Opinion
W.C. No. 4-593-961.
October 20, 2005.
FINAL ORDER
The claimant seeks review of an order dated April 12, 2005 of Administrative Law Judge Mattoon (ALJ) that granted the respondents' request to strike the Division-sponsored independent medical examination (DIME). We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant sustained a compensable injury on September 8, 2003. The claimant was placed at maximum medical improvement (MMI) by an authorized treating physician and the respondents filed a Final Admission of Liability (FAL) on June 18, 2004. The claimant filed a Notice and Proposal to Select an Independent Medical Examiner (Notice) on July 28, 2004. The Notice was filed 40 days after the mailing of the FAL. The claimant attended the DIME and a report was issued. The respondents objected to the DIME on the basis that the Notice was not timely filed.
The ALJ concluded that the failure to file a timely Notice as required by the statute divests the ALJ of jurisdiction to hear any issues regarding the MMI and permanent partial disability (PPD) determinations of the authorized treating physician. The ALJ further concluded that the failure to timely file the Notice is a substantive jurisdictional defect controlled by § 8-42-107.2(2)(b), C.R.S. 2005 and therefore struck the DIME report. The ALJ also concluded that the doctrines of waiver and estoppel are not applicable to the issue of subject matter jurisdiction.
On review the claimant argues that the late filing of the Notice is simply procedural in nature and not substantive and therefore not jurisdictional. We disagree.
Subject matter jurisdiction "relates to the power or authority of the court to deal with a particular case." Sanchez v. Straight Creek Constructors, 41 Colo. App. 19, 580 P.2d 827 (1978). The ALJ's authority is strictly statutory and without subject matter jurisdiction, the ALJ has no authority to act. See Reed v. Industrial Claim Appeals Office, 13 P.3d 810 (Colo.App. 2000); Digital Equipment Corp. v. Industrial Claim Appeals Office, 894 P.2d 54 (Colo.App. 1995); Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). An ALJ's subject matter jurisdiction is created in and limited by the Workers' Compensation Act. Compton v. Industrial Claim Appeals Office, 13 P.3d 844 (Colo.App. 2000).
It is well established that a DIME is a jurisdictional prerequisite to the ALJ's adjudication of the claimant's medical impairment. Section 8-42-107(8)(c), C.R.S. 2005; Whiteside v. Smith 67 P.3d 1240 (Colo. 2003); Town of Ignacio v. Industrial Claim Appeals Office, 70 P.3d 513 (Colo.App. 2002); Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995). The procedures and time limits for requesting a DIME are established by § 8-42-107.2(b). The pertinent portion of § 8-42-107.2(2)(b) states:
"Unless such notice and proposal are given within thirty days after the date of mailing of the final admission of liability or the date of mailing or delivery of the disputed finding or determination, as applicable pursuant to paragraph (a) of this subsection (2), the authorized treating physician's findings and determinations shall be binding on all parties and on the division."
Here, it is undisputed that the claimant did not file a Notice for a DIME within 30 days of receiving the FAL. The filing of a Notice within the 30-day period provided by § 8-42-107.2(2) is a jurisdictional prerequisite to a DIME. Stein v. Community Agriculture Alliance W.C. No. 4-533-782 (October 5, 2004); Roddam v. Rocky Mountain Recycling W.C. No. 4-367-003, (January 24, 2005). Therefore, we perceive no error in the ALJ's order striking the DIME report.
The claimant further contends that respondents did not object to the DIME until the DIME physician's opinion was known by the parties and so waived any argument that the Notice was untimely filed. We disagree.
The courts have repeatedly held that subject matter jurisdiction cannot be acquired by waiver or estoppel. See Vieweg v. BF Goodrich Company 170 Colo. 71, 459 P.2d 759 (Colo. 1969) ; Industrial Commission v. Plains Utility Co., 127 Colo. 506, 259 P.2d 282 (1953); United States Fidelity Guaranty Co. v. Industrial Commission, 99 Colo. 280, 61 P.2d 1033 (1936); Hasbrouck v. Industrial Commission, 685 P.2d 780 (Colo.App. 1984). It follows that the ALJ's did not error in concluding that the doctrines of waiver and estoppel are not applicable to subject matter jurisdiction over the issues of MMI and (PPD) in this case.
IT IS THEREFORE ORDERED that the ALJ's order dated April 12, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ Curt Kriksciun ____________________ Tom Schrant Michael Read, Pueblo, CO, Marinela Rosendo, Mission Foods, Pueblo, CO, Commerce Industry, c/o Tina Gustafson, Shawnee Mission, KS, Stephen M. Johnston, Esq., Pueblo, CO, (For Claimant).Matthew C. Hailey, Esq., Denver, CO, (For Respondents).