Summary
In Aguilar, not only were there no work-sheets, but the range of motion findings used by the authorized treating physician to calculate the claimant's impairment rating were included in the physical therapist's report, which was attached to the FAL.
Summary of this case from Paint Connection v. Industrial ClaimOpinion
W.C. No. 4-741-897.
August 3, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated April 24, 2009, that found the claim had closed by operation of law and denied the claimant's request for penalties. We affirm.
The ALJ made the following pertinent findings of fact. The claimant was injured in an admitted accident. The authorized treating physician (ATP) referred the claimant to a physical therapist for range of motion testing. The physical therapist issued a narrative report that included range of motion findings, but the therapist did not complete a separate rating worksheet. The ATP determined that the claimant had reached maximum medical improvement and assigned the claimant a 19 percent whole person impairment rating. The ATP issued an impairment evaluation report, but did not complete any ratings worksheets. The respondents filed a Final Admission of Liability (FAL) consistent with the ATP's impairment determination. The respondents attached to the FAL both the ATP rating report and the physical therapist's report. The claimant did not timely object to the FAL, apply for a hearing or submit a Notice and Proposal for a Division-sponsored independent medical examination (DIME).
The claimant later filed a Motion to Strike the FAL because the respondents failed to attach any ratings worksheets to the FAL. A Pre-hearing ALJ (PALJ) entered an order denying the claimant's motion to strike the FAL and the claimant challenged the PALJ's order. The ALJ found that the respondents were only required to attach the medical information that was available and had been used in calculating the claimant's impairment rating. Consequently the ALJ found that the claimant had received all of the information about his impairment rating that was necessary for him to make an informed decision about whether to challenge the FAL. Therefore the ALJ determined that the respondents did not violate any rule or statute and that claimant's claim closed by operation of law for failure to timely object to the FAL.
We first note that the record contains no transcript of the hearing before the ALJ. However, it appears that no testimony was taken and although the record is not clear it seems the parties did not even appear at the scheduled hearing. We also note that the claimant has stated that the pertinent facts are not in dispute.
I.
On appeal the claimant, citing 8-43-203(2)(b)(II) C.R.S. 2009 and McCotter v. U. S. West Communications, Inc., W.C. No. 4-430-792 (March 25, 2002), contends that the FAL filed by the respondents was not valid because worksheets were not attached. Therefore, the claimant argues that the ALJ erred in ruling that the FAL closed the case. We are not persuaded that the ALJ erred.
Section 8-43-203(2)(b)(II) provides that when the final admission is predicated upon medical reports, such reports shall accompany the final admission. W.C. Rule of Procedure 5.5(A), 7 Code Colo. Reg. 1101-3 (2009) provides that when the final admission is predicated upon medical reports, such reports shall accompany the admission along with the worksheets or other evaluation information.
We acknowledge that the panel has previously held that failure to attach available AMA Guides worksheets vitiated the FAL. Siegmund v. Fore Property Company, W.C. No. 4-649-193 (January 30, 2007); McCotter v. U. S. West Communications, Inc., supra. The panel has determined that an FAL that does not include the rating physician's entire report as required by § 8-43-203(2)(b)(II) and Rule 5-5(A), including any available narrative discussion and ratings worksheets, is legally insufficient. The panel's rationale for this holding is that the statute requires medical reports to be filed and "is designed to promote intelligent decision making by claimants" by informing them of the factual predicates for the admission and providing them with a basis to decide whether grounds exist to contest the FAL. McCotter v. U.S. West Communications, Inc., supra.
However, in our view the FAL here is distinguishable from those defective final admissions held in the past to be invalid and therefore ineffective in closing any issues. For example in Reed v. Demetre Painting, W.C. No. 3-069-138 (January 15, 1993), the panel held the respondents' failure to attach the medical report on which the FAL for permanent disability benefits was predicated did not close the claim even though the claimant had failed to object to a final admission. Similarly, In McCotter v. U.S. West Communications, supra, the physician had issued a ratings "worksheet" which was not included with the FAL and therefore the FAL was defective. However, in those cases, unlike here, medical reports did exist but were simply not attached to the FAL.
In our opinion the FAL in the present case did comply with the provisions of § 8-43-203(2)(b)(II) and Rule 5.5(A). In our view, neither the statute nor the rule obliges the insurer to demand that the ATP prepare a worksheet so that it might be attached to the FAL. In interpreting these provisions, we apply the ordinary rules of statutory construction. The purpose of statutory construction is to effect the legislative intent. Because the best indicator of legislative intent is the language of the statute, words and phrases in a statute should be given their plain and ordinary meanings. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). The principles governing the interpretation of administrative regulations are the same as those concerning statutes. Gerrity Oil and Gas Corp. v. Magness, 923 P.2d 261 (Colo. App. 1995), aff'd. in part, rev'd. in part on other grounds, 946 P.2d 913 (Colo. 1997). However, statutory language should not be construed in a manner which produces an absurd result. Humane Society of the Pikes Peak Region v. Industrial Claim Appeals Office, 26 P.3d 546 (Colo. App. 2001).
In our view, the ordinary and plain meaning of § 8-43-203(2)(b) and Rule 5-5 (A) does not reveal a legislative or administrative intent to invalidate a FAL because a nonexistent worksheet is not attached to the admission. As noted above one obvious purpose of the requirements of § 8-43-203(2)(b) and Rule 5-5 (A) is to put the claimant on notice of the exact basis of admitted or denied liability so the claimant can make an informed decision whether to challenge the final admission. In the present case, it was stipulated that that all documents in existence with regard to the determination of permanent impairment by the ATP were attached to the FAL. Therefore, the claimant was given notice of the basis for the FAL and thus had the information needed to make an informed decision. The claimant was given the ATP's complete report and the physical therapist's report, which informed the claimant of the factual predicates for the admission and provided the claimant with a basis to decide whether grounds existed to contest the FAL. See McCotter v. U.S. West Communications, supra. Further, the claimant was given the means of disputing the respondent's position since the FAL had attached blank Objection to FAL forms and Notice and Proposal for a DIME forms. Exhibit 1. Therefore, the ALJ correctly found that the claimant's failure to object to the FAL closed the claim as to the issues admitted in the final admission.
II.
The claimant next contends that the Office of Administrative Courts (OAC) may not transfer a case on a Colorado Springs Docket to Denver for a decision. The claimant has not cited any authority for this proposition and we are not persuaded that there is any prohibition preventing OAC from transferring cases.
Here, a prehearing conference was held before ALJ Krumreich on March 23, 2009 before the scheduled March 25, 2009 hearing. See Prehearing Order, March 23, 2009. At the prehearing, the parties entered into a stipulation that all documents in existence with regard to the determination of permanent impairment by the authorized treating physician were attached to the Final Admission of Liability filed by the respondents. It was ordered that at the hearing no testimony would be taken, but the parties would submit the matter for determination by the filing of written position statements. The Prehearing Order provided that the parties' position statements were due after the hearing. ALJ Cannici then entered the order here under review after review of the position statements.
The claimant's attorney contends that he had found out that ALJ Stuber had the docket on March 25, 2009. Counsel for the claimant contends that he thought that there was no possibility that ALJ Cannici would end up as the ALJ on the case. The claimant's attorney states that he addressed his arguments to ALJ Stuber. The claimant contends that he was not properly advised as to whom the ALJ was and so was denied due process.
We note that it is the policy of the Director of the Office of Administrative Courts that the assignment of judges to particular hearings or dockets will not be made public prior to the commencement of the hearing or docket. Office of Administrative Courts OAC Policies,http://www.colorado.gov/dpa/oac/DirectorsPolicies.htm (visited July 31, 2009). The announced purpose of this policy is to allow the Office of Administrative Courts flexibility in making assignments, as dictated by workloads and availability of judges, and to prevent litigants from using their knowledge of judge assignments for a perceived tactical advantage. In our opinion, the actions of OAC here were consisted with this reasonable policy.
The claimant contends that when the case is argued to ALJ Stuber, it cannot be transferred to another ALJ. We are not persuaded. The claimant has not directed us to any authority, nor are we aware of any authority for the proposition that a litigant has any due process right to have a matter heard before at particular ALJ. See Bodensieck v. Industrial Claim Appeals Office 183 P.3d 684 (Colo. App. 2008) (due process not violated because the second ALJ had not been present at the hearings but nevertheless determined that her testimony was incredible); see also, Colorado Comp. Ins. Auth. v. Nofio, 886 P.2d 714 (Colo. 1994) (due process property interest is limited and does not include interest in receiving medical care from particular provider or in receiving particular type of treatment).
The claimant's attorney argues that the case of Selvage v. Terrace Gardens W.C. No. 4-486-812 (October 9, 2007), aff'd, Selvage v. Industrial Claim Appeals Office, No. 07CA2132. (Colo. App. Sept. 25, 2008) (not selected for publication) demonstrates that ALJ Cannici does not pay attention to what occurs in his courtroom. Therefore, the claimant states that had he known that ALJ Cannici was on the case that he would have requested him to recuse himself. However, as we read Selvage, the Panel and the Colorado Court of Appeals rejected the claimant's contention that the incident in which ALJ Cannici did not know whether the claimant had opened the courtroom door herself evidenced bias against her.
We understand that the claimant may not have been aware of the identity of the ALJ deciding his case until the order was issued. However, even if we assume that the claimant's first opportunity move for the ALJ to recuse himself was after entry of the order, the claimant even at this point has not filed a motion to recuse the ALJ with supporting documentation. The claimant states in his brief that on remand he will call witnesses to testify as to ALJ Cannici's "bias, prejudices and the like." However, we presume an ALJ to be competent, impartial, and unbiased "until the contrary is shown." Wecker v. TBL Excavating, Inc. 908 P.2d 1186, 1189 (Colo. App. 1995). To establish that a court was biased, a party must show that the court had "a substantial bent of mind against him or her. Speculative statements and conclusions are insufficient to satisfy the burden of proof." People v. James, 40 P.3d 36, 44 (Colo. App. 2001). Here, all the claimant has done in his brief is to make speculative statements and conclusions. In our opinion, the claimant has not carried his burden to overcome that presumption of impartially. Therefore, no remand is necessary.
IT IS THEREFORE ORDERED that the ALJ's order dated April 24, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
ANDRES AGUILAR, 4025 LONDON LANE, COLORADO SPRINGS, CO, (Claimant).
COLORADO FLATWORK, INC., Attn: MS KELLY KISIELNICKI, 2330 WAYNOKA ROAD, COLORADO SPRINGS, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., 7501 E LOWRY BLVD., DENVER, CO, (Insurer).
WILLIAM A ALEXANDER, PC, Attn: WILLIAM A ALEXANDER, JR., ESQ., 3055 AUSTIN BLUFFS PARKWAY, SUITE B, COLORADO SPRINGS, CO, (For Claimant).
PINNACOL ASSURANCE, Attn: MS LISA RAE JUNGLING, 7501 E LOWRY BLVD, DENVER, CO, (Other Party).