Opinion
W. C. No. 4-649-193.
January 30, 2007.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) dated July 25, 2006, that ordered the respondents to reinstate temporary total disability benefits (TTD). We affirm.
The ALJ's pertinent findings of fact are as follows. On April 11, 2005, the claimant suffered an admitted industrial injury and was placed at maximum medical improvement (MMI) by Dr. Hattem on November 10, 2005. Dr. Hattem arrived at a total impairment rating of 19 percent whole person. The insurer filed a final admission of liability (FAL) on November 23, 2005 and attached a four-page narrative report from Dr. Hattem, but did not attach Dr. Hattem's range of motion or specific disorder worksheets. The claimant testified that that his copy of the FAL did not have attached any report of Dr. Hattem, but the ALJ found this testimony not credible. The claimant did not object to the FAL within 30 days.
The ALJ determined that the FAL did not contain Dr. Hattem's worksheets and, therefore, did not contain all of the medical reports upon which the admission was based. The ALJ found that the claimant did not waive his right to assert that the FAL was improperly filed, since the evidence did not establish an intentional relinquishment of a known right. The ALJ further found that the claimant was not estopped from asserting that the FAL was improperly filed. The ALJ determined that the claimant did not know the relevant facts concerning the deficiencies in the FAL and did not intend that his conduct be acted upon.
The ALJ, citing McCotter v. U.S. West Communications, Inc., W.C. No. 4-430-792 (March 25, 2002), concluded that the FAL was defective because it did not contain all of the worksheets in Dr. Hattem's report and that therefore the admission did not close the claim. The ALJ therefore determined that the FAL did not properly terminate the claimant's TTD benefits. The ALJ noted that the FAL did not explain why TTD benefits were terminated on September 28, 2005 if the supporting medical report established MMI on November 10, 2005. The ALJ ordered the insurer to reinstate TTD benefits at the admitted rate from September 28, 2005 and continuing thereafter until modified or terminated according to law.
The respondents appealed the ALJ's order and argue that they substantially complied with all statutory and regulatory requirements and that, in any event, the claimant waived the right to assert that the FAL was defective. We are unpersuaded that the ALJ committed reversible error.
We have previously held that an FAL which does not include the rating physician's entire report, including both the narrative discussion and ratings worksheets required by W.C. Rule of Procedure 5-5(A), 7 Code Colo. Reg. 1101-3 at 14, is insufficient to close the issue of permanent disability benefits for purposes of § 8-43-203(2)(b)(II), C.R.S. 2006. Bargas v. Special Transit W. C. No. 4-534-551 (June 4, 2004). The rationale for this holding is that the statute requires medical reports to be filed and "is designed to promote intelligent decision making by claimants" by informing them of the factual predicates for the admission and providing them with a basis to decide whether grounds exist to contest the FAL. McCotter v. U.S. West Communications, Inc., supra.
In Reed v. Demetre Painting, W.C. No. 3-069-138 (January 15, 1993), for example, we held that in the absence of full compliance with § 8-43-203(2), C.R.S. 2006 the claimant's failure to object to a final admission does not close the claim. In Reed the respondents had failed to attach the medical report on which the final admission for permanent disability benefits was predicated. We concluded that under those circumstances the claimant's failure to contest the defective final admission did not close the issue of permanent disability. Similarly, in Burns v. Northglenn Dodge, W.C. No. 4-486-911 (May 12, 2003), we held that a final admission containing the wrong notice under § 8-43-203(2) was invalid and did not close any issues, even absent an objection from the claimant. See also Maloney v. Ampex Corporation, W.C. No. 3-952-034 (February 27, 2001) (failure to attach medical reports as required by statute vitiated effectiveness of FAL).
It follows from this principle that if the FAL is not sufficient to close the issue of permanent disability benefits, it is also insufficient to close the issue of temporary total disability. See, Bargas v. Special Transit, supra, (if the FAL is not sufficient to close the issue of permanent disability benefits, it is also insufficient to trigger the statutory requirement to request a DIME within thirty days.)
Section 8-43-203(2)(b)(II), C.R.S. 2006, provides that where a FAL is predicated upon medical reports, such reports shall accompany the final admission. One obvious purpose of the requirements of § 8-43-203(2)(b) is to put the claimant on notice of the exact basis of admitted or denied liability so the claimant can make an informed decision whether to challenge the final admission. Cf. Bowlen v. Munford, 921 P.2d 59 (Colo.App. 1996); see also Avila v. Universal forest Products, W.C. No. 4-477-247 (August 25, 2004). We have previously held that in the absence of the respondents' full compliance with § 8-43-203(2)(b)(II), a claimant's failure formally to object to a FAL does not operate to close the claim. We adhere to our prior conclusions.
The respondents cite Carlson v. Informatics Corporation, W.C. No. 4-380-302 (November 1, 2002) in support of their argument that the claim was properly closed by the FAL despite the respondents' failure to attach certain worksheets. In Carlson we rejected the claimant's argument that a Division-sponsored independent medical examination (DIME) report was incomplete because it did not include an evaluation of mental impairment or the mental impairment worksheet as required by former Rule of Procedure XIX. We concluded that failure to comply with the precise requirements for completing the DIME physician's report did not require a new DIME, nor did it require that the ALJ conclude that the DIME report was overcome by clear and convincing evidence. In that connection we affirmed the ALJ's conclusion that the absence of the worksheets and supporting documentation from the DIME report was a "purely technical" deviation from Rule XIX, and that ultimately the question was whether the DIME doctor's opinion that the claimant sustained no mental impairment was overcome by clear and convincing evidence. We also noted that because the DIME doctor in Carlson did not diagnose the claimant as suffering from depression, it was unnecessary for him to include a mental impairment worksheet dealing with possible symptoms that, in his opinion, were not related to the industrial injury. Because the ALJ's factual findings supporting her order in Carlson were based upon substantial evidence in the record, we affirmed the order despite the arguable incompleteness of the DIME report.
We do not read Carlson, however, as compelling the conclusion here that the ALJ erred in ruling that the claim remained open despite the filing of the FAL. In Carlson we did not construe the requirement set forth in § 8-43-203(2)(b)(II) that every final admission contain the medical reports upon which it is premised. As noted, the purpose of that provision is to fully notify the claimant regarding the exact basis for the admitted compensation. If the claimant files no objection, the effect of the FAL is to close the claim and preclude any further benefits or compensation, subject only to the reopening provisions of § 8-43-303, C.R.S. 2006. Given that the FAL cuts off the claimant's right to any further benefits, we decline to conclude that the failure to attach complete copies of the medical reports is "purely technical" in nature, as was the omission of the mental impairment worksheets in Carlson.
The respondents also contend that the ALJ erred in imposing upon them the burden of showing that the FAL properly closed the claim. In general the proper allocation of the burden of proof is a substantial right of the parties, and it is reversible error if the burden is allocated improperly. Atlantic Pacific Insurance Co. v. Barnes, 666 P.2d 163 (Colo.App. 1983). However, in the present case regardless of what party had the burden of proof regarding the FAL there is substantial evidence and apparently no dispute that the respondents filed the FAL without impairment worksheets. Tr. 22. Therefore, the ALJ properly found that the defective final admission was invalid and consequently ineffective in closing any issues. Any error committed by the ALJ's misapplication of the burden of proof under these circumstances was harmless error. See A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988). (error which is not prejudicial will be disregarded)
The respondents next contend that the claimant waived his right to seek a Division-sponsored independent medical examination and object to the FAL. We disagree.
Waiver is the intentional relinquishment of a known right. A waiver must be made with full knowledge of the relevant facts, and the conduct should be free from ambiguity and clearly manifest the intention not to assert the right. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); Department of Health v. Donahue, 690 P.2d 243 (Colo. 1984). Waiver may be explicit, or it may be implied, as where a party acts inconsistently with the known right and where that action would prejudice the other parties. Vanderbeek v. Vernon Corp., 25 P.3d 1242 (Colo.App. 2000); Norden v. E.F. Hutton and Co Inc., 739 P.2d 914 (Colo.App. 1987); Klein v. State Farm Mutual Automobile Ins. Co., 948 P.2d 43 (Colo.App. 1987); Red Sky Homeowners Assoc. v. The Heritage Company, 701 P. 2d 603 (Colo.App. 1984).
Determination of whether there has been a waiver is generally a factual issue to be resolved by the ALJ. Johnson v. Industrial Commission, supra. We must uphold the ALJ's findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2006. In applying this standard, we must defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The ALJ determined that the evidence did not establish an intentional relinquishment on the claimant's part of a known right. The ALJ found that the claimant was not aware of his right to have attached to the FAL a complete supporting medical report, nor did he know that the FAL copy he received was not the same as the one filed with the Division. In this respect we note that the claims adjuster testified on behalf of the respondents that the claimant would not have the same report as was filed at the Division. Tr. 23. It is apparent from the record that the claimant did not have a complete supporting medical report and the ALJ could reasonably infer that the claimant did not know about his right to have the worksheets. Tr. 22. Further, the ALJ could reasonably infer from the record that the respondents were not ignorant of the true facts, nor did the respondents detrimentally rely on the claimant's conduct. Accordingly, there is substantial evidence in the record to support the ALJ's finding. Further we note that similar defense of waiver was rejected in McCotter v. U.S. West Communications, Inc., supra. Therefore, we conclude the ALJ did not err in finding the claimant had not waived the right to challenge the validity of the FAL.
IT IS THEREFORE ORDERED that the ALJ's order dated July 25, 2006 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________
Thomas Schrant
Albert Siegmund, 3580 Van Tey Linger Drive, Colorado Springs, CO 80917, Fore Property Company, Howard Stocking, 2829 Townsgate Road, Suite 250, Westlake Village, CA 91361
St. Paul Travelers, c/o Travelers Indemnity Company, Larry Peluso, P.O. Box 173762, Denver, CO 80217-3762
Alexander Ricci, P.C., William A. Alexander, Esq., 3055 Austin Bluffs Pkwy, Suite B, Colorado Springs, CO 80918 (For Claimant)
Ray Lego Associates, Frank M. Cavanaugh, Esq., 6060 So. Willow Drive, Suite 100, Greenwood Village, CO 80111-5168 (For Respondents)