Opinion
W.C. No. 3-770-890
November 30, 1995
FINAL ORDER
Claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which denied and dismissed her request for medical benefits subsequent to maximum medical improvement (MMI). We affirm.
Insofar as pertinent, the record reveals that the claimant sustained a compensable injury in 1985. On December 17, 1987, the ALJ entered an order which awarded medical benefits, temporary disability benefits, and permanent partial disability benefits. The 1987 order also reserved "all other issues" for future determination. The 1987 order was upheld on appeal.
In 1994, the claimant requested additional medical benefits based upon Grover v. Industrial Commission, 759 P.2d 705, 711 (Colo. 1988). In Grover the Supreme Court held that the statutory language currently codified as § 8-42-101(1)(a), C.R.S. (1995 Cum. Supp.), entitles the claimant to medical benefits beyond MMI if there is substantial evidence at the time of the determination of permanent disability to support a finding that future medical treatment will be reasonably necessary to relieve the injured worker from the effects of the industrial injury. The respondents denied the claimant's request for Grover medical benefits on grounds that the claim was closed and the statute of limitations for reopening the claim had expired.
The issue of whether the claim was closed and barred from reopening was submitted to the ALJ on written arguments. Relying on Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991), the ALJ determined that the 1987 order closed the claim. Pursuant to the statutory language currently codified at § 8-43-303 C.R.S. (1995 Cum. Supp.) [formerly § 8-53-113 C.R.S. (1986 Repl. Vol. 3B)], the ALJ further determined that the claimant was precluded from obtaining additional benefits in the absence of an order reopening the claim. The ALJ found that the claimant had not filed a petition to reopen, and that the period provided by § 8-43-303 for the filing a petition to reopen had expired. Therefore, the ALJ denied and dismissed the claim for further medical benefits.
On appeal, the claimant does not dispute the ALJ's finding that the time for filing a petition to reopen expired if the claim was closed in 1987. However, the claimant contends, inter alia, that the ALJ misconstrued Brown Root, Inc. v. Industrial Claims Appeals Office, supra, in determining that the 1987 order closed the issue of Grover medical benefits. The claimant contends that the 1987 order did not close the issue of Grover medical benefits, because the order contemplated an award of ongoing medical benefits and reserved the issue for future determination. We reject these contentions.
In Brown and Root Inc. v. Industrial Claims Appeals Office, supra, an ALJ issued an order in 1984 which awarded medical benefits, denied a claim for temporary total disability benefits, and expressly reserved the issue of permanent disability benefits for future determination. In 1988, the claimant sought additional medical and temporary disability benefits and the respondents argued that the claim was closed absent a petition to reopen. On review, we concluded that the 1984 order only "closed" the claimant's entitlement to temporary disability benefits up to the date of the order. However, the Court of Appeals rejected our analysis. The court stated:
"We have no hesitancy in concluding that an order, whether resulting from an admission, an agreement, or a contested hearing . . . . which addresses each of the three types of benefits (medical, temporary disability, and permanent disability) and which grants or denies each type of benefit, constitutes an `award'."
Further, the court stated that "if an order either grants or denies temporary disability benefits and does not mention the issue of permanent disability, such order constitutes an award", and thus, a petition to reopen must be filed to pursue a claim for permanent disability benefits.
Here, the ALJ's 1987 order addressed medical benefits as well as the other two types of benefits listed in Brown Root. Under these circumstances, Brown Root compels the conclusion that the 1987 order constitutes an "award" for purposes of closing the claim. Therefore, the ALJ correctly ruled that the claim for Grover medical benefits is subject to the reopening statute.
In reaching this conclusion we recognize that the ALJ's 1987 order contained a clause "reserving" all other issues. However, the ALJ did not expressly reserve any part of the claimant's entitlement to medical benefits, temporary disability benefits or permanent disability benefits. Consequently, we agree with the ALJ that the general reservation clause does not preclude the 1987 order from being an "award."
Moreover, the Brown Root court's reference to a "reservation clause" contemplates cases where the ALJ's original order does not address all three types of benefits. Consequently, the 1987 reservation clause appears to be mere surplusage.
To the extent that the claimant suggests that the 1987 order contemplated a future award of Grover medical benefits, we are not persuaded. The claimant does not assert, and the ALJ's 1987 order does not suggest, that the claimant raised a claim for Grover medical benefits at the time of the 1987 order. See Grover v. Industrial Commission, supra; Milco Construction v. Cowan, 860 P.2d 539 (Colo.App. 1992); Anderson v. Ready Mix Concrete, W.C. No. 3-948-266, June 19, 1992 aff'd Anderson v. Ready Mix Concrete (Colo.App. No. 92CA1060, March 25, 1993) (not selected for publication) (the need for ongoing treatment must be presented at the time of determination of permanent disability or the issue is waived). Consequently, the fact that the 1987 order required the respondents to "pay all reasonable medical, surgical and hospitalization costs incurred secondary to Claimant's compensable injuries," does not, in and of itself, establish that the ALJ contemplated the payment of Grover medical benefits. Furthermore, the claimant's suggestion that this language constitutes an award of future medical benefits, is inconsistent with the fact that she applied for a hearing seeking an award of future medical benefits.
Admittedly, the ALJ's Finding of Fact 8 in the 1987 order states that in 1985 Dr. Walker recommended "continued physical therapy, massage, analgesics and muscle relaxants." However, Finding of Fact 8 need not be construed as a finding that the claimant was seeking Grover medical benefits. Rather, Finding of Fact 8 is pertinent to the ALJ's finding that the claimant reached MMI on December 10, 1985. See Reynolds v. Industrial Claim Appeals Office, 794 P.2d 1080 (Colo.App. 1990) (MMI exists when the underlying condition has become stable and further treatment will not improve the claimant's condition).
In view of our conclusion that the ALJ did not err in finding that the claim was closed we need not address the claimant's remaining arguments.
IT IS THEREFORE ORDERED that the ALJ's order dated June 21, 1995, 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, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.)
Copies of this decision were mailed November 30, 1995 to the following parties:
Kelly M. Stubbs, % Pamela J. Adams Donnelly, Esq., P.O. Box 2940, Colorado Springs, CO 80901
Albertsons, Inc., 777 S. Wadsworth Blvd., Lakewood, CO 80215
Pamela J. Adams Donnelly, Esq., P.O. Box 2940, Colorado Springs, CO 80901
(For the Claimant)
Andrew Fisher, Esq., 2900 E. Mexico Ave., Ste. 1000, Denver, CO 80210
(For the Respondent)
BY: _______________________