Olivas-Soto v. Indust. Claim Appeals Office, 05CA2509.

• Citation: 143 P.3d 1178
• Decision Date: 24 August 2006
• Docket Number: No. 05CA2509.,05CA2509.
• Parties: Ignacio OLIVAS-SOTO, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado, Genesis Consolidated Services, and Hartford Casualty Insurance, Respondents.
• Court: Court of Appeals of Colorado

143 P.3d 1178

Ignacio OLIVAS-SOTO, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado, Genesis Consolidated Services, and Hartford Casualty Insurance, Respondents.

No. 05CA2509.

Colorado Court of Appeals, Div. III.

August 24, 2006.

Law Offices of Miguel Martinez, P.C., Miguel Martinez, John D. Stehlik, Denver, Colorado, for Petitioner.

No Appearance for Respondent Industrial Claim Appeals Office.

Hall & Evans, L.L.C., Douglas J. Kotarek, Denver, Colorado, for Respondents Genesis Consolidated Services and Hartford Casualty Insurance.

Opinion by Justice ROVIRA.^*

In this workers' compensation proceeding, Ignacio Olivas-Soto (claimant) seeks review of the final order of the Industrial Claim Appeals Office (Panel) upholding the determination that the issue of permanent total disability (PTD) benefits was closed by the final admission of liability (FAL) filed by Genesis Consolidated Services and its insurer, Hartford Casualty Insurance (collectively employer). We affirm.

Claimant sustained an industrial injury in 2001 and was placed at maximum medical improvement (MMI) by his treating physician in 2002. Claimant underwent a divisionsponsored independent medical examination (DIME), which agreed with the prior determination of MMI and rated claimant's impairment at nineteen percent of the whole person.

Employer filed a FAL accepting the date of MMI and admitting permanent partial disability (PPD) benefits.

In accordance with the requirements of § 8-43-203(2)(b)(II), C.R.S.2005, claimant filed a written objection to the FAL and an application for hearing and notice to set. He endorsed several issues, including the MMI determination, but he did not endorse the issue of PTD benefits.

For various reasons that are not relevant here, claimant filed two additional applications for hearing endorsing the same issues. In his fourth application he endorsed the previously listed issues, but also included the issues of PTD and post-MMI medical benefits. Employer filed a motion to strike the fourth application, asserting that those issues were waived because they were not endorsed on the initial application for hearing.

The administrative law judge (ALJ) held that because the issues of PTD and post-MMI medical benefits were not endorsed within thirty days of the FAL as required by § 8-43-203(2)(b)(II), those issues were closed and could not be litigated. However, he also held that if, at hearing, claimant were to overcome the DIME report and prove he was not at MMI, the issues of PTD and post-MMI medical benefits would remain open and could be litigated once claimant reached MMI.

Following an evidentiary hearing, a second ALJ found that claimant had failed to overcome the DIME as to MMI.

On review, both orders were upheld by the Panel.

Claimant appeals only from that part of the interlocutory order that struck the issue of PTD benefits. He argues that, because he timely challenged the DIME opinion on MMI, the issue of PTD benefits did not become ripe until that dispute was resolved. Therefore, he asserts that he did not waive the issue of PTD benefits by failing to endorse it on the first application for hearing. We are not persuaded.

Section 8-43-203(2)(b)(II) provides that a case will be "automatically closed as to the issues admitted in the [FAL] if the claimant does not, within thirty days after the date of the [FAL], contest the [FAL] in writing and request a hearing on any disputed issues that are ripe for hearing."

This section is part of a statutory scheme designed to promote, encourage, and ensure prompt payment of compensation to an injured worker without the necessity of a formal administrative determination in cases not presenting a legitimate controversy. Dyrkopp v. Indus. Claim Appeals Office, 30 P.3d 821 (Colo.App.2001). Applying time limits to a claimant's right to contest closure is rational and advances that purpose. Peregoy v. Indus. Claim Appeals Office, 87 P.3d 261 (Colo.App.2004).

Generally, ripeness tests whether an issue is real, immediate, and fit for adjudication. Under that doctrine, adjudication should be withheld for uncertain or contingent future matters that suppose a speculative injury which may never occur. Bd. of Dirs. v. Nat'l Union Fire Ins. Co., 105 P.3d 653 (Colo.2005); see also BCW Enters., Ltd. v. Indus. Claim Appeals Office, 964 P.2d 533 (Colo.App.1997)(a request for penalties predicated on a claim that an appeal has been taken in bad faith must await the adjudication of that appeal before it becomes ripe for determination).

As noted by the Panel, employer admitted liability for PPD benefits, and thus, as a matter of law, necessarily denied liability for PTD benefits. See Dyrkopp v. Indus. Claim Appeals Office, supra (PPD benefits and PTD benefits both compensate for a claimant's permanent loss of earning capacity and, therefore, an admission for PPD benefits constitutes an implicit denial of liability for PTD benefits). The MMI determination also signified that claimant's condition had become stable and...