Opinion
W.C. No. 4-520-034
June 21, 2004
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Harr (ALJ) which awarded the claimant temporary total disability (TTD) benefits. The respondents contend the claimant waived the right to a Division-sponsored independent medical examination (DIME) on the issue of maximum medical improvement (MMI) because she accepted a lump sum payment from the insurer. The respondents further contend the ALJ erroneously concluded they did not overcome the DIME physician's finding that the claimant was not at MMI. The respondents also contend the claimant is not entitled to TTD benefits because she refused treatment and was responsible for a termination from employment. Finally, the respondents argue the award of TTD benefits should be limited by the $60,000 benefits cap. We affirm.
We previously issued an Order to Show Cause why the respondents' sixty-three page brief should not be stricken because of its excessive length. Upon consideration of the respondents' reply, the Order to Show Cause is discharged and the respondents' brief has been considered in its entirety.
The claimant sustained a compensable injury to her right elbow on February 20, 2001. The claimant was treated by Dr. Keller, who performed surgery to repair a tendon on May 17, 2001. Dr. Keller placed the claimant under restrictions against lifting and use of the right upper extremity which precluded her from performing some of the regular duties of her employment as a "freezer operator" on a production line. The employer accommodated these restrictions and the claimant returned to work with modified duties.
In October 2001 Dr. Keller referred the claimant to Dr. Lindell for an impairment rating. Dr. Lindell examined the claimant on December 13, 2001, but did not immediately issue an impairment rating. Instead, he referred the claimant for a thermography study because he feared the claimant's ongoing upper extremity symptoms represented reflex sympathetic dystrophy (RSD). The test was negative for RSD and Dr. Lindell issued a report, dated March 1, 2002, placing the claimant at MMI with a 27 percent impairment of the right upper extremity. The claimant was placed under permanent restrictions which precluded her from returning to her regular employment.
On April 16, 2002, the adjuster prepared a Final Admission of Liability (FAL) which admitted for permanent partial disability (PPD) benefits based on Dr. Lindell's extremity rating. On April 18, 2002, the claimant wrote a note to the adjuster stating that she "would like to receive my disability rating in one lump sum of $8,431.76." This amount, which represents the discounted and remaining balance of the admitted PPD award, was paid to the claimant by check on April 29, 2002. Also on April 29 the claimant, through counsel, objected to the FAL and filed a notice and proposal to select a DIME physician.
On April 23, 2003, the claimant met with the employer's safety supervisor, Mr. Thomas. Following this meeting the claimant was terminated from employment because, the ALJ found, the claimant could not perform her regular duties and the employer had no jobs available which were within the claimant's restrictions. (Finding of Fact 2).
The DIME was performed on August 15, 2002, and on that date the DIME physician issued a report opining the claimant was not yet at MMI. The DIME physician diagnosed "chronic epicondylitis post right lateral epicondylar strain, rule out radial nerve entrapment right radial tunnel." The DIME physician also diagnosed "chronic right shoulder pain and decreased range of motion with evidence of possible frozen right shoulder versus rotator cuff and impingement." The DIME physician recommended an EMG study of the right upper extremity to test for radial nerve entrapment, an MRI of the shoulder, and various drug therapies to treat the claimant's upper extremity symptoms. The DIME physician stated that the claimant appears to have developed frozen shoulder due to chronic pain and decreased usage of the right arm" following the elbow surgery. (Claimant's Exhibit 2; Findings of Fact 15-16).
The claimant returned to Dr. Keller in January 2003, but the claimant did not again receive treatment until July 2003. The ALJ found this delay was the result of the claimant's misunderstanding that Dr. Keller was seeking authorization from the insurer to conduct the tests recommended by the DIME physician.
The respondents did not file an admission of liability to contest the DIME physician's finding that the claimant was not at MMI, nor did the respondents file an admission of liability for TTD benefits. Thus, the claimant applied for a hearing seeking an adjustment in the average weekly wage and TTD from the date she was terminated from employment.
The ALJ found the claimant was entitled to TTD benefits commencing April 24, 2002. Specifically, the ALJ determined the claimant was not at MMI on April 24, and the effects of the injury continued to prevent the claimant from performing all of the duties of her regular employment. Moreover, the ALJ found the claimant's inability to perform the duties of work was the cause of the termination from employment. (Conclusion of Law D, Findings of Fact 22, 28).
The ALJ further found the respondents failed to file a request for hearing within thirty days of the DIME physician's report. Consequently, the ALJ concluded § 8-42-107.2(4), C.R.S. 2003, precludes the respondents from challenging the DIME physician's finding that the claimant is not at MMI, including the DIME physician's findings determinations about the cause of the claimant upper extremity symptoms. Alternatively, the ALJ found the respondents failed to overcome by clear and convincing evidence the DIME physician's determination that the claimant is not at MMI.
Finally, the ALJ rejected the respondents' contention that the claimant "waived" her right to request the DIME by accepting the lump sum payment issued by the insurer on April 29. In support, the ALJ found the claimant's April 18 note contains no statement that the claimant intended to surrender her rights to challenge the FAL and request a DIME by accepting the lump sum payment. Further, the ALJ found there was no written agreement establishing a waiver, and the claimant in fact challenged the FAL by filing an objection and notice and proposal on April 29.
I.
On review, the respondents' principal contention is that they overcame by clear and convincing evidence the DIME physician's finding that the claimant was not at MMI. They argue extensively that the ALJ's conclusions concerning the cause of the claimant's upper extremity symptoms are not supported by the evidence, especially with respect to the cause of the claimant's shoulder problems. However, the respondents do not dispute the ALJ's finding that they failed to file a timely request for hearing to challenge the DIME report. Instead, the the respondents seek to circumvent this issue by arguing that the claimant waived the right to the DIME by accepting the lump sum payment, and by arguing the DIME process does not apply because the issue involved compensability rather than MMI. However, we agree with the ALJ that the respondents lost the right to contest the DIME physician's finding concerning MMI. We further reject the respondents' arguments regarding waiver and the inapplicability of the DIME procedure. Because the respondents lost the right to contest the DIME physician's finding, we need not reach their argument that they overcame the DIME physician's finding by clear and convincing evidence.
Section 8-42-107(8)(b)(III), C.R.S. 2003, provides that a DIME physician's finding concerning MMI may be overcome only by clear and convincing evidence. Section 8-42-107.2(1), C.R.S. 2003, states that "this section governs the selection of an independent medical examiner, also referred to in this section as an "IME," to resolve disputes arising under section 8-42-107." Section 8-42-107.2(4), C.R.S. 2003, provides that within thirty days after the DIME physician's report is mailed, the insurer "shall either file its admission pursuant to section 8-43-203 or request a hearing before the division contesting one or more of the IME's findings or determinations contained in such report."
Section 8-42-107.2(4) is part of an overall statutory scheme designed to ensure the prompt payment of benefits without the necessity of litigation in cases which do not present a legitimate controversy. See Peregoy v. Industrial Claim Appeals Office, 87 P.3d 261 (Colo.App. 2004). The provisions of this statute are clear and require that the insurer either contest the DIME report within thirty days or admit in accordance with the report. City Market v. Industrial Claim Appeals Office, 68 P.3d 601 (Colo.App. 2003). Statutes which establish time limits for the initiation of review procedures are considered jurisdictional and must be strictly enforced. Digital Equipment Corp. v. Industrial Claim Appeals Office, 894 P.2d 54 (Colo.App. 1995); Meszler v. Freedom Communications, Inc., W.C. No. 4-488-976 (July 22, 2003).
Here, the ALJ found, and the respondents do not dispute, that they failed to request a hearing to contest the DIME physician's report finding that the claimant was not at MMI. The DIME physician's determination is therefore binding on the parties and the ALJ because the respondents did not timely act to contest the finding, and jurisdiction to hear such a contest has now been lost.
The respondents seek to avoid the consequences of their inaction by arguing the claimant waived the right to request a DIME by accepting the "lump sum" payment of April 29. The respondents principally rely on Brunetti v. Industrial Commission, 670 P.2d 1246 (Colo.App. 1983), as authority for their position. We are not persuaded.
Waiver is the voluntary and intelligent surrender of a known right. Johnson v. McDonald, 697 P.2d 810 (Colo.App. 1985). Waiver may be explicit or implied from conduct inconsistent with assertion of the right. However, a waiver implied from conduct must unambiguously reveal the party's intention to waive the right. Department of Health v. Donahue, 690 P.2d 243 (Colo.App. 1997). The question of whether a waiver has been shown is usually one of fact for determination by the ALJ, and we must uphold that determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003; Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988).
In Brunetti v. Industrial Commission, supra, the respondents filed an admission of liability for PPD benefits which contained the statement that unless the claimant contested the admission within thirty days the admission would be "approved" by the Director of the Division of Labor. The claimant did not contest the admission within thirty days, but "filed for a lump sum settlement" which was "granted" by the insurer. One year later the claimant sought additional benefits arguing in part that the claim remained open and there was no need to file a petition to reopen. The court held the claim was closed "not solely because of the filing of the admission," but also because the "claimant himself precipitated the closing of the claim by requesting a lump sum settlement." 670 P.2d at 1248.
Subsequently, in Johnson v. McDonald, supra, the court recognized several cases holding that an admission containing a notice of automatic approval within thirty days could, if uncontested, constitute an award for purposes of closing a claim. However, the court was careful to note in those cases, including Brunetti, the claimant "by his conduct tacitly agreed to accept the payments made under an admission of liability in settlement of his claim." In Johnson, the failure to object to the admission did not close the claim because there was no admission for PPD benefits, the claimant did not receive any such benefits, and the failure to object could not reasonably be construed as "settlement" of the claim.
Thus, in the Brunetti line of cases a "settlement" or waiver of the right to dispute the admission was inferred where the claimant was notified the claim would be considered closed if no objection was filed, the claimant did not object within the allotted time, and the claimant accepted payment under the admission. However, in this case the FAL notified the claimant of the right to object to the final admission and request a DIME. See § 8-43-203(2)(b)(II), C.R.S. 2003 (establishing notice requirements for an FAL). After the FAL was mailed, the claimant exercised her rights to challenge the FAL and request a DIME on April 29. Thus, as the ALJ recognized, this is not a case where the claimant, after receiving adequate notice of her rights, declined to challenge the admission and "tacitly" accepted a lump sum payment as a "settlement" of her claim. Neither the claimant's action in objecting to the FAL and filing a notice to select a DIME, nor the content of the April 18 letter, reflect the claimant's knowing and intelligent decision to surrender her rights to dispute the FAL and request a DIME. Further the adjuster's testimony suggets the claimant was not advised that acceptance of the lump sum would be considered by the insurer as a surrender of all rights to challenge the FAL. Consequently, the record fully supports the ALJ's finding that the claimant's conduct does not demonstrate the kind of knowing, intelligent and unambiguous conduct required to infer a waiver.
The respondents next seek to avoid the finality of the DIME physician's decision concerning MMI by arguing that the issue was "compensability" of the shoulder condition and, therefore, the DIME process does not apply. The respondents also assert that because the DIME physician found the claimant was not at MMI the "rating" was purely advisory and the related causation determination is immaterial. These arguments are not persuasive.
The DIME physician's opinions concerning MMI and permanent medical impairment are given presumptive effect. Both determinations inherently require the DIME physician to assess as a matter of diagnosis whether the various components of the claimant's medical condition are causally related to the industrial injury. Therefore, the DIME physician's determinations concerning causation are binding unless overcome by clear and convincing evidence. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186, 189-190 (Colo.App. 2002).
In contrast, the threshold question of whether the claimant has sustained a compensable injury in the first instance is one of fact which the ALJ must determine under the preponderance of the evidence standard. Consequently, the DIME physician's opinion on this issue is not entitled to special or presumptive weight. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844, 846 (Colo.App. 2000).
Here, unlike the situation in Faulkner, the existence of a compensable injury is not in question. Indeed, the respondents admitted the claimant sustained a compensable injury on February 20, 2001. The issue presented to the DIME physician and later the ALJ was the extent of the injury and whether the claimant needed additional diagnostic and curative procedures to diagnose and relieve the effects of the admitted injury. As the ALJ recognized, the DIME physician squarely addressed these questions and determined that the claimant's shoulder problem was probably related to the industrial injury and the claimant needed additional diagnostic and curative treatments to relieve this condition. Therefore, the issue of the cause of the claimant's shoulder (and other) symptoms was properly before the DIME physician, and his opinions on the causation issue became binding because of the respondents' failed timely to challenge them.
It follows that we need not address the respondents' contention that, contrary to the ALJ's alternative holding, they overcame the DIME physician's findings on causation by clear and convincing evidence. That issue was not properly raised because of the respondents' failure to request a hearing to challenge the DIME physician's findings.
II.
The respondents next advance two arguments that the claimant has no right to the TTD benefits awarded by the ALJ. First the respondents assert the claimant refused treatment and, therefore, was at MMI as a matter of law on several occasions. We disagree.
It is true that if a claimant refuses to undergo the only treatment which has a prospect for improving the claimant's condition, the claimant is at MMI as a matter of law. See MGM Supply Co. v. Industrial Claim Appeals Office, 62 P.3d 1001 (Colo.App. 2002). However, in this case the ALJ found no "persuasive evidence" that any such refusal ever occurred.
The ALJ's findings in this regard must be upheld if supported by substantial evidence in the record. Section 8-43-301(8). This standard of review requires us to view the evidence in a light most favorable to the prevailing party, and defer to the ALJ's resolution of conflicts in the evidence, credibility determinations and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). In determining the facts the ALJ need not credit the testimony of any witness, even if the testimony is not rebutted. Further, evidence not specifically addressed is considered to have been rejected. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000); Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993).
The respondents' assertion notwithstanding, the ALJ was not required to credit Dr. Keller's testimony that the claimant was, in effect, refusing treatment in the fall of 2001. Indeed, that assertion is inconsistent with the claimant's willingness to undergo further evaluation and treatment at the hands of Dr. Lindell after the referral by Dr. Keller.
Similarly, the ALJ was not persuaded the claimant refused any further treatment in January 2003. Instead, the ALJ found there was a misunderstanding and that the claimant believed Dr. Keller was seeking authorization for treatment from the insurer. This finding is fully supported by the claimant's testimony, and the ALJ resolved the conflicts in the evidence in favor of the claimant. (Tr. July 10, 2003, Pp. 84-85). We may not interfere with the ALJ's credibility determinations and the plausible inferences he drew from the record.
For the same reasons we reject the respondents' assertion that the claimant is disqualified from TTD because she was responsible for the termination from employment in April 2002. The respondents argue that nothing could be more "volitional" than refusing treatment, and this refusal ultimately caused the claimant to lose here job because she could not perform it.
The question of whether the claimant was "responsible" for a termination within the meaning of § 8-42-103(1)(g), C.R.S. 2003, and § 8-42-105(4), C.R.S. 2003, is ordinarily one of fact for the ALJ. Ellis v. All American Home of Colorado, Inc., W.C. No. 4-544-396 (June 26, 2003), aff'd. Ellis v. Industrial Claim Appeals Office, (Colo.App. No. 03CA1356, April 1, 2004) (not selected for publication). A claimant is not "responsible" for a separation if the effects of the injury prevent the claimant from performing the employment, and the disability is the cause of the separation. See Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002) ("responsible" does not refer to an injury or injury producing conduct, and the termination statutes do not apply where claimant is terminated because of the injury or injury producing conduct); White-Skunk v. QK, Inc., W.C. No. 4-500-149 (October 3, 2002).
As we have already held, substantial evidence supports the ALJ's finding that the claimant did not refuse treatment. Therefore, the evidence did not compel the ALJ to find that the claimant's own conduct caused the separation. Moreover, the ALJ affirmatively found the claimant was terminated because disability caused by the injury rendered her unable to perform her regualr duties, and the employer had no jobs to offer which were within the claimant's restrictions. This finding is amply supported by the testimony of the claimant as well as that of the safety manager. Thus, the record supports the ALJ's conclusion that the wage loss was caused by the injury, not the claimant's own conduct.
III.
The respondents next contend the ALJ erred because he did not apply the $60,000 benefits "cap" contained in § 8-42-107.5, C.R.S. 2003. The respondents reason the TTD benefits ordered by the ALJ exceed the cap and no physician has determined that the claimant's permanent impairment rating exceeds 25 percent. We reject this argument.
First, we agree with the claimant that this argument was waived. The respondents are seeking to reduce their liability based on the application of a statutory provision. As such, the cap constitutes an affirmative defense. See Safeway v. Industrial Claim Appeals Office, 968 P.2d 162 (Colo.App. 1998). Because the cap represents an affirmative defense the respondents were obligated to plead and prove its applicability. See Kersting v. Industrial Commission, 39 Colo. App. 297, 567 P.2d 394 (1977). Here, the record does not demonstrate that the respondents ever raised the cap until after the hearing was concluded and they submitted their position statement. Under these circumstances, the defense was not timely raised and need not be considered on appeal. See Kuziel v. Pet Fair, Inc., 948 P.2d 103 (Colo.App. 1997).
In any event, the argument lacks substantive merit. As held above, the DIME physician's finding that the claimant has not reached MMI is binding on the parties and the ALJ. MMI is a predicate to a determination of the claimant's medical impairment rating. MGM Supply Co. v. Industrial Claim Appeals Office, supra. Because the claimant has not reached MMI his permanent impairment rating cannot be determined and application of the cap is premature. Rogan v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA1770, October 9, 2003); Donald B. Murphy Contractors, Inc. v. Industrial Claim Appeals Office, 916 P.2d 611 (Colo.App. 1995).
IV.
Finally, the respondents also argue the ALJ erred by not granting them a credit for unemployment benefits and the PPD benefits paid to the claimant in a "lump sum." However, the claimant concedes in her brief that the respondents are entitled to offset these payments. Consequently, this issue is moot.
Insofar as the respondents make other arguments not discussed above, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ's order dated February 5, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. DeanNOTICE
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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was 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 June 21, 2004 by A. Hurtado.
Brenda Rivera, P. O. Box 176, Fort Morgan, CO 80701
Leprino Foods Company, 1830 W. 38th Ave., Denver, CO 80211-2225
ACE, U.S.A., P. O. Box 911, Portland, OR 97207-0911
Tim Guill, Esq., 3515 S. Tamarac Dr., #200, Denver, CO 80237 (For Claimant)
Karen E. Ford, Esq., 1675 Broadway, #2150, Denver, CO 80202 (For Respondents)