IN THE MATTER OF THE CLAIM OF: CHARLOTTE SUOMIE, Claimant,
v.
SPECTRUM RETIREMENT COMMUNITIES, Employer,
and
GRANITE STATE INSURANCE COMPANY, Insurer, Respondents.
W.C. No. 5-050-347-01
Colorado Workers Compensation
Industrial Claim Appeals Office
June 14, 2019
LEE
& BROWN LLC, Attn: BRADLEY HANSEN ESQ, (For Respondents)
FINAL ORDER
The
claimant seeks review of the Corrected Order of
Administrative Law Judge Margot Jones (ALJ) dated May 3,
2018, that denied to the claimant the statutory right to
request a division-sponsored independent medical examination
(DIME). We reverse the ALJ's order.
A
summary of the factual and procedural history of this case
will place the issue before us in proper focus. On July 13,
2017, respondents filed a final admission of liability (FAL)
with a date of maximum medical improvement (MMI) of June 7,
2017. The FAL was a so-called "medical-only" FAL as
there was no admission for any permanent medical impairment
or temporary disability benefits. The claimant timely
objected to the FAL and timely submitted a Notice and
Proposal to Select a DIME. The claimant subsequently filed an
Application for a DIME regarding the impairment rating and
the date of MMI.
On
August 18, 2017, respondents filed a Motion to Strike
Claimant's DIME Process with the prehearing unit at the
division. The motion relied upon the Supreme Court's
holding in Harman-Bergstedt v. Loofbourrow, 320 P.3d
327 (Colo. 2014)(Loofbourrow). PALJ Barbo granted
the respondents' motion in a summary order dated
September 7, 2017. The PALJ added, "Since the DIME
process is not ripe the granting of this motion is without
prejudice."
The
claimant applied for a hearing at the Office of
Administrative Courts (OAC) to appeal the PALJ's order.
Hearing was held before ALJ Jones on February 1, 2018. The
ALJ initially entered Findings of Fact, Conclusions of Law,
and Order on May 1, 2018. The ALJ issued a Corrected Order on
May 3, 2018. The Corrected Order held that the claimant does
not have the statutory right to a DIME.
The ALJ
reasoned that based on the ruling in Loofbourrow,
the filing of the FAL, premised on the finding of MMI with no
disability indemnity payable, does not allow claimant the
opportunity to begin the DIME process by filing a notice and
proposal for a DIME and claimant cannot request a DIME under
Section 8-42-107(8)(b)(II), C.R.S. The ALJ affirmed the order
of the PAL J and the claimant's request for a DIME was
denied.
The
claimant timely filed a Petition to Review the Corrected
Order. The transcript of the hearing was prepared and filed
with OAC on June 20, 2018. Counsel for the claimant moved to
withdraw his representation on July 3, such being approved by
order of the OAC on July 19. On July 23, the OAC served
notice that the transcript had been received and instituted a
briefing schedule. (The notice to the claimant was returned
as undeliverable.) No briefs were received from either party.
On October 17, the OAC served an amended notice that the
transcript had been received and instituted a new briefing
schedule. No briefs were received from either party. On
January 28, 2019, OAC served a 2nd amended notice
that the transcript had been received and instituted another
briefing schedule. No briefs were received from either party.
The ALJ referred the appeal to the Panel on April 30,
2019.[1]
Typically,
when the appellant does not submit a brief in support of the
Petition to Review, the effectiveness of our review is
limited. Ortiz v. Industrial Commission, 734 P.2d
642 (Colo.App. 1986). However, the lack of a brief in support
of the appeal does not bar the panel from ruling on a timely
petition to review. Jiminez v. Industrial Claim Appeals
Office, 107 P. 965, 967 (Colo.App. 2003).
Whether
the ALJ applied the proper legal standard is a question of
law subject to review de novo. See Indus. Claim Appeals
Office v. Softrock Geological Servs., Inc., 2014 CO 30,
¥ 9. We conclude that the ALJ did not apply the proper
legal standard.
Another
panel of the ICAO, has recently held that the expansive
concept announced by the Loofbourrow court regarding
"maximum medical improvement as a statutory term of
art" was dicta and did not apply to circumstances
involving a FAL when no indemnity is payable. It was further
held that the Loofbourrow dicta was not persuasive
and had deleterious effects in its application, as it has
been used to deny claimants the right to a DIME without
procedural due process. See Martinez v. Energy Saving
Crew LLC, W.C. No. 5-055-251-002 (May 31, 2019).
In the
aftermath of the Loofbourrow decision, the ICAO has
addressed its ramifications in multiple situations. It is
fair to state that the ICAO decisions have undergone a
metamorphosis as the effects of the Loofbourrow
dicta have become apparent as new claims, with different
facts have arisen. We discuss the evolvement below.
Harman-Bergstedt,
Inc. v. Loofbourrow
In
Loofbourrow, the Court was presented a specific
factual situation where the claimant sustained an injury, but
did not miss at least three working shifts. The respondents
voluntarily paid the medical expenses of the claimant until
she reached MMI (as determined by the employer...
