Opinion
W.C. No. 4-651-643.
April 30, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated October 17, 2007 that determined her claim was closed by operation of final admissions filed by the respondent. We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant was injured in an admitted accident and her primary treating physician, Dr. Wunder, placed her at maximum medical improvement (MMI) and assigned a permanent impairment rating. On November 10, 2005, the respondent filed a Final Admission of Liability (FAL) consistent with Dr. Wunder's MMI and permanent impairment rating. The FAL stated that the respondent would provide maintenance care pursuant to Dr. Wunder's recommendations. The claimant did not timely object to the November 10, 2005 FAL, apply for a hearing or submit a Notice and Proposal for a Division independent medical exam (DIME). The claimant's care was later transferred to Dr. Holthouser who opined the claimant was no longer at MMI. The respondent voluntarily reopened the claim regarding medical treatment. On June 6, 2006, Dr. Holthouser noted that the claimant had again reached MMI and sustained no additional impairment. He also prescribed medical maintenance medications and commented that the claimant might require another rhizotomy. On June 21, 2006, the respondent filed a second FAL that was consistent with Dr. Holthouser's opinions. The claimant again did not timely object to the June 21, 2006 FAL, apply for a hearing or submit a Notice and Proposal for a DIME. The claimant eventually filed a Notice and Proposal for a DIME. The respondent opposed the request asserting that the claimant had waived her right to a DIME by failing to timely submit a Notice and Proposal.
The ALJ determined that because the claimant did not object, apply for a hearing or submit a Notice and Proposal for a DIME within 30 days of the filing of the November 10, 2005 FAL her claim closed on December 12, 2005 with regard to all issues except for medical maintenance treatment after MMI. The ALJ made similar findings to determine that, pursuant to a June 21, 2006 FAL, her claim closed on July 21, 2006 with regard to all issues except for medical maintenance treatment after MMI. The ALJ struck the DIME report, which the claimant had relied upon for additional permanent partial disability benefits.
I.
On appeal, the claimant first contends that the ALJ erred in relying on the finality of the November 10, 2005 FAL. The claimant argues the November 10, 2005 FAL was deficient because under the section in the admission provided for the carrier to state the basis for the admitted permanent disability award, the respondent had stated that permanent disability was pursuant to Dr. Wunder's attached report, but there was no reference to the date of the report in this section.
We first note that § 8-43-203(2)(b)(II) 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) (final admissions generally to be mailed to claimant's home address to provide effective notice); 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.
The claimant argues that there must be strict adherence to the mandatory requirements of the Workers' Compensation Rules of Procedure. The claimant specifically relies on W.C. Rule of Procedure 5-5(A), 7 Code Colo. Reg. 1101-3 at 14-15, which deals with admissions of liability and provides that a final admission "shall make specific reference to the medical report by listing the physician's name and the date of the report." Here, the ALJ found with record support that the November 10, 2005 FAL provided that maintenance care would be provided per "Dr. Wunder 10/17/2005 report, attached" and permanent disability would be provided "per Dr. Wunder report attached." Exhibit I at 154. The ALJ with record support found that Dr. Wunder's October 17, 2005 report with impairment rating worksheets was attached along with blank Objection to FAL forms and Notice and Proposal for a DIME forms.
In our view, the November 10, 2005 FAL fully complied with § 8-43-203(2)(b)(II) and Rule 5-5(A). The respondent attached to the FAL the complete report of Dr. Wunder and the FAL did make specific reference to the medical report by listing the physician's name and the date of the report. Here, the claimant was given all the information needed to make an informed decision whether to challenge the final admission. We do not read Rule 5-5(A) as requiring the respondent to recite the date of the physician's report each time it is used in the FAL. The single reference to the date of the physician's report in the FAL was sufficient to comply with Rule 5-5(A).
We recognized that the panel has 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 Rule 5-5(A) is insufficient to close the issue of permanent disability benefits for purposes of § 8-43-203(2)(b)(II), C.R.S. 2007. Bargas v. Special Transit W. C. No. 4-534-551 (June 4, 2004); Siegmund v. Fore Property Company, W.C. No. 4-649-193 (January 30, 2007). 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., W.C. No. 4-430-792 (March 25, 2002).
However, even if there was a failure by the respondent in its FAL to comply strictly with Rule 5-5(A), the FAL here is distinguishable from those defective final admissions held in the past to be invalid and therefore ineffective in closing any issues. 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. 2007, 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. Feeley v. Century Communications, W.C. No. 4-393-063 (July 06, 2007).
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 statue vitiated effectiveness of FAL).
As noted above one obvious purpose of the requirements of § 8-43-203(2)(b) and Rule 5-5(A) 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. In the present case, the claimant was given all the information needed to make an informed decision. The claimant was notified of the respondent's position on all issues including medical benefits after maximum medical improvement and permanent disability. The claimant was given Dr. Wunder's complete report, which informed the claimant of the factual predicates for the admission and provided the claimant with a basis to decide whether ground existed to contest the FAL. See McCotter v. U.S. West Communications, supra. Further, the claimant was given the means of disputing the respondent's position since the FAL had attached blank Objection to FAL forms and Notice and Proposal for a DIME forms. There is no allegation that the FAL did not meet all the requirements of § 8-43-203(2)(b)(II). Therefore, the ALJ correctly found that the claimant's failure to object to the November 10, 2005 FAL closed the claim as to the issues admitted in the final admission.
II.
The claimant also argues that because the respondent voluntarily reopened the claim the November 10, 2005 FAL cannot be held to have closed the claim. We disagree.
An uncontested final admission of liability automatically closes a case "as to the issues admitted in the final admission." Section 8-43-203(2)(b)(II); Cibola Constr. v. Industrial Claim Appeals Office, 971 P.2d 666, 667 (Colo.App. 1998); Cooper v. Industrial Claim Appeals Office 109 P.3d 1056 (Colo.App. 2005). Accordingly, the failure to properly contest a FAL closes the claim on all admitted issues. Dyrkopp v. Industrial Claim Appeals Office 30 P.3d 821(Colo.App. 2001). In addition, we have previously held that a voluntary reopening of a claim on one issue does not automatically establish the claim is reopen for other issues. Vigil v. Jefferson County W. C. No. 3-993-995 (January 7, 2003); See Notz v. Notz Masonry Inc., W.C. No. 41-58-043 (September 30, 1999); see also, Casias v. City of Longmont, W. C. No. 4-357-048 (August 16, 2004) (upholding ALJ in finding respondent did not voluntarily reopen on all issues by voluntarily reopening claim for additional medical benefits).
The claimant's argument here is similar to the argument rejected in Drinkhouse v. Mountain Board of Cooperative Education Services, W.C. No. 4-368-354 (February 7, 2003), affd Drinkhouse v. Industrial Claim Appeals Office, No. 03CA0438 (Colo.App. Mar. 4, 2004) (not selected for publication). In Drinkhouse, the claimant objected to a FAL on the issue of Grover-type medical benefits. The insurer subsequently agreed to provide Grover medical benefits. Later the insurer filed a revised FAL which admitted for Grover-type medical benefits, but was otherwise identical to the previously filed FAL. The claimant filed a written objection to the revised FAL and then applied for a hearing on various issues including MMI and permanent partial disability. An ALJ found the issues of MMI and PPD were closed by the claimant's failure to object to the earlier FAL on any issue other than Grover-type medical benefits and, therefore, the claimant's objection to the revised admission was immaterial. The court upheld the ALJ's order on appeal.
Here the ALJ found, and the claimant does not contest, that the respondent voluntarily reopened the claim regarding "pre-MMI medical treatment." Therefore, the issue of permanent partial disability was not voluntarily reopened by the actions of the respondent and that issue remained closed pursuant to the November 19, 2005 FAL.
III.
The claimant contends that the June 21, 2006 FAL is invalid because it fails to reference Dr. Holthouser's report, fails to provide the date of Dr. Holthouser's report and failed to attach Dr. Wunder's report as the basis for the admitted five percent impairment. We disagree.
The ALJ noted that the June 21, 2006 FAL did not reopen the issue of permanent impairment because the respondent did not admit to any additional impairment. The ALJ further found with record support that Dr. Holthouser's June 6, 2006 report was attached to the June 21, 2006 FAL, as were the objection to FAL form and the Notice and Proposal to Select a DIME form. Exhibit J at 184. The reference to Dr. Holthouser's report in the FAL is made on the section of the form designated for the respondent to state a position on medical benefits after maximum medical improvement. In the section designated for remarks on permanent disability the respondent stated that it admitted for permanent disability pursuant to "Dr. Wunder's report, see previous FAL. No additional PP." Therefore, the ALJ found that the respondent was not required to attach Dr. Wunder's October 17, 2005 report to the June 21, 2006 FAL. The ALJ determined that because the claimant did not object to the FAL, apply for a hearing or submit a Notice and Proposal for a DIME within 30 days of the filing of the June 21, 2006 FAL the claim closed on July 21, 2006 with regard to all issued except for medical maintenance treatment after maximum medical improvement.
We agree with the ALJ. In our view the June 21, 2006 FAL fully complied with the requirements of § 8-43-203(2)(b)(II) and Rule 5-5(A). The respondent attached to the FAL the complete report of Dr. Holthouser, which supported their position on the only remaining issue of medical benefits. The June 21, 2006 FAL did make specific reference to the medical report by listing the physician's name and the date of the report.
Further, here the claimant was given all the information needed to make an informed decision whether to challenge the final admission. Therefore, the claimant's failure to object to the June 21, 2006 FAL closed the claim as to the issues admitted in the June 21, 2006 FAL. IT IS THEREFORE ORDERED that the ALJ's order issued October 17, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
GLADYS SILVA, LOVELAND, CO, (Claimant).
POUDRE SCHOOL DISTRICT, Attn: KRISTIN BENNETT, FT COLLINS, CO, (Employer).
MORRELL LAW OFFICE, Attn: BRITTON MORRELL, ESQ., CO, (For Claimant).
RITSEMA LYON, PC, Attn: PAUL D FELD, ESQ., CO, 80202 (For Respondents).
CCMSI, Attn: VICKY RODEN, GREENWOOD VILLAGE, CO, (Other Party).