the Panel concluded the claimant's initial application for hearing was sufficient to preserve the issue of PPD under § 8-43-203(2)(b)(II) because the application notified the insurer that the claimant disputed the FAL for scheduled disability benefits and was seeking PPD based on the DIME physician's whole person impairment rating. Moreover, the Panel concluded that due to a technical defect the FAL was legally insufficient to close the issue of PPD regardless of whether the claimant timely applied for a hearing on PPD.
Here, the claimant filed a timely objection to the FAL and applied for a hearing. However, nothing in the application notified the respondents that the claimant sought a hearing on the issue of PPD. Instead, the claimant essentially conceded the accuracy of the treating physician's finding of maximum medical improvement (MMI) by requesting medical benefits after MMI. See Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). Further, the claimant did not request a Division-sponsored independent medical examination as required by § 8-42-107(8), C.R.S. 2003, to dispute a treating physician's rating of permanent impairment. Rather, the only other issue endorsed for hearing was PTD benefits. Under these circumstances, the ALJ correctly determined the issue of PPD was closed and he lacked jurisdiction to hear the issue of PPD absent an order reopening the claim.
Neither are we persuaded that Dyrkopp v. Industrial Claim Appeals Office, supra, mandates the opposite result. In Dyrkopp the insurer filed a FAL which admitted liability for PPD benefits based on 23 percent whole person impairment. The FAL contained no specific notation concerning PTD but did state that "all benefits or penalties not admitted below are hereby specifically denied." The claimant did not timely object to the FAL and instead accepted the PPD award. The claimant later applied for PTD benefits and argued that because the FAL did not specifically deny liability for PTD benefits, the uncontested FAL did not preclude the claimant's receipt of PTD benefits. The court noted that "permanent partial disability benefits and permanent total disability benefits both compensate for a claimant's permanent loss of earning capacity." Id at 822. Therefore, the court held the insurer's admission for PPD benefits "constituted an implicit denial of liability" for PTD benefits and the claimant's failure to object to the FAL closed the issue of PTD. Id. at 822.
In this case, the claimant reasons that if an insurer can implicitly close the issue of PTD by admitting liability for PPD, then a claimant can implicitly raise the issue of PPD by applying for a hearing on PTD. We disagree.
Although PPD and PTD benefits are both designed to compensate for a permanent loss of earning capacity, the benefits require distinctive elements of proof. For example, medical impairment is dispositive of a claimant's entitlement to PPD. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). Further, where the insurer admits liability for a scheduled disability award the claimant must prove functional impairment not listed on the schedule of disabilities to obtain whole person impairment benefits. Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996). In contrast, PTD is not dependent on proof of whole person impairment or any rateable impairment. Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). Rather, PTD exists if the claimant has suffered a complete loss of access to the labor market and, as a consequence, is unable to earn wages. See Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). Accordingly, we reject the claimant's contention that as a matter of law his application for hearing on the issue of PTD necessarily disputed the FAL for purposes of PPD. In other words, the claimant's assertion that he suffered a complete and permanent loss of earning capacity did not inherently advise the respondents of the claimant's position that he accepted the treating physician's medical impairment rating, but disputed the FAL insofar as the scheduled rating was not converted to a whole person impairment rating.
IT IS THEREFORE ORDERED that the ALJ's order dated, March 12, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Alexander M. Quintana, Westminster, CO, Earle M. Jorgensen Co., Denver, CO, Reliance National Insurance Company, c/o Wendy Stalkfleet, BroadSpire, Denver, CO, Jennifer E. Bisset, Esq., Denver, CO, (For Claimant).
Tama L. Levine, Esq., Denver, CO, (For Respondents).