Opinion
W.C. No. 4-162-954
March 18, 1999.
FINAL ORDER
The respondent seeks review of orders issued by Administrative Law Judge Gandy (ALJ), dated January 24, 1996, and June 10, 1998, which determined the claimant suffered a compensable injury and awarded workers' compensation benefits. We affirm.
In 1992 the claimant sustained a compensable back injury. On July 7, 1993, Dr. Belleville placed the claimant at maximum medical improvement (MMI). The respondent filed a Final Admission of Liability dated July 30, 1993, which terminated temporary disability benefits effective July 6, 1993 and admitted liability for permanent partial disability benefits in accordance with Dr. Belleville's medical impairment rating. The claimant did not file an objection.
In the order dated January 24, 1996, the ALJ found that the respondent did not mail the Final Admission to the claimant's correct address, even though the claimant had provided her correct address. Consequently, the ALJ determined that the claimant's failure to file a written objection to the Final Admission did not close the claim.
Thereafter, the claimant requested a Division-sponsored independent medical examination (IME) on the issue of MMI. In a report dated September 30, 1997, the IME physician, Dr. Fink, diagnosed the claimant as suffering from "Major Depression" related to the industrial injury and recommended treatment. As a result, Dr. Fink opined the claimant was not at MMI.
In his order of June 10, 1998, the ALJ found that the respondent failed to overcome Dr. Fink's opinions by "clear and convincing" evidence. Therefore, the ALJ determined the claimant is not at MMI, and ordered the respondent to provide additional medical benefits and temporary total disability benefits retroactive to July 7, 1993.
I.
On review, the respondent concedes that the claimant is entitled to actual notice of the filing of a Final Admission. However, the respondent contends that the ALJ erroneously determined the claimant "never received" the Final Admission of Liability and was "never aware" the respondent sought to close the claim. (Finding of Fact 8; Conclusions of Law). In support, the respondent relies on the claimant's testimony that she reviewed the Final Admission at her attorney's office in the fall of 1994. (Tr. December 29 1995, pp. 9, 21). The respondent also contends that it "substantially complied" with the requirements of § 8-43-203(2), C.R.S. 1997 [amended in 1998 for claims arising on or after July 1, 1998]. Consequently, the respondent argues that the ALJ erroneously determined that the claimant's failure to file a written objection to the Final Admission did not automatically close the claim. We perceive no reversible error.
Former § 8-43-203(2)(b), provided in pertinent part, that:
"An admission of liability for final payment of compensation shall include a statement that this is the final admission by the workers' compensation insurance carrier in the case, that the claimant may contest this admission if the claimant feels entitled to more compensation, to whom the claimant should provide written objection, and notice that if the claimant does not contest the final admission in writing within sixty days of the date of the final admission the case will be automatically closed as to the issues admitted in the final admission."
The central rule of statutory construction is to effect the legislative intent. Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993). The obvious purpose of § 8-43-203(2) is to provide a method for closing claims without a hearing, while affording the claimant notice of the pending closure and affording the claimant an opportunity to object in a timely fashion. As such, the statute promotes the prompt payment of compensation without the necessity of litigation in cases where there is no legitimate controversy. Cibola Construction v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA0815, November 13, 1998).
The rules of statutory construction also require that words and phrases be given their plain and ordinary meaning, unless absurd. Ihnen v. Western Forge, 936 P.2d 634 (Colo.App. 1997). Further, where a statute specifies a particular application in a specific instance, it is ordinarily to be construed as excluding its operation in all unspecified situations. Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo.App. 1993). Section 8-43-203(2) requires that the Final Admission explicitly advise the claimant that the claim will be automatically closed unless the claimant files a written objection "within sixty days of the date of the final admission." The statute presumes the claimant will receive the admission in a timely fashion and creates no rule where the claimant does not receive the Final Admission within sixty days of the date of the Final Admission. Therefore, the statute has no application in this case.
Furthermore, there is no language in § 8-43-203 to support the respondent's contention that the time period for filing an objection is "tolled" until the claimant actually receives the Final Admission, and we may not read that language into the statute. See Kraus v. Artcraft Sign Co., 710 P.2d 480 (Colo. 1985). Rather, the statute expressly provides that "date of the final admission," and not the date of receipt is determines period for filing an objection.
In Bowlen v. Munford, 921 P.2d 59 (Colo.App. 1996), the court also held that § 8-43-203 and the Workers' Compensation Rules of Procedure, Part XI(B), Code Colo. Reg. 1101-3 at 39 require a Final Admission of liability to be mailed to the claimant's home address. Consequently, the court held that mailing of the Final Admission to the claimant's place of employment did not meet the requirements of the statute.
Here, the respondent concedes that the Final Admission was not mailed to the claimant's correct address. Therefore, we reject its contention that it "substantially complied" with the requirements of § 8-43-203(2). See Bowlen v. Munford, supra. To the contrary, the claimant's failure timely to object to a Final Admission forecloses the claimant's right to further benefits, and therefore, the statute is analogous to jurisdictional statutes whose provisions are strictly enforced. See Digital Equipment Corp. v. Industrial Claim Appeals Office, 894 P.2d 54 (Colo.App. 1995).
Moreover, there is no finding or assertion the claimant was aware of the Final Admission within sixty days of July 30, 1993. Under these circumstances, the ALJ correctly determined that the claimant was not aware of the Final Admission during the critical time period, and that the uncontested Final Admission did not automatically close the claim.
In view of our conclusions we need not consider the respondent's argument that the ALJ erroneously found the claimant established grounds to reopen the claim.
II.
Alternatively, the respondent contends Dr. Fink's IME report does not support a finding that the claimant did not reach MMI in July 1993. The respondent argues that Dr. Belleville never retracted his July 1993 determination of MMI and that Finn's opinion only supports a finding that the claimant was not at MMI as of September 1997. Therefore, the respondent argues the ALJ erred in reinstating temporary disability benefits retroactive to July 7, 1993. We disagree.
The purpose of conducting a Division-sponsored IME under the provisions of § 8-42-107(8)(b), C.R.S. 1998, is to determine the accuracy of the treating physician's finding of MMI. The "IME Examiner's Information Sheet" explicitly requires the IME physician to indicate whether he agrees with the treating physician's determination of MMI. In response to that question, Dr. Fink answered "no" and refused to assign a different MMI date. Instead Dr. Fink wrote, "no psychiatric MMI date has been set."
Further, Dr. Belleville agreed that the claimant's psychological condition is related to the industrial injury, and admitted that he did not consider the claimant's psychological condition when he determined her to be at MMI in July 1993. (Belleville depo. pp. 31, 39). Under these circumstances, the ALJ could, and did, reasonably interpret Dr. Fink's IME report as reflecting Dr. Fink's opinion that as of July 7, 1993, the claimant was not at MMI for all compensable components of the industrial injury.
Michael Crabb, Ph.D., (Crabb), who provided mental health therapy to the claimant, diagnosed the claimant with Major Depression due to chronic pain and loss of employment. Crabb opined that the claimant's depressive disorder is related to the industrial injury and that the claimant never met the criteria for MMI because the depressive disorder has not been adequately treated. (Crabb depo. pp. 12, 14, 16, 55; Crabb reports March 20, 1997; April 11, 1997). Consequently, the ALJ's interpretation of Dr. Fink's report is substantially supported by other medical evidence in the record.
In this case, the respondent terminated temporary disability benefits based upon MMI and it is undisputed that the claimant remains medically restricted from performing her regular employment. Consequently, the ALJ's finding that the claimant has not reached MMI for all compensable components of the industrial injury supports the award of temporary disability benefits retroactive to July 7, 1993. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995).
IT IS THEREFORE ORDERED that the ALJ's orders dated January 24, 1996 and June 10, 1998 are affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
_________________________________ Kathy E. Dean
NOTICE
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. 1997.
Copies of this decision were mailed MARCH 18, 1999 to the following parties:
Dorothy Tenorio, 1012 Garfield St., Fort Collins, CO 80524
Poudre Valley Hospital, Attn: Teri Shur, 1024 N. Lemay Ave., Fort Collins CO 80524
Denise Groves, Support Services, P.O. Box 22438, Denver CO 80222-0438
W. M. Busch, Jr., Esq., 903 N. Cleveland Ave., Suite A, Loveland CO 80537 (For Claimant)
Anne Smith Myers, Esq., Karen R. Wells, Esq., 3900 E. Mexico Ave., #1000, Denver CO 80-210 (For Respondents)
BY: ______________