4-283-039 (1998). DEWAYNE KELLY.

• Case Date: November 12, 1998
• Court: Colorado

Colorado Workers Compensation 1998. 4-283-039 (1998). DEWAYNE KELLY INDUSTRIAL CLAIM APPEALS OFFICEIN THE MATTER OF THE CLAIM OF DEWAYNE KELLY, Claimant, v. FOOD SERVICE CORPORATION, Employer, and BUSINESS INSURANCE COMPANY, Insurer, Respondents.W. C. No. 4-283-039FINAL ORDER The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied the claimant's Petition to Reopen. We affirm. In 1995, the claimant suffered a compensable injury. On July 13, 1996, the respondents filed a Final Admission of Liability which admitted liability for temporary total disability benefits between November 17, 1995 and December 28, 1995, and temporary partial disability benefits from January 14, 1996 to May 24, 1996. The Final Admission relied on the July 8, 1996 report of Dr. Gellrick, which stated that the claimant is assumed to be at maximum medical improvement (MMI) as of May 24, 1996, because the claimant had been non-compliant with scheduled follow-up appointments. The claimant filed a petition to reopen in November 1997, alleging that his claim had been closed because of an error or mistake. However, the ALJ found that the claimant did not timely object to the Final Admission, and the ALJ discredited the claimant's testimony that he did not receive the Final Admission. The ALJ also found, implicitly, that the MMI determination reflected Dr. Gellrick's medical assessment of the claimant's condition after his May 24, 1996 examination. Finally, the ALJ determined that there was no evidence that Dr. Gellrick mistakenly determined the claimant to be at MMI, and that the correctness of the MMI determination was not a proper issue for the hearing since there had been no independent medical examination (IME). Consequently, the ALJ denied the petition to reopen. On review, the claimant renews his contention that the Final Admission was erroneously based on § 8-42-105(2)(c). That statute allows an insurer to suspend temporary disability benefits where the claimant has failed to attend a medical appointment with the attending physician. The claimant contends that the respondents mistakenly believed that he did not attend medical appointments on April 18, 1996 and May 24, 1996 with Dr. Gellrick, and therefore, the respondents erroneously terminated his temporary disability benefits commencing May 24, 1996. Furthermore, the...