Opinion
W.C. No. 4-437-951.
October 29, 2003.
ORDER
The claimant seeks review of orders of Administrative Law Judge Klein (ALJ) dated February 3, 2003, and February 10, 2003. We set aside the orders and remand the matter for entry of new orders.
On May 11, 1999, the claimant suffered compensable injuries to her upper extremities. On August 18, 2000, the respondents filed a Final Admission of Liability for the payment of scheduled disability benefits. The claimant objected to the Final Admission and requested a Division-sponsored independent medical examination (DIME). The DIME physician opined the claimant was not at maximum medical improvement (MMI). Thereafter, the respondents voluntarily provided additional treatment.
On November 6, 2001, the treating physician opined the claimant reached MMI. The DIME physician conducted a follow-up examination in which she agreed with the treating physician's determination of MMI. The DIME physician then opined the claimant sustained 35 percent impairment to the right upper extremity which she converted to 21 percent whole person impairment; 9 percent impairment to the left upper extremity which she converted to 5 percent whole person impairment, which equals a total of 25 percent whole person impairment. The DIME physician added another 15 percent for impairment of the cervical spine. Thus, the DIME physician's total rating for all injuries was 36 percent whole person impairment.
The respondents requested a hearing to overcome the DIME physician's impairment rating. A hearing was scheduled for December 12, 2002. In the order dated February 3, 2003, the ALJ determined the respondents sustained their burden to prove the DIME physician erroneously included a 15 percent whole person rating for impairment to the cervical spine. The ALJ then ordered the respondents to pay permanent partial disability benefits "consistent with" the DIME physician's 35 percent right upper extremity rating and 9 percent left upper extremity rating. The claimant timely appealed the order.
On January 6, 2003, the claimant applied for a hearing on the issues of permanent total disability (PTD), average weekly wage (AWW) and medical benefits after MMI ( Grover-type benefits). The respondents moved to strike the application for hearing on grounds these issues were closed. The ALJ's order dated February 10, 2003, granted the respondents' motion to strike and the claimant timely sought review.
I.
On review of the February 3, 2003 order, the claimant contends the respondents did not dispute the DIME physician's whole person impairment ratings for the upper extremity injuries and chose to dispute only the DIME physician's cervical rating. Therefore, the claimant contends the respondents waived the right to contest the DIME physician's 25 percent whole person impairment rating for the upper extremity injuries. We disagree, but set aside the order on other grounds.
Section 8-42-107(1)(a), C.R.S. 2002, provides that permanent disability benefits are limited to benefits under the schedule of disabilities where the claimant suffers an injury or injuries described in § 8-42-107(2). Subsection (1)(b) provides that permanent disability is limited to medical impairment benefits under § 8-42-107(8), C.R.S. 2002, where the claimant suffers an injury or injuries not described in the schedule of disabilities. In this context, the term "injury," refers to the manifestation in a part or parts of the body which have been functionally impaired or disabled as a result of the industrial accident. Walker v. Jim Fouco Motor Company, 942 P.2d 1390 (Colo.App. 1997). Where the parties dispute whether the claimant suffered an injury on or off the schedule of disabilities, the situs of the claimant's functional impairment is a question of fact for resolution by the ALJ. Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996).
In the ordinary case where the respondents dispute a DIME physician's whole person impairment rating for an upper extremity injury, the claimant bears the burden to prove that her functional impairment does not appear on the schedule. See Strauch v. Swedish Healthcare System, supra; James v. Information Handling Systems, W.C. Nos. 4-223-210 4-197-026, (March 27, 1996). If the claimant succeeds in establishing "functional impairment" not found on the schedule, the claimant is entitled to whole person medical impairment benefits under § 8-42-107(8)(c). In such circumstances, the whole person impairment rating of the DIME physician is binding unless overcome by clear and convincing evidence. See Delaney v. Industrial Claim Appeals Office, 30 P.3d 691 (Colo.App. 2000) (DIME provisions apply to non-scheduled, but not scheduled impairments).
Waiver is the intentional relinquishment of a known right. A waiver must be made with full knowledge of the relevant facts, and the conduct should be free from ambiguity and clearly manifest the intention not to assert the right. Johnson v. Industrial Commission, supra; Department of Health v. Donahue, 690 P.2d 243 (Colo. 1984).
The respondents' Application for Hearing endorsed the issue of permanent partial disability benefits and specifically indicated that the respondents sought to overcome the DIME's physician's impairment rating. At the commencement of the hearing, the respondents' attorney stated that the respondents' "primary objection" was the DIME physician's inclusion of the medical impairment rating for permanent impairment to the neck. The respondents argued that "only the ratings for the upper extremities are appropriate." (Tr. pp. 4, 6).
The partial loss of use of the arm at the shoulder is included on the schedule of disabilities at § 8-42-107(2)(a). However, impairment of the "upper extremity" is not listed on the schedule of disabilities. See Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996) (schedule of disabilities is all-inclusive and there are no statutory provisions to add additional injuries to that list). Further, in Strauch v. PSL Swedish Healthcare System, supra, the court rejected an argument that the "loss of the arm at the shoulder" is the equivalent to an "amputation of the upper extremity" under the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised, (AMA Guides). Cf. Mountain City Meat Co. v. Industrial Claim Appeals Office, 904 P.2d 1333 (Colo.App. 1995) (physical impairment ratings in AMA Guides are inconsistent with the ratings in the schedule of disabilities), aff'd., Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996). Thus, a rating of impairment to the upper extremity does not necessarily limit the claimant to a scheduled disability award.
It follows that the respondents' willingness to pay benefits based on the DIME physician's ratings for the upper extremities does not necessarily evidence a knowing and voluntary waiver of the right to require the claimant to prove that her upper extremity injuries caused functional impairment beyond the arm at the shoulder. See Hanna v. Print Expediters Inc., ___ P.3d ___ (Colo.App. No. 02CA2237, June 5, 2003) (public policy doctrines militate against application of waiver doctrine to W.C. claims). To the contrary, the statements by respondents' counsel could be understood to reflect either a concession that the DIME physician's ratings for the upper extremity injuries were correct or that the DIME physician's upper extremity ratings were correct.
The issue is further complicated by the respondents' post-hearing position statement which requests that the claimant be limited to the "25% upper extremity rating provided by the" DIME physician or the treating physician's upper extremity rating. The DIME physician did not assign a "25%" scheduled disability rating. Rather, the DIME physician assigned upper extremity ratings of 35 percent and 9 percent which she converted to 25% whole person impairment. Thus, it is unclear from the respondents' position statement whether they were accepting liability for only 25 percent of the DIME physician's upper extremities ratings or the DIME physician's 25 percent whole person impairment rating.
For these reasons, the record is legally insufficient to establish the claimant was afforded adequate notice of the respondents' contention that the claimant is limited to a scheduled disability award for the upper extremity injuries. See Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990) (where an administrative adjudication turns on issues of fact, due process requires that parties be given adequate notice of the pending adjudication in order to present evidence and argument in support of their positions). Therefore, we set aside the ALJ's award and remand the matter for further proceedings which afford the parties an opportunity to litigate the question of whether the claimant's upper extremity injuries should be compensated as whole person impairment.
II.
On review of the February 10 order the claimant contends the ALJ erroneously applied the 2001 amendments to § 8-43-203(2)(b)(II), in vacating her January 2003 application for hearing. We agree.
Former § 8-43-203(2)(II), C.R.S. 2000, provides 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. . . . and notice that the case will be automatically closed as to the issues admitted in the final admission if the claimant does not, within thirty days after the date of the final admission contest the final admission in writing and request a hearing on any disputed issues that are ripe for hearing, including the selection of an independent medical examiner." (Emphasis added).
The statute was amended by House Bill 01-1116 (HB 1116) [2001 Colo. Sess. Laws, ch. 23 at 49] to add that:
"However, if an independent medical examination is requested pursuant to section 8-42-107.2, the request for hearing on disputed issues that are ripe for hearing need not be filed until after completion of the Division's independent medical examination. The respondents shall have thirty days after the date of mailing of the report from the division's independent medical examiner to file a revised final admission or to file an application for hearing. The claimant shall have thirty days after the date respondents file the revised final admission or application for hearing to file an application or response for hearing on any issues that are ripe for hearing." (Emphasis added).
HB 1116 also states that "[T]his act shall take effect upon passage and shall apply to final admissions issued on or after said date." The act was approved March 11, 2001.
The ALJ determined the act became effective on March 11, 2001, regardless of whether a final admission was filed after March 11, 2001. Accordingly, the ALJ determined that insofar as the claimant requested a hearing on the issues of PTD, AWW and Grover-type benefits, HB 1116 required the claimant to file an application for hearing within 30 days of August 26, 2002, the date the respondents filed an application for hearing to contest the DIME physician's 36 percent impairment rating. Because the claimant's application for hearing was not filed until February 5, 2003, the ALJ determined the issues were closed.
The rules of statutory construction require that a statute be given the underlying legislative intent. Lobato v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA1145, June 5, 2003). Words and phrases must be given their commonly accepted and understood meanings. Therefore, if we can give effect to the ordinary meaning of the words adopted by the General Assembly, the statute should be construed as written, because it is presumed the General Assembly meant what it clearly said. Lobato v. Industrial Claim Appeals Office, supra.
We note that according to recognized principles of statutory construction, where portions of a sentence in a statute are connected by "and" they are to be considered jointly. See Diamond Industries v. Claimants in re Death of Crouse, 41 Colo. App. 541, 589 P.2d 1383 (1978); cf. U.S. West Communications, Inc., v. Industrial Claim Appeals Office, 978 P.2d 154 (Colo.App. 1999). Thus, when stated in the conjunctive, the statute applies only when all of the enumerated circumstances are present.
The enacting clause for HB 1116 provides that the amendments shall take effect upon passage and shall apply to final admissions issued on or after the date of passage. ( Emphasis added). It follows that the amendments apply if the proceeding is after March 10, 2001 and there has been a final admission filed. Thus, the statute necessarily applies only to final admissions filed after March 10, 2001.
Conversely, the ALJ's construction would eviscerate the second part of the enactment clause. This is true because if the amendments were effective for all proceedings after March 10, 2001, it would be immaterial whether a final admission was filed after March 10. Had the General Assembly intended the amendments to apply in cases where a final admission is filed, objected to and DIME requested prior to March 11, 2001, it could have elected to make HB 1116 effective upon passage. However, the legislature did not do so, and we may not read non-existent provisions into the act. Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995).
Furthermore, our construction is consistent with the statute amended by HB 1116. Section 8-43-203(2)(b)(II), relates to the closure of claims by the filing of a final admission. The first sentence of the statute provides that "an admission of liability for final payment shall include a statement. . . ." HB 1116 was enacted to prevent the filing of multiple hearing applications after the respondents have filed a final admission of liability by holding the process in abeyance where a DIME has been requested to dispute a treating physician's finding of maximum medical improvement or medical impairment. See Interpretive Bulletins, Director of the Division of Workers' Compensation, June 13, 2001. Logic dictates that because the duty to file an application for hearing under § 8-43-203(2)(b)(II), is triggered by the filing of the initial final admission of liability, the term "final admission" in the enactment clause of HB 11116 refers to the initial final admission where there is only one final admission of record.
In this case, the only final admission of liability was filed on August 18, 2000. Consequently, this claim is not subject to the provisions of HB 1116. Instead, the claim is governed by former § 8-42-203(2)(II). Accordingly, the ALJ erred insofar as he struck the claimant's application for hearing based upon the requirements of HB 1116. Consequently, we set aside the February 10 order and remand the matter to the ALJ for the entry of a new order under the predecessor statute.
IT IS THEREFORE ORDERED that the ALJ's orders dated February 3, 2003 and February 10, 2003 are set aside and the matter is remanded to the ALJ for further proceedings and the entry of new orders consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Copies of this decision were mailed October 29, 2003 to the following parties:
Maria Santos Vega, 2501 E. 18th St., Greeley, CO 80631
Startek USA, Inc., 237 22nd St., Greeley, CO 80631-7212
Chad Saunders, Liberty Mutual Insurance Company, P.O. Box 3539, Englewood, CO 80155-3539
Miguel Martinez, Esq., 1102 5th St., #A, Greeley, CO 80631 (For Claimant)
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
BY: A. Hurtado