Opinion
W.C. No. 4-366-740.
October 4, 2006.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated April 10, 2006 that determined that by applying for and accepting a lump sum, the claimant waived his right to challenge the admission filed by the respondents. We affirm.
The claimant injured his back on January 18, 1998, and received various treatment. The claimant was placed at maximum medical improvement (MMI) and Dr. Lockwood assigned the claimant a 20 percent whole person impairment rating. Dr. Lockwood did not include an impairment rating for any psychological condition. The respondents filed a final admission based on Dr. Lockwood's impairment rating report. The claimant objected to the admission and requested a Division-sponsored independent medical examination (DIME). The DIME physician opined that the claimant remained at MMI, and he assigned the claimant an 18 percent whole person impairment rating. The DIME physician opined that the claimant's gastrointestinal problems were not work-related. The DIME physician noted that the claimant suffered from psychological problems but he did not relate the psychological problems to the claimant's work injury nor did he provide an impairment rating for them. The respondents filed a final admission based upon the report of the DIME physician.
On March 17, 2005, the claimant applied for and was granted a lump sum payment of his remaining permanent partial disability benefits. Although the application for a lump sum is not contained in the record transmitted to this office, the ALJ was given a copy of the application and read the relevant portion of the form into the record. Tr. at 10. In addition the claimant in his brief has quoted the relevant section of the application. The application for lump sum form provides, above the applicant's signature that, "I accept the Admission of Liability as filed with regard to permanent benefits".
The ALJ determined that by applying for and receiving the lump sum, the claimant accepted the respondents' final admission of liability regarding permanent benefits and he effectively accepted the DIME physician's determination that the claimant had reached MMI for all work-related conditions. Furthermore, the ALJ determined that the claimant lost his right to challenge or overcome Dr. Beatty's determinations regarding MMI and the relatedness of other medical conditions, such as his gastrointestinal and psychological problems.
On appeal the claimant does not allege that he now has the right to overcome the opinions of the DIME physician with regard to the impairment rating. However, the claimant contends that he did not waive his right to challenge the DIME opinions concerning causation of his gastrointestinal disorder or his psychological condition. The claimant argues that he was not afforded notice that his action in signing the lump sum application would serve as a complete waiver of his right to challenge the DIME physician's opinions concerning the causation of his gastrointestinal and psychological conditions. We disagree.
Section 8-43-406(1), C.R.S. 2006 affords the Director of the Division of Workers' compensation (Director) discretionary authority to order "payment of all or any part of the compensation awarded in a lump sum." In Brunetti v. Industrial Commission, 670 P.2d 1246 (Colo.App. 1983), the court held the claim was closed by virtue of the claimant's application and receipt of a lump sum award for PPD consistent with the respondents' general admission of liability for permanent impairment.
The term "award" refers to benefits granted either by order or admission but in either case, the term contemplates a final decision on the merits. See L.E.L. Construction v. Goode, 849 P.2d 876 (Colo.App. 1992) rev'd on other grounds 867 P.2d 875 (Colo. 1994); Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991); Hoyle v. Bassett Bedding, W.C. No. 3-993-065 (August 6, 1998), aff'd., Bassett Bedding v. Industrial Claim Appeals Office (Colo.App. No. 98CA1667, April 22, 1999) (not selected for publication) ("award" means decision on merits). Applied here, § 8-43-406(1) inherently contemplates that the aggregate award of benefits has been established before the Director determines what amount should be paid in a lump sum. Indeed, without knowing the final amount of the award, the Director would be unable to exercise his discretion to determine whether a lump sum award is in the "best interests of the parties."
The rule of procedure formerly designated Rule XI(C), 7 Code Colo. Reg. 1101-3 at 39, provided for the filing of the application for a lump sum payment of an award. (The present rule effective January 1, 2006 is essentially unchanged and is found at Workers' Compensation Rules of Procedure 5-10, 7 Code Colo. Reg. 1101-3 at 81.) Rule XI (C) requires that a request for a lump sum payment shall be made on a form prescribed by the Division. It contains an express prohibition against awarding a lump sum where the claimant is protesting a final admission. Rule XI(C)(3)(c). Thus, the clear implication of the rule is that by filing the lump sum application the claimant accepted the final admission and waived his right to additional benefits.
Relying on Brunetti, we have concluded in a number of cases that a claimant's application for a lump sum award legally operates to close the issue of PPD. See Ezell v. Raintree Springs Homeowners Association, W.C. No. 4-352-777 (June 6, 2002); McClain v. City of Cripple Creek, W.C. No. 4-543-147 (November 1, 2004); Carey v. Sanmina-Sci, W.C. 4-58-019 (December 20, 2004). In Carey, McClain and Ezell the claimants, as the claimant did here, filed applications for a lump sum payment of PPD. We concluded that executing the application for a lump sum expressly accepted the admissions filed by the insurer as to the issue of PPD. In those cases we found that the record supported the finding that the claimant's conduct demonstrated the knowing, intelligent and unambiguous conduct required to infer a waiver. We are not persuaded by the claimant's arguments that the present case is distinguishable. Both the issues of causation and MMI are inherent in the determination of the extent of permanent disability, and acceptance of the award of permanent partial disability benefits necessarily implies that neither causation nor MMI is disputed. Thus, a waiver of the right to contest permanent disability benefits is also a waiver of the right to contest causation and MMI.
IT IS THEREFORE ORDERED that the ALJ's order dated April 10, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Curt Kriksciun
__________________________________ Thomas Schrant
Mark Simmons, Evans, CO, Colorado Carpet Cleaning, Aurora, CO, Pinnacol Assurance, Harvey D. Flewelling, Denver, CO, Pinnacol Assurance, Paula Fleming, Denver, CO, Ruegsegger, Simons, Smith Stern, LLC, Michelle S. Christopher, Esq., Denver, CO, (For Respondents).
Shawn Langley, Esq., Greeley, CO, (For Claimant).