Lead Opinion
In this workers’ compensation proceeding, Leprino Foods Company and its insurer, Ace, U.S.A. (collectively employer), seek review of a final order of the Industrial Claim Appeals Office (Panel) determining that Brenda Rivera (claimant) (1) had not waived the right to a division-sponsored independent medical examination (DIME) on the issue of maximum medical improvement (MMI) by seeking and accepting a lump sum payment of permanent partial disability (PPD) benefits; (2) was not yet at MMI; and (3) was entitled to additional temporary total disability (TTD) benefits for her industrial injury and related subsequent shoulder symptoms without application of a statutory cap on benefits. We affirm the order in part and set it aside in part.
Claimant sustained an injury to her right elbow in February 2001, and employer filed a
In October 2001, the ATP referred claimant to another physician for an impairment rating. The rating physician issued a March 2002 report placing claimant at MMI with a twenty-seven percent impairment of the right upper extremity. Claimant was placed under permanent restrictions that precluded her from returning to her regular employment.
On April 16, 2002, an insurance adjuster prepared a final admission of liability (FAL), which admitted liability for PPD benefits based on the rating physician’s extremity rating. Employer’s safety supervisor testified that at a meeting on April 18, 2002, claimant asked him whether these PPD benefits could be paid in a lump sum, but because he did not know the answer, he called the adjuster, who spoke to claimant. Following that conversation, claimant sent a handwritten note dated April 18 to the adjuster stating, “I would like to receive my disability rating in one lump sum of $8,431.76.”
On April 23, 2003, claimant again met with the employer’s safety supervisor. Following this meeting, the supervisor terminated claimant from employment because she could not perform her regular duties and employer had no jobs available that were within her restrictions.
Thereafter, claimant retained counsel who, on April 29, filed an objection to the FAL and a notice and proposal to select a physician to conduct a DIME. Also on April 29, employer paid the lump sum claimant requested in her handwritten note, which represented the discounted and remaining balance of the admitted PPD award. These two actions — accepting PPD benefits while at the same time contesting MMI — underlie much of the controversy in this case.
Employer did not object to the request for a DIME physician. In an August 2002 report, the DIME physician opined that claimant was not yet at MMI. He made several diagnoses, including right radial nerve entrapment and “chronic right shoulder pain and decreased range of motion with evidence of possible frozen right shoulder ... due to the chronic pain and reduced usage of her right arm.” The DIME physician recommended further diagnostic studies and various drug therapies.
Employer took no action on the DIME physician’s report. It did not contest the DIME physician’s finding on MMI or file an amended FAL for TTD benefits. Claimant then applied for a hearing, seeking TTD benefits from the date she was terminated from employment.
The administrative law judge (ALJ) found that claimant had not reached MMI and was therefore entitled to the requested TTD benefits. The ALJ further determined that employer failed either to admit or to contest liability within thirty days of the DIME physician’s report. Consequently, the ALJ found that, pursuant to §§ 8-42-107.2(4) and 8^43-203(2)(b)(II), C.R.S.2005, employer was precluded from challenging the DIME physician’s finding that claimant was not at MMI, including the DIME physician’s findings regarding the cause of claimant’s upper extremity symptoms. Alternatively, the ALJ found that employer had failed to overcome, by clear and convincing evidence, the DIME physician’s determination that the claimant was not at MMI.
The ALJ also rejected employer’s contention that, by accepting the lump sum payment on April 29, claimant had waived her right to request the DIME. In support, the ALJ found that claimant’s April 18 note contained no statement indicating that, by accepting the lump sum payment, she intended to surrender her rights to challenge the FAL and request a DIME. Further, the ALJ found there was no written agreement establishing a waiver, and that claimant in fact challenged the FAL by filing an objection to it on April 29, together with a notice and proposal for the DIME.
The Panel agreed that, by accepting the lump sum, claimant had not waived the right to request a DIME, and that employer, through its inaction, had lost the right to
I.
Employer first contends that the Panel erred in concluding that claimant’s request for the lump sum payment of PPD benefits did not constitute a waiver of her right to contest MMI through the DIME process. Asserting that claimant is proceeding inconsistently in pursuing concurrent claims for PPD and TTD, employer argues that acceptance of lump sum PPD benefits constitutes an admission by claimant that she has reached MMI and estops her from seeking further TTD benefits. Employer further asserts that the General Assembly, in changing the statutes governing lump sum payments, did not intend to alter the effect of a lump sum as a settlement. Under the circumstances present here, we disagree.
Lump sum payments of PPD benefits less than $10,000 are authorized by § 8-42-107(8)(d), C.R.S.2005, which provides, in pertinent part, that
[u]p to ten thousand dollars of the total amount of any such award [for medical impairment benefits] shall be automatically paid in a lump sum less the discount as calculated in section 8 — 43—406[, C.R.S. 2005,] upon the injured employee’s written request to the employer or, if insured, to the employer’s insurance carrier.
See Cooper v. Indus. Claim Appeals Office,
Employer argues that the holding in Brunetti v. Industrial Commission,
A.
First, in Brunetti, the claimant failed timely to object to the FAL, the case was therefore closed, and the claimant tried to obtain additional benefits without a reopening. The claimant’s acceptance of the lump sum payment was considered a “settlement” partly because the claimant was notified the claim would be considered closed if he filed no objection, the claimant did not object within the allotted time, and the claimant accepted payment under the admission.
Here, in contrast, claimant exercised her right to challenge the FAL on April 29 by objecting to it and requesting a DIME. Indeed, the FAL itself provided notice that the claim would be final only if she failed to object and did not request a DIME. It did not advise claimant that the claim would be final if she accepted the lump sum. See Lobato v. Indus. Claim Appeals Office,
Accordingly, neither claimant’s action in objecting to the FAL and filing a notice requesting a DIME, nor the content of her April 18 letter, reflects claimant’s knowing and intelligent decision to surrender her rights to dispute the FAL and request a DIME. Furthermore, the adjuster’s testimony suggests that claimant was not advised that employer would consider the acceptance of the lump sum as a surrender of all rights
B.
Second, Brunetti v. Industrial Commission, supra, is inapplicable here because the law has changed. When Brunetti was decided, the DIME procedure did not exist, see Colo. Sess. Laws 1991, eh. 219, § 8-42-107(8) at 1309-11, and all lump sum requests were governed by what is now codified as § 8-43-406(1), C.R.S.2005. See Colo. Sess. Laws 1986, ch. 64, § 8-62-103(1) at 477. That section provides the director with discretion over lump sum awards made after notice to the parties.
With the advent of the DIME procedure, § 8-42-107(8)(d) now provides that an initial amount of up to $10,000 of an award of PPD benefits is to be automatically paid by the employer or insurer. See Dep’t of Labor & Employment Rule XI(C)(3)(b), 7 Code Colo. Regs. 1101-3. Additional lump sums exceeding the initial amount must be considered by the director pursuant to § 8-43-406(1).
Notably, the director has provided that these additional sums may be paid only “if the claimant has indicated that the admission will be accepted as filed, relative to permanency.” Dep’t of Labor & Employment Rule XI(C)(3)(c), 7 Code Colo. Regs. 1101-3. The form used by the director to disburse these additional lump sum benefits clearly notifies a claimant that, by signing the application for a lump sum, the claimant accepts the FAL. An older version of the form is included in the record as an attachment to claimant’s brief in opposition to the petition to review the ALJ’s order, and we grant claimant’s request to take judicial notice of the copy in the record, inasmuch as it was not considered by the ALJ. See One Hour Cleaners v. Indus. Claim Appeals Office,
Thus, the director has provided that only requests for additional lump sum payments exceeding the initial $10,000 are subject to the FAL acceptance procedure. See Popke v. Indus. Claim Appeals Office,
To the extent of any ambiguity in the rule, we resolve it by concluding that the inclusion of the FAL acceptance provision for an additional lump sum necessarily implies the exclusion of an acceptance provision for the initial $10,000 lump sum request. See City of Arvada v. Colo. Intergovernmental Risk Sharing Agency,
Accordingly, we reject employer’s assertion that the initial lump sum distribution up to $10,000 is treated identically to any additional lump sums. Furthermore, even if, as employer suggests, claimant received a lump sum plus periodic PPD benefits totaling more than $10,000, the result is the same, because it is the amount of the lump sum payment,
We recognize that the current practice of allowing claimants to request the initial lump sum without accepting the FAL is problematic, as this ease illustrates. The director could amend Rule XI(C)(3)(b) to extend the FAL acceptance provision to the initial lump sum request. However, we may not impose such a requirement. See Kraus v. Artcraft Sign Co.,
II.
Employer contends next that the Panel erred in failing to apply the $60,000 statutory cap on benefits. We are not persuaded.
A.
Section 8-42-107.5, C.R.S.2005, which provides for the benefits cap, states in pertinent part that “[n]o claimant whose impairment rating is twenty-five percent or less may receive more than sixty thousand dollars from combined temporary disability payments and permanent partial disability payments.” See Grogan v. Lutheran Med. Ctr., Inc.,
The Panel concluded that the DIME physician’s finding that claimant had not reached MMI is binding on the parties and the ALJ. Employer has not appealed this aspect of the DIME determination. Thus, because MMI is a predicate to a determination of claimant’s medical impairment rating, see MGM Supply Co. v. Indus. Claim Appeals Office,
We are not persuaded otherwise by employer’s argument that application of the cap after a claimant reaches MMI results in overpayments to claimants that cannot be recouped by employers. We note that the decision in Donald B. Murphy Contractors, Inc. v. Industrial Claim Appeals Office, supra, was reached by applying the plain language of the statute, which clearly provides that application of the benefits cap depends on the impairment rating. Accordingly, it is equally clear that the General Assembly intended to require employers to continue paying benefits without application of the cap until such time as a claimant reaches MMI.
Again, while we appreciate that this poses a legitimate and frustrating problem for employers, we have no authority to remedy that problem. See Kraus v. Artcraft Sign Co., supra. The intent of the General Assembly in drafting the statute is clear, and it is for that body to consider any changes.
We note that employer filed a request to take judicial notice of the director’s practice ■of applying the benefits cap only after permanent impairment is determined, and that to date, claimant has been paid amounts exceeding the $60,000 cap that will apply if she is ultimately assigned a permanent impairment rating of twenty-five percent or less.
We decline to reconsider that denial because whether the director follows the law is not an appropriate subject for judicial notice. See One Hour Cleaners v. Indus. Claim Appeals Office, supra. Furthermore, the amount of benefits a claimant receives prior to reaching MMI is not dispositive, because until a claimant actually reaches MMI, the impairment rating is unknown and any speculation as to the applicable cap is unwarranted.
In light of this conclusion, the Panel’s motion to strike employer’s request to take judicial notice of these matters is denied.
B.
Although we agree that the Panel correctly determined that application of the cap was premature, we disagree with the Panel’s conclusion that employer waived the argument by failing to plead it.
The Panel concluded that the cap was an affirmative defense that must be pleaded and proved. In characterizing the cap as an affirmative defense, the Panel cited Safeway, Inc. v. Industrial Claim Appeals Office,
Offsets provided by the Workers’ Compensation Act operate to prevent a windfall of duplicative disability benefits. See Culver v. Ace Elec.,
In contrast, a benefits cap is simply a component in the computation of benefits, much as limitations on the average weekly wage (AWW) affect the computation of benefits. See Guido v. Indus. Claim Appeals Office,
Application of the statutes necessary to correctly compute benefits is automatic, and because the benefits cap here is not0 an affirmative defense, it need not be affirmatively pleaded unless a specific issue arises as to its application. Cf. Kersting v. Indus. Comm’n,
Accordingly, because this issue may arise in the future, we conclude that employer is not barred from raising the cap once claimant reaches MMI.
C.
We note that employer also asserts that it is entitled to an offset for unemployment compensation benefits claimant received, as well as credit for PPD benefits already paid. Claimant acknowledges that employer may offset the premature PPD lump sum against any TTD benefits. Because the ALJ already ordered that claimant’s TTD benefits are “subject to offset as allowed under the
III.
Employer’s final contention is that the Panel erred in concluding that claimant’s shoulder injury was related to the February 2001 elbow injury and therefore was compen-sable. Again, we disagree with employer’s various arguments relating to this issue.
A.
Employer argues that the DIME physician never actually found a causal link between claimant’s shoulder injury and the industrial elbow injury, and the ALJ erred in interpreting the DIME physician’s report in a contrary manner. Alternatively, employer argues that even if the DIME physician found causation, because the shoulder injury was not symptomatic until five months after claimant was terminated from her employment in 2002, the ALJ erred in relying on the DIME physician’s finding that it was work related, and instead should have relied on the ATP’s contrary finding.
However, the Panel found, and we agree, that the ALJ correctly ruled that employer is bound by the DIME physician’s report because it failed to contest the findings.
Section 8-42-107.2(4) provides that -within thirty days after the DIME physician’s report is mailed, the insurer “shall either file its admission of liability pursuant to section 8-43-203[, C.R.S.2005,] or request a hearing before the division contesting one or more of the IME’s findings or determinations contained in such report.” Section 8-43-203(2)(b)(II) reiterates this provision and specifies the notice requirements involved with the DIME process.
Both sections are part of an overall statutory scheme designed to ensure the prompt payment of benefits without the necessity of litigation in cases that do not present a legitimate controversy. See Peregoy v. Indus. Claim Appeals Office, supra. The provisions of this statute arg_ clear and require the insurer either to contest the DIME report within thirty days or to admit in accordance with the report. City Mid., Inc. v. Indus. Claim Appeals Office,
Here, the ALJ found, and employer does not dispute, that it failed to request a hearing to contest the DIME physician’s report finding that claimant was not at MMI. The DIME physician’s determination is therefore binding on the parties and the ALJ because employer did not timely act to contest it. Accordingly, jurisdiction to hear such a contest has now been lost.
B.
Nevertheless, employer seeks to avoid the finality of the DIME physician’s opinion regarding MMI by arguing that the issue was compensability of the shoulder condition, rather than causation, and therefore the DIME process does'not apply to claimant’s shoulder injury. Employer also asserts that because the DIME physician found that claimant was not at MMI, the rating was purely advisory and the related causation determination is immaterial. These arguments are not persuasive.
As required by § 8-42-107(8), C.R.S. 2005, a DIME physician’s opinions concerning MMI and permanent medical impairment are given presumptive effect. Both determinations inherently require the DIME physician to assess, as a matter of diagnosis, whether the various components of the claimant’s medical condition are causally related to the industrial injury. Therefore, a DIME physician’s determinations'concerning causa
In contrast, the threshold question of whether the claimant has sustained a com-pensable injury in the first instance is one of fact that the ALJ must determine, if contested, under the preponderance of the evidence standard. Pacesetter Corp. v. Collett,
Here, unlike the situation in Faulkner, supra, the existence of a compensable injury is not in question. Indeed, employer admitted, in the general admission of liability, that claimant sustained a compensable injury in February 2001. The issue presented to the DIME physician and later to the ALJ was the extent of this injury, and whether claimant needed additional diagnostic and curative procedures to diagnose and relieve the effects of the admitted injury.
As the ALJ recognized, the DIME physician squarely addressed these questions and determined that claimant’s shoulder problem was probably related to the industrial injury and claimant needed additional diagnostic and curative treatment to relieve this condition. Therefore, the issue of the cause, of claimant’s shoulder symptoms was properly before the DIME physician, and his opinions on the causation issue became binding because of employer’s failure to challenge them. Given the DIME physician’s recognition that the rating was premature, we attach no particular significance to the issuance of an “advisory” rating, and conclude that it does not affect the causation determination.
That portion of the Panel’s order determining that employer waived application of the benefits cap is set aside. The remainder of the Panel’s order is affirmed.
Dissenting Opinion
dissenting.
I disagree with the majority’s determination that claimant’s request for and receipt of a lump sum payment of PPD benefits did not preclude her from subsequently disputing the FAL, requesting a DIME, and seeking payment of TTD benefits.
The majority’s opinion is based, in large part, upon one premise (namely, that claimant had to knowingly and intelligently waive her rights to dispute the FAL and request a DIME) and one fact (namely, that, unlike the case involving larger lump sum payments authorized by the director, claimant was not explicitly advised that she was accepting the FAL by applying for the lump sum).
The majority correctly cites Johnson v. Industrial Commission,
The present case does not involve a waiver of constitutional rights. The waiver at issue here — of the right to challenge MMI by contesting the FAL and seeking a DIME — is statutory in nature.
The waiver of a statutory right “must be voluntary but need not be knowing and intelligent.” People v. Duran,
In my view, a request for and acceptance of a lump sum payment of PPD benefits is antithetical to a further request for a DIME to challenge the prior MMI determination that was the basis for obtaining PPD benefits.
Under the Workers’ Compensation Act, MMI marks the point at which PPD benefits become available and TTD benefits become unavailable. See §§ 8-42-105(3)(a), 8-42-107(8)(c), C.R.S.2005; Culver v. Ace Elec.,
Logically and legally, then, there can be no determination or payment of PPD benefits until and unless MMI is reached. See MGM Supply Co. v. Indus. Claim Appeals Office,
The lump sum paid to claimant here is a form of PPD benefit. See Cooper v. Indus. Claim Appeals Office,
Consequently, the effect of the majority’s decision is to allow claimant to keep PPD benefits while seeking TTD benefits. In my view, she cannot do both, regardless of whether she was so advised. Thus, I would hold that, having requested and accepted the PPD benefits, claimant voluntarily waived, or at least is estopped from asserting, her right to obtain TTD benefits through the DIME process. See Brunetti v. Indus. Comm’n,
For these reasons, I respectfully dissent.