264 P.3d 632
Colo. Ct. App.2011Background
- Claimant Lassiter sustained work-related injuries in 2007; treating physician found MMI in 2008 and DIME agreed with impairment rating and recommended further treatment.
- Employer sought hearing on PPD benefits, a safety-rule violation penalty, and overcoming the DIME impairment rating; claimant listed related issues but later narrowed.
- In 2009, ALJ awarded PPD benefits per the DIME rating, denied a safety-rule violation reduction, and granted an overpayment credit; the order reserved other issues for future determination.
- Claimant later sought Grover medical benefits for future treatment; employer argued claimant waived these by not raising the issue at the PPD hearing and because the initial order did not expressly decide Grover benefits.
- A Panel remanded to assess Grover medical benefits; on remand, a second ALJ awarded Grover medical benefits based on evidence that future treatment is reasonably necessary.
- Employer appealed; the Panel affirmed the award for Grover medical benefits, and the Colorado Court of Appeals affirmed, rejecting theories of waiver and upholding the reservation clause validity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver under Hanna | Lassiter did not waive Grover benefits; reservation preserved right. | Lassiter waived by not raising at hearing; reservation invalid. | Reservation preserved Lassiter's Grover rights; no waiver. |
| Effectiveness of reservation clause | Reservation clause sufficiently reserved future issues. | Clause was mere surplus and failed to specify Grover benefits. | Reservation clause valid and effective. |
| Whether Grover benefits were raised at initial hearing | Issue was preserved for future determination despite not being raised at hearing. | Issue not raised at hearing cannot be reserved; waived. | Not raised does not defeat reservation; preserved for future determination. |
| Scope of Grover medical benefits | DIME and treating physician supported future necessary treatment. | No substantial evidence at final award to support future medical necessity. | Evidence supports future medical benefits; entitlement affirmed. |
Key Cases Cited
- Hanna v. Print Expediters Inc., 77 P.3d 863 (Colo. App. 2003) (express reservation of issues prevents claim closure)
- Brown & Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 784 (Colo. App. 1992) (reservation of jurisdiction over permanent disability preserves open issues)
- Milco Construction v. Cowan, 860 P.2d 539 (Colo. App. 1993) (substantial evidence required to support future medical need at final award)
- El Paso Cnty. Dept. of Soc. Servs. v. Donn, 865 P.2d 877 (Colo. App. 1993) (reservation of issues when adjudicating benefits)
- Paint Connection Plus v. Indus. Claim Appeals Office, 240 P.3d 429 (Colo. App. 2010) (interpretation of waivers and reservations in workers' comp)