Opinion
W.C. No. 4-315-470
May 5, 2003
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Klein (ALJ) which denied temporary disability benefits. We set aside the order and remand the matter for entry of a new order.
The pertinent facts are undisputed. The claimant suffered work-related injuries in a motor vehicle accident on October 3, 1996. The respondents paid temporary total disability benefits from October 4, 1996, through March 11, 1998, the date the claimant was placed at maximum medical improvement (MMI). A Division-sponsored medical examination (DIME) physician assigned a 4 percent whole person impairment rating.
The claimant subsequently applied for a hearing on the issues of MMI and medical benefits. Neither party disputes that prior to the hearing, the respondents agreed to provide additional medical benefits in the form of neuropsychological testing by Dr. Sokol, who recommended a referral to Dr. Esses for treatment of the claimant's inner ear problems. Dr Sokol also recommended the claimant be examined for possible vision field deficits. The respondents authorized additional treatment with Dr. Esses and Politzer.
In an order dated August 15, 2000, an ALJ upheld the determination of MMI. However, the claimant was awarded future medical benefits including "cognitive compensatory skills strategies" with Dr. Stevens and "reasonable maintenance treatment for the Claimant's emotional distress." No appeal was taken from that order.
The claimant treated with Dr. Esses and Dr. Politzer between June 27, 2000, and June 25, 2002. On May 17, 2001, the respondents filed a final admission for the payment of medical impairment benefits based on 4 percent whole person impairment and medical benefits of $3681.03. Liability for further medical benefits was denied.
In July 2002, the claimant filed an application for hearing and requested an order requiring the respondents to provide additional treatment from Dr. Esses. The claimant also alleged she was not at MMI between June 27, 2000 and July 25, 2001, and requested additional temporary disability benefits. (Tr. p. 3).
At the commencement of the hearing, the respondents acknowledged their agreement to provide treatment from Dr. Esses. Therefore, the issue of medical benefits was withdrawn. (Tr. p. 5). On the issue of temporary disability, the respondents argued the claim was closed and subject to the requirements of the reopening statute at § 8-43-303, C.R.S. 2002.
The ALJ determined the May 17 final admission was defective because it did not contain a notice consistent with the requirements of § 8-42-203(2)(b), C.R.S. 2002. Therefore, the ALJ found the claim was not closed and no petition to reopen was required. However, the ALJ found the claimant failed to sustain her burden to prove the industrial injury caused any auditory or visual problem. The ALJ also found the respondents' payment of medical bills for treatment of these conditions was insufficient to establish the respondents' liability for additional disability benefits. Therefore, the ALJ denied the claim for temporary partial disability benefits.
On review, the claimant contends the ALJ erred in requiring her to prove a causal connection between the visual/auditory problems and the industrial injury. In support, the claimant alleges the respondents' judicial admission for the payment of additional treatment by Dr. Esses confessed a causal connection between her auditory/visual problems and the industrial injury. Alternatively, the claimant contends she was denied adequate notice that causation was disputed. We conclude the claimant did not have adequate notice of the need to prove causation. Therefore, we remand for further proceedings.
To receive temporary disability benefits, a claimant must establish a causal connection between the industrial injury and the post-injury loss of wages. Section 8-42-103(1), C.R.S. 2002. Once established, benefits continue until the respondent proves grounds for the termination of benefits. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995). Section 8-42-105(3)(a), C.R.S. 2002, terminates temporary disability benefits when the claimant reaches MMI. However, a claimant may be entitled to additional temporary disability benefits after MMI if the claimant suffers a worsening of condition and the worsened condition caused a "greater impact" on the claimant's temporary work capacity than existed at the time of MMI. City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997).
Here, the August 15 order upheld the DIME physician's determination of MMI. Consequently, as a matter of law the claimant is precluded from recovering additional temporary disability benefits in the absence of proof that she is no longer at MMI for the industrial injury, that she suffered a worsening of condition from the industrial injury, and that the worsened condition caused a greater wage loss than existed at MMI. City of Colorado Springs v. Industrial Claim Appeals Office, supra.
A judicial admission is binding on the party who makes it and may be the basis of a judgment. Durbin v. Bonanza Corp., 716 P.2d 1124, 1128 (Colo.App. 1986). Further, an oral stipulation is an enforceable judicial admission. Kempter v. Hurd, 713 P.2d 1274 (Colo. 1986).
The claimant testified that she treated with Dr. Politzer for visual problems and with Dr. Esses for dizziness and fullness of the ear. (Tr. pp. 14-17). Similarly, Dr. Politzer's medical reports dated June 29, 2000, March 30, 2001, and June 25, 2001 contain evidence that Dr. Politzer treated the claimant for vision problems. The Porter Adventist Hospital Surgical Report dated May 10, 2001 indicates Dr. Esses surgically treated the claimant for problems with her ears.
The respondents voluntarily agreed to provide treatment by Dr. Esses and Dr. Politzer. Further at the commencement of the hearing on November 5, 2002, the claimant's attorney stated:
"With respect to the issue of medical benefits, it's my understanding that [respondents' attorney], as he has in the past, is agreeing that [the claimant] can treat with Dr. Barbara Esses."
In response the respondents' attorney stated, "That's correct." (Tr. p. 5). Under these circumstances, the respondents voluntarily admitted there is a causal connection between the industrial injury and the claimant's auditory/visual problems for purposes of medical treatment.
However, the record is legally insufficient to ascertain the scope of the respondents' judicial admission. As a result, we are unable to ascertain whether the statement by respondents' counsel represents an admission that Dr. Esses is authorized, that previously provided treatment by Dr. Esses is authorized an causally related to the industrial injury, or that future treatment by Dr. Esses is reasonable and related to the industrial injury. Further, there is insufficient evidence in the record from which we can determine whether the respondents' May 17 final admission for medical benefits of $3681.03, includes treatment for the claimant's auditory/visual problems. Under these circumstances, the record does not compel the conclusion the respondents' oral stipulation waived any dispute that the claimant's auditory/visual problems were causally related to the industrial injury.
Nonetheless, where an administrative adjudication turns on issues of fact, due process requires that parties be given adequate notice of the legal and factual issues to be litigated. Cf. Monarrez v. Industrial Claim Appeals Office, 835 P.2d 607 (Colo.App. 1992) (interpreting requirement of "fair hearing" in context of unemployment compensation); Sands v. Industrial Claim Appeals Office, 801 P.2d 12 (Colo.App. 1990). As a result of the parties' agreement on the issue of medical benefits and the parties' preliminary disagreement concerning whether the claim was closed, the claimant did not clearly articulate the basis of her claim for additional temporary disability benefits and the respondents did not specifically articulate whether they contested the causal relationship between the industrial injury and the claimant's worsened condition. Consequently, the claimant was not afforded adequate notice she was required to prove the auditory/visual problems were causally related. Under these circumstances, the matter must be remanded to the ALJ for further proceedings which afford the claimant an opportunity to present evidence on the cause of the allegedly disabling medical conditions which form the basis for the claim for additional temporary disability benefits. The ALJ shall also afford the respondents an opportunity to present evidence on the causation issue.
Further, the ALJ shall determine whether the claimant proved a worsening of the industrial injury which caused an additional wage loss. Based on these factual determinations, the ALJ shall enter a new order concerning the respondents' liability for additional temporary disability benefits.
We also note the respondent contests the ALJ's determination the claim was not closed by virtue of the May 17, 2001 Final Admission of Liability. However, the respondents did not file a petition to review. Consequently, the argument is not properly before us on review. See Newman v. McKinley Oil Field Service, 898 P.2d 238 (Colo. 1984) (failure to file timely petition to review deprives us of jurisdiction because no appellate process initiated until timely document presented).
IT IS THEREFORE ORDERED that the ALJ's order dated November 18, 2002, is set aside and the matter is remanded for the entry of a new order on the issue of temporary disability benefits consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
Copies of this decision were mailed May 5, 2003 to the following parties:
Marilyn T. Tallon, 1774 Antero Dr., Longmont, CO 80501
Continental Binder and Specialty Company, 2765 S. Colorado Blvd., #216, Denver, CO 80222
Liberty Mutual Fire Insurance, P. O. Box 3539, Englewood, CO 80155-3539
Laurence J. Free, Esq., 1199 Bannock St., Denver, CO 80204 (For Claimant)
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
BY: A. Hurtado