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Stefanski v. Industrial Claim Appeals Office of the State of Colorado9/8/2005
ORDER SET ASIDE AND CASE REMANDED WITH DIRECTIONS
Vogt and Criswell, JJ., concur
Petitioner, Richard Stefanski (claimant), seeks review of a final order of the Industrial Claim Appeals Office (Panel) determining that the final admission of liability (FAL) filed by Sanco Industries and Liberty Mutual Insurance Company (collectively employer) automatically closed his claim. We set aside the order and remand.
Claimant suffered a compensable back injury in May 1998 and later injured his right foot during exercise therapy for the back injury. Claimant also complained of left-hand symptoms.
Employer filed the FAL in March 1999, terminating temporary disability and medical benefits after the authorized treating physician (ATP) found that claimant was at maximum medical improvement (MMI). Employer voluntarily reinstated benefits after a division-sponsored independent medical examination (DIME) physician opined that claimant was not at MMI for the foot injury.
On May 18, 2001, the ATP placed claimant at MMI for the foot injury, and employer filed an amended FAL. Claimant filed a motion to strike the admission, asserting that the amended FAL was invalid because employer failed to obtain a follow-up DIME, as required by Rules of Procedure XIV(L)(7), 7 Code Colo. Regs. 1101-3 at 60.
Agreeing with claimant, the ALJ determined that under Rule XIV(L)(7), employer could not simply file another FAL, relying on the opinion of the treating physician, when claimant had successfully contested a previous determination of MMI through the DIME process. The ALJ concluded that Rule XIV(L)(7) required employer to return claimant to the DIME physician for a follow-up examination prior to filing the amended FAL. The ALJ therefore granted claimant's motion to strike the FAL, but determined that claimant failed to prove a causal connection between the back injury and his left-hand symptoms.
On review, the Panel determined that the ALJ erroneously found the amended FAL invalid. The Panel concluded that the claim was automatically closed when claimant failed to challenge the ATP's second opinion that he reached MMI by timely contesting the amended FAL and requesting a follow-up DIME within the time limits established by § 8-42-107.2(2)(b), C.R.S. 2004. The Panel therefore held that the ALJ erred in striking the amended FAL and awarding additional benefits absent an order reopening the claim.
I.
Claimant first contends that the Panel erred in determining that employer could either file an amended FAL or request a DIME after the ATP opined for the second time that he reached MMI. We agree.
Section 8-43-203(2)(b)(II), C.R.S. 2004, requires a claimant who contests a FAL to file an objection within thirty days and within that time to request "a hearing on any disputed issues that are ripe for hearing, including the selection of an independent medical examiner pursuant to section 8-42-107.2 if an independent medical examination has not already been conducted."
Further, § 8-42-107.2(2)(b) requires the party disputing a finding or determination of the ATP to request the selection of a DIME and to mail a notice and proposal for such selection within thirty days of the mailing of the FAL.
The Panel concluded that § 8-42-107(8), C.R.S. 2004, is intended to place the parties in the same legal position that existed before the ATP's MMI determination and the initiation of the DIME process. Specifically, when, as here, MMI is redetermined by an ATP, the employer may either request a follow-up DIME to contest the ATP's determination of MMI or file a FAL based on the ATP's second MMI determination a
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